Three judges await designation as Cuomo prepares to leave

August 12, 2021 Jacob Kaye

speaks during a news conference in New York on Monday, April 19, 2021. New York’s comptroller has asked the state attorney general’s office to launch a criminal investigation into whether the governor used state resources to write and promote his book on leadership in the COVID-19 pandemic

Gov. Andrew Cuomo. Shannon Stapleton/Pool via AP

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With the clock ticking on his final days in office, Gov. Andrew Cuomo could still move to designate several former New York City Appellate Division judges back to the bench.

Justices Sheri Roman, Ellen Gesmer and David Friedman are all awaiting designation from the governor’s office after being recertified to the bench earlier this year.

The three judges were among the 46 judges over the age of 70 who were denied recertification in 2020, only to be invited back by the Office of Court Administration in April.

Despite their recertification, Roman, Gesmer and Friedman have not yet been assigned back to the bench by Cuomo – because all three have already been elected, their appointment only needs the governor’s approval. Now, Cuomo is less than two weeks away from his last day in office and advocates are pushing for the judges’ designation before the governor leaves for good.

“He has 14 days to clean up his desk and I’m hoping that he designates our judges, because our judges don’t need the approval of the of the Senate, they are already elected,” 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. “That would be very good and is extremely important.”

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. Both Roman and Friedman have served in the Appellate Division, Second Department at some point in their careers.

Under normal circumstances, judges are almost immediately designated to the bench after being recertified or appointed.

“Normally, you have a position, you’re recertified, you’re immediately redesignated – period,” said election attorney Jerry Goldfeder of Stroock & Stroock & Lavan. “Either the governor is going to clean all this up before he leaves, or it’s going to be on [Lieutenant Governor Kathy Hochul’s] desk [when she assumes the office of the governor].”

Goldfeder said that he thinks the governor should take action now and designate the judges before he leaves office, but is unsure if it will actually happen.

“He should immediately, before he leaves office, redesignate the judges who were sitting in the Appellate Division so that they can continue their work,” he said. “It’s important that these vacancies be filled, but I would be surprised if Governor Cuomo filled them on his way out. I think that [soon-to-be] Governor Hochul will have to deal with that.”

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 filed suit against the OCA, Chief Judge Janet DiFiore and Chief Administrative Judge Lawrence K. Marks in November 2020, a month the OCA officially cut the judges for what the agency said were budgetary reasons.

The lawsuit alleges that 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.”

Though it has yet to reach the governor’s desk, a bill that passed the State Legislature earlier this year would make it so that all judges over the age of 70 are automatically recertified should they meet the state’s requirements and should there be a need for them.

Unless the bill is sent to the governor in the next 12 days, it either will or won’t be signed into law by Hochul.