Ever since the New York State Constitutional Convention of 1894, the “primary role of the Court of Appeals is to unify, clarify, and pronounce the law of New York State,” rather than considering the justice of particular cases on their facts, a function assigned to the Appellate Division, with rare exceptions. 2021 Clerk’s Annual Report to the Judges of the Court of Appeals, 3 (Annual Report); Henry Cohen & Arthur Karger, The Powers of the New York Court of Appeals, 22-23 (1952).

The court performs that function by its published decisions of the appeals it has considered and decided. When decisions are not unanimous, it is the majority decision, not a concurring or dissenting opinion, that determines the outcome of the case before the court and establishes the law of New York.

In 2021, there were concurring opinions in 13 of the 81 decided appeals (16%) with two separate concurring opinions in four of those cases. There were also dissents in 32 cases (39.5%) with dissenting opinions in 31 of them; one was a decision list entry stating two judges “dissent for the reasons stated in the dissenting memorandum at the Appellate Division.”

So far this year, there have been 28 dissenting opinions in 58 decided appeals (48.3%); since seven appeals (Nos. 36, 38-43, Columbia Memorial Hospital and Maple Medical cases) were heard together and decided in a single opinion with a unanimous affirmance, treating them as one reduces the denominator by six and increases the percentage of dissents to 53.8%. Three judges wrote or joined these dissenting opinions. Judge Rowan Wilson wrote 15 and joined in nine others. Judge Jenny Rivera wrote 12 and joined in 11 others. Judge Shirley Troutman wrote one dissent and joined Judges Wilson and Rivera in five.

The result is that today the court is sharply divided and no longer able to reach a consensus and deliver unanimous decisions in a high percentage of cases, as in did it years past. For example, from 1998-2008, unanimity was reached between a low of 72.44% in 2005 to a high of 92.78% in 1999, and, more recently, in 2016 in 83.55% of the cases. 1998-2008 and 2016 Annual Reports. It seems timely, therefore, to consider the role of concurring and dissenting opinions in a state court of last resort.

Concurring Opinions

“Upon occasion, the opinion of a majority will not actually be erroneous, yet it will verge upon error by straining a legal doctrine to its utmost. In such a situation, a considered and well-stated concurring opinion can be of value by warning that the doctrine must not be pressed too far. In other instances, a majority may announce a doctrine which is sound when applied to the facts before the court, but which would be wholly unsound if given a general application. Here again, a timely concurring opinion may suffice to check any extension of the doctrine, and thereby better our jurisprudence.” Moorhead, Concurring and Dissenting Opinions, 38 Amer. B. Assn. J. 821, 823 (1952), reprinted with permission in Leflar, Appellate Judicial Opinions, 209 (1974).

In other cases, a concurring judge may believe the majority did not go far enough when creating or extending some legal right to recovery. Such a concurring opinion is an invitation for a future litigant to urge the court to extend the limited position taken by the majority. It is a presentation of arguments that could be raised by a would-be appellant who shares the concurring judge’s views. This may be done briefly in an expanded outline noting the arguments favoring the desired extension with citation of supporting authorities, or, as is sometimes the case, at great length.

Rivera’s 22-page concurring opinion in Greene v. Esplanade Venture Partnerships, 36 N.Y.3d 513, 526-48 (2021), is a good example of the latter. It presents forceful, and to our minds very persuasive, arguments.

In Greene, plaintiff-grandmother was standing near her two-year old granddaughter when both were struck by debris falling from the façade of a building that killed the grandchild. The issue presented was whether the grandmother could pursue a claim for bystander recovery under a “zone of danger” theory. The majority, in a lengthy decision with a narrow holding, concluded plaintiff could pursue her action as the grandchild was “immediate family” for the purpose of applying the zone of danger rule. Wilson, rather than dissent, “concur[red] in the narrow holding” of the majority. 36 NY3d at 549.

Rivera’s concurring opinion begins, “The Court has missed the moment,” and provides the following reasons why she believes this to be so.

(1) “On this appeal, we could have discarded [the zone-of-danger rule that limits recovery for infliction of emotional distress to certain family members put within harm’s way by defendants’ conduct], which the Court knew then to be arbitrary and which served merely as a legally sanctioned excuse for “holding strict rein on liability.” 36 NY3d at 526-27 (citation omitted).

(2) “We could have explained that basing a right of recovery on whether a plaintiff was physically near to the injured or killed person leads to absurd results.” Id. at 527.

(3) “On this appeal, we could have discarded the Court’s additional limitation that a person within the zone of danger must be the third party’s ‘immediate family’ member, defined strictly by marriage and degrees of consanguinity (see Bovsun, 61 NY2d at 233 n 13; Trombetta v Conkling, 82 NY2d 549, 553 [1993]).” We would be justified in rejecting this outdated, patriarchal, and parochial definition, because families are formed not solely by matrimony and blood but also with bonds of friendship and love.” Ibid.

(4) “[W]e could have acknowledged that our rule was formed around the Court’s assumption that a less stringent rule would lead to ‘unduly burdensome liability’ ( Tobin, 24 NY2d at 615), and then recognized that—as the experiences of other jurisdictions have proved—this concern is overstated … . We should have taken this opportunity to “reject[ ] as a ground for denying a cause of action that there will be a proliferation of claims.” Ibid.

(5) “[T]he Court could have adopted a rule premised on the fundamentals of tort law—foreseeability, causation, and discernable harm—rather than a rule overwhelmingly concerned with assumed “unduly burdensome liability.” 36 N.Y.3d at 528.

Because Rivera thought the “majority’s small step is inadequate and solidifies an indefensible jurisprudence for the unforeseen future,” she wrote “separately to explain why our rule should be that a person may recover for the emotional distress caused by perceiving the serious injury or death of any person with whom they shared a strong personal and loving bond. Alternatively, a person may recover if they contemporaneously observed the serious injury or death of another, regardless of their relationship, if they were at risk of immediate and serious physical harm from the defendant’s conduct.” Ibid.

It required just slightly over one page for Rivera to present her powerfully made, yet succinct, five points. The remaining 20 pages of the concurring opinion are merely arguments in support of the position she would like to see adopted if and when another “zone of danger” case comes before the court for decision. They would make an interesting law review article.

Dissenting Opinions

Two dissents in the Appellate Division will allow the losing party to take a further appeal as of right to the Court of Appeals (CPLR §5601(a)), while a single, forceful dissent below may resonate well with at least two judges and persuade them to vote to grant leave to appeal in civil cases (CPLR §5602(a)). A dissent in the Court of Appeals performs no such service. And, if it is thought that a well-reasoned, comprehensive dissent may be adopted by a majority composed of different judges if the same issue comes before the Court in the future, Chief Judge Lehman sought to discourage that from happening in Semanchuck v Fifth Ave. 37th St., 290 NY 412, 420 (1943), where he wrote:

Three judges, including the writer of this opinion, dissented from the decision in the earlier case, insofar as it held that the general contractor was not, under the contract, entitled to indemnity from the subcontractor. The controversy over the applicable rule to be followed in the construction of the indemnity agreement has been resolved by that decision. The authoritative force of a decision as a precedent in succeeding cases is not determined by the unanimity or division in the court. The controversy settled by a decision in which a majority concur should not be renewed without sound reasons, not existing here.

Of course, as Chief Judge Charles D. Breitel later stated “it would be foolhardy not to recognize that there is potential for jurisprudential scandal in a court which decides one way one day and another way the next; but it is just as scandalous to treat every errant footprint barely hardened overnight as an inescapable mold for future travel.” People v. Hobson, 39 N.Y.2d 479, 488 (NY 1976).

Dissents in a state court of last resort should not be written for self-gratification, or to gain publicity and enhance an individual judge’s reputation for forensic skills or linguistic ability, or because the reporting judge was unable to muster a majority and didn’t want all the time and effort that went into his or her report to be wasted, or even because a judge feels strongly that the majority is just dead wrong. They should be the rare exception, not commonplace.

In an article published in the Law Journal on June 16, 2021, “Our Unique New York Court of Appeals,” former Chief Judge Sol Wachtler sought to discourage dissents, noting: “Dissenting opinions are often praised by writers of commentaries and academics when those dissents reflect the views of the commentator; however, that flattery should not be garnered at the expense of the institutional integrity of the court. The multiplicity of opinions from a court of last resort often confuses those who are bound to follow its precedence.”

An example of a meaningless dissent appears in Ferreira v. City of Binghamton, __N.Y.3d __, 2022 WL 837566 (March 22, 2022), an action that stems from the City of Binghamton’s police officers obtaining and executing a no-knock search warrant for an apartment in which they believed an alleged armed and dangerous felony suspect (Michael Pride) resided. A SWAT team, led by Police Officer Kevin Miller breached the door and entered the apartment where they encountered plaintiff (Jesus Ferreira), who had slept on the living room couch near the front door. Officer Miller shot plaintiff, who was unarmed, in the stomach, causing serious injuries. Miller claimed plaintiff advanced towards him, and he mistook an Xbox controller in plaintiff’s hands for a handgun. Plaintiff maintained that he did not leave the couch, did not have the controller in his hand, and Miller shot him as soon as the door opened. 2022 WL 837566 at *1.

Plaintiff’s federal court action against the city, its police department, Officer Miller and others included a state law negligence claim contending that the city breached a special duty owed to him. At trial, while a jury exonerated Miller, finding he had not acted negligently, the jury found the city “liable for negligence with respect to the incident…under a respondeat superior theory” and awarded plaintiff $3 million in damages, with 90% apportioned to the city. 2022 WL 837566 at *2.

Both plaintiff and the city moved for judgment as a matter of law or, alternatively, a new trial. The district court denied plaintiff’s motion and granted the city’s motion concluding that “New York law required that plaintiff demonstrate that the city owed him a special duty and no record evidence supported a special duty here. The court noted that, in any event, the governmental immunity defense would bar plaintiff’s claim against the city.” 2022 WL 837566 at *2.

Upon plaintiff’s appeal, the U.S. Court of Appeals for the Second Circuit upheld a portion of the district court’s order, explaining that “‘the jury could reasonably conclude that Miller was not negligent in believing himself threatened and shooting plaintiff’ [975 F.3d at 268].” 2022 WL 837566 at *2.

As for the district court’s grant of judgment as a matter of law to the city, the Second Circuit “first determined that the governmental function immunity defense did not protect the city from liability because plaintiff had ‘elicited sufficient evidence to support a jury finding that the city, through the actions of its employees in the police department and SWAT unit, violated established police procedures and acceptable police practice’ by ‘failing to conduct adequate pre-raid surveillance of the residence or gather other intelligence” (id at 272).” 2022 WL 837566 at *2.

The Second Circuit, certifying a question that was accepted by the Court of Appeals, asked whether New York’s “special duty” requirement applies “to claims of injury inflicted through municipal negligence” or only to claims premised upon a municipality’s negligent “failure to protect the plaintiff from an injury inflicted other than by a municipal employee.” 975 F.3d 255, 291 (2d Cir 2020).

The Court of Appeals’ answer, as it appears in the first paragraph of the majority’s 21-page opinion by Judge Madeline Singas, was:

Consistent with our precedent and the purpose of the special duty rule, we reiterate that plaintiffs must establish that a municipality owed them a duty when they assert a negligence claim based on actions taken by a municipality acting in a governmental capacity. We further clarify that plaintiffs may establish a special duty when a municipality, acting through its police force, plans and executes a no knock search warrant at a person’s home, and that such a duty runs to the individuals within the targeted premises at the time the warrant is served.

2022 WL 837566 at *1.

In the course of its lengthy decision, in addition to the elements needed to be proved to sustain the negligence cause of action, the majority discussed the governmental function immunity defense that may be pleaded by a municipality and “provides immunity for the exercise of discretionary authority during the performance of a governmental function” (2022 WL 837566 at *4, citing Turturro v. City of New York, 28 N.Y.3d 469, 479 (2016)), and “whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose” (2022 WL 837566 at *3, citing Applewhite v. Accuhealth, 21 N.Y.3d 420, 425 (2013)).

Wilson, joined by Rivera, dissented in a 23-page opinion, the substance of which we agree with completely.

The ‘special duty’ doctrine is not a contraction of the circumstances under which a plaintiff could establish a claim for negligence; it is, as its name suggests, an expansion that allows a claim of negligence to proceed even when no ordinary duty exists.

Often, recovery in actions where a plaintiff has properly pleaded or proved a claim of negligence against a governmental actor will be blocked by governmental function immunity, but that is not a reason to incorporate immunity-related concepts into the law of negligence; that law is the same whether the actor is private or public.

2022 WL 837566 at *10.

In the above referenced article, Judge Wachtler, wrote: “The Circuit in certifying a question is interested in the holding of a majority of the New York Court of Appeals as to what New York law is and not what individual judges think the law is or should be.” He quoted former Chief Judge Stanley Fuld saying, “If the majority of the Court interprets a statute in a certain way, what difference does it make if another judge or judges interpret it otherwise.”

Since the Second Circuit is obliged to apply state law in deciding the appeal before it, and only the majority opinion states that law, the considerable time and effort that must have gone into Wilson’s crafting the remaining 20 pages of his forceful dissenting opinion were for naught; as well as the time spent by his law clerks and the other judges and their clerks in reading and commenting on the circulated draft dissent.

Query for All the Judges

(1) Would your time and talents, and those of the ample resources available to you, be put to a better use if the court accepted and decided more appeals than just 81 in 2021 or 58 so far this year?

For decades the court maintained its long “tradition of prompt disposition of appeals following oral argument or submission” even when deciding more than 200 appeals a year. 2015 Annual Report, 6-7.

(2) Does the opportunity for the court to correct error committed by the lower courts and do “substantial justice”—a power specifically granted to it by the New York State Constitution, Article VI, §3(6)—in cases found to have been wrongly decided, of which there are a great many, outweigh whatever value individual judges may think lies in writing long concurrences and dissenting opinions, however well-written, thoroughly researched and tightly reasoned they may be?

The following statistics suggest the answer should be “Yes.”

In 2020, 45% of decided civil appeals resulted in a reversal while 8% in a modification. In criminal appeals, 62% resulted in a reversal. In 2021, 49% of civil appeals resulted in reversal and 3% in modification. In criminal appeals, 39% reversal and 4% modification. 2021 Annual Report, Appendix 4.

Thomas R. Newman is of counsel to Duane Morris and author of ‘New York Appellate Practice’ (Matthew Bender). Steven J. Ahmuty Jr. is retired from Shaub, Ahmuty, Citrin & Spratt. They are members of the American Academy of Appellate Lawyers.

Reprinted with permission from New York Law Journal, © ALM Media Properties LLC. All rights reserved.