Morrison Cohen Files Landmark Case in New York County Supreme Court Challenging Mandatory Judicial Retirement Age

On October 6, 2025, Morrison Cohen, as co-counsel, filed a landmark case in New York County Supreme Court with significant implications for the state’s judiciary. The petition, brought on behalf of Hon. Robert J. Miller, Hon. Wayne P. Saitta, Hon. Richard J. Montelione and Hon. Orlando Marrazzo, Jr., challenges New York’s mandatory judicial retirement rules, which require judges to step down from regular service at age 70 and from all service at 76, as unconstitutional under the New York Equal Rights Amendment (NY ERA), adopted in 2024.

The suit argues that the retirement rules, first enacted in 1869, amount to blatant age discrimination under the NY ERA, particularly given longer lifespans and existing processes to assess judicial fitness. “As the plain language of the State Constitution demonstrates, there is now a sweeping prohibition on, among other forms of discrimination by the government, age discrimination,” stated the petition.

Plaintiff Hon. Robert J. Miller, Justice of the Supreme Court of New York, Second Judicial District, who recently turned 76, stated that his impending “forced retirement is not only personally devastating, but also institutionally damaging. The appellate courts are burdened with historically high caseloads, and my experience, developed over decades on both the trial and appellate bench, is of continued benefit to the people of this State.”

The case has been covered widely in the press, including in the New York Post, Bloomberg Law, New York Law Journal and The Daily Record.

“This is an historic piece of litigation,” Morrison Cohen Partner Hon. David Saxe, a former Associate Justice in the New York Supreme Court Appellate Division, First Department, and co-counsel for the jurists, told the New York Post. “You’re losing some of the best people available to decide cases and decide appeals. It’s a terrible loss to the judicial system.”

Morrison Cohen previously took on unconstitutional limits on judicial service in 2020, when the firm successfully represented four Appellate Division judges in litigation challenging then–Chief Judge Janet DiFiore and Chief Administrative Judge Lawrence K. Marks after they denied certification to 46 judges statewide to continue serving past the age of 70.

The Morrison Cohen team representing the plaintiffs is led by Y. David Scharf, Hon. David B. Saxe (Ret.), Gayle Pollack and Tracy A. Burnett. Co-counsel is led by Hon. John M. Leventhal (Ret.), Imran H. Ansari and Giovanni Orlando Conti of Aidala, Bertuna & Kamins, P.C.