Despite vacancies, recertified judges await designation
/
A bench photo of the judges of the Appellate Division, Second Department in 2019. Photo via NY Courts
By Jacob Kaye
Several former New York City Appellate Division judges are caught in limbo having been recertified to return to the bench earlier this year but having not yet been designated to the courts they once served.
Justices Sheri Roman, Ellen Gesmer and David Friedman were all cut loose by the Office of Court Administration last year as part of an effort to reduce the agency’s budget. All three were recertified in April 2021 but have not yet been designated by Governor Andrew Cuomo back to the Appellate Division in which they formerly served – despite vacancies on the courts.
“We are obviously concerned because it has always been, in prior certifications, that [judges] get designated within a few days from their certification,” said Queens Supreme Court Justice Carmen Velasquez, who also serves as the president of the Association of Supreme Court Justices of the State of New York. “We're still waiting to see what's going on.”
Roman was first designated by Cuomo to the Appellate Division, Second Department in 2009 and then again in 2019. Friedman was first designated to the Appellate Division, Second Department in 1999 and again in 2016 to the Appellate Division, First Department. Gesmer was first designated to the Appellate Division, First Department in 2016.
The three judges sued the OCA, Chief Judge Janet DiFiore and Chief Administrative Judge Lawrence K. Marks in November 2020, a month before they, along with 43 other judges over the age of 70 in the state were let go.
The lawsuit claimed the OCA “violated their statutory and constitutional duties, committed acts of blatant age discrimination in violation of the New York State and New York City Human Rights Law, and violated state constitutional provisions thereby creating direct conflict with the prerogatives of the other branches of our state government.”
Despite the ongoing lawsuit, Roman, Friedman and Gesmer were among the 33 judges who were recertified by the OCA earlier this year. Should they be designated, the trio will join the 19 judges – of the original 33 – who actually returned to the bench.
“The whole situation of certification is unfortunate,” said recently retired Supreme Court Judge and former Administrative Judge in Queens County Jeremy Weinstein. “But now, we need to put that behind us and put back the qualified people into their respective judicial positions.”
Bar associations, attorneys and former judges have written to the Cuomo administration advocating for the return of the judges, citing their experience and their ability to help reduce the court’s backlog, which, like all courts in the state, has grown larger and larger during the pandemic.
The governor’s office did not respond to request for comment.
“With the currently growing case appellate case volumes, the redesignation of former Appellate Division Justices is a necessary next step,” wrote Philip Katz, the president of the Assigned Counsel Panel for the Manhattan Family Court, First Department. “These justices are indisputably some of the most experienced jurists in our judicial system.”
“The depth and breadth of their experience add experience and expertise to the current appellate jurist collective,” Katz added. “Moreover, having additional jurists on these panels would help ensure that cases are addressed without delay.”
Weinstein said that in addition to being admired by her colleagues, Roman is perfectly suited to take a seat back on the bench in the Appellate Division.
“You want someone with tremendous experience to be on the Appellate Division because of the nature of those cases,” he said. “She's got that experience having served on the Appellate Division for at least a dozen years.
“It's a win-win situation for everybody,” Weinstein added. “There's no learning curve and you're getting somebody who has already passed muster by all the bar associations and has always been found highly qualified.”
Weinstein said he trusts that despite the delay, Roman will soon head back to her former position.
“I would expect the governor, who respects the courts and the state, to put her back in the position that she had because it's just a benefit to everyone,” he said. “And I believe that will happen.”
There are currently three vacant positions in the Appellate Division, Second Department, which serves Queens, Brooklyn, Staten Island, Long Island and the lower Hudson Valley.
In May, Governor Cuomo filled four vacancies in the court with the designation of Justices Joseph Zayas, William Grandison Ford, Deborah Dowling and Lara Genovesi.
