Trying to Avoid Insult upon Injury During the DiFiore Court
By Lukas Moller
While at Albany Law School, Lukas interned for the Albany County District Attorney’s Office, Goldman Sachs Ayco Personal Wealth Management, and the United States Attorney’s Office for the Northern District of New York.
Lukas joined Goldman Sachs Ayco Personal Wealth Management after graduation, focusing on tax, trust and estates, and securities matters. Lukas wrote this paper for Professor Bonventre’s Court of Appeals Seminar.
The great Court of Appeals Judge Benjamin Cardozo characterized dissents as “the gladiator making the last stand against the lions.”[1] For now-Chief Judge Rowan Wilson, the lions had been the more conservative majority in the DiFiore Court.
Judge Wilson joined the Court of Appeals in 2017 when he was selected by then-governor Andrew Cuomo after six nominations to the court.[2] The DiFiore Court was riddled with split decisions and unsigned memoranda, with strong dissents often spearheaded by then-Associate Judge Wilson and Associate Judge Jenny Rivera.
The attention delegated to the minority opinions has been dominated by criminal procedure.[3] Dissents by Judge Wilson, such as those in People v. Tiger[4] and People v. Dawson,[5] have gained notable attention for the “indifference to justice” by the majority to highlight what many see as a weakened court.[6] But more attention should be given to civil cases, especially personal injury cases, both for what they say and what they do not say.
Much like in criminal cases, Judge Wilson’s decisions in the personal injury context provide insight into the direction that he plans to steer New York's highest court as the new Chief Judge. This paper will focus on the opinions of Judge Wilson, mostly dissents, in divided court decisions in plaintiff injury cases to contextualize the frame of mind of the DiFiore Court and Wilson's disagreement therewith.
[1] BENJAMIN N. CARDOZO, LAW AND LITERATURE AND OTHER ESSAYS AND ADDRESSES 34 (F.B. Rothman 1986).
[2] Vincent Bonventre, NY Chief Judge Nominee Rowan Wilson (Part 1), NEW YORK COURT WATCHER (Apr. 15, 2023), http://www.newyorkcourtwatcher.com/2023/04/ny-chief-judge-nominee-rowan-wilson.html.
[3] See Symposium, The Role of the “Victim” in the Criminal Legal System: Rotten Social Background and Mass Incarceration: Who Is a Victim?, 87 BROOK. L. REV. 1299 (2022); Jonathan Cantarero, Fixing Appeal Waivers in New York, 84 ALB. L. REV. 189, 207 (2021).
[4] People v. Tiger, 32 N.Y.3d 91 (2018).
[5] People v. Dawson, 38 N.Y.3d 1055 (2022).
[6] Vincent Bonventre, NY Chief Judge Nominee Rowan Wilson (Part 2), NEW YORK COURT WATCHER (Apr. 16, 2023), http://www.newyorkcourtwatcher.com/2023/04/part-2-ny-chief-judge-nominee-rowan.html.
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To read the paper, open HERE.
