Dissenting v. New York's Special Duty Rule

Bellacosa in Kircher Illuminated the Inflexibility; Wilson in Howell Sparks Hope for Reform

By Priscilla C. Capuano

Priscilla Capuano is a 2024 graduate of Albany Law School. Prior to attending law school, Priscilla earned her bachelor’s degree from Siena College, where she majored in Philosophy and minored in Creative Arts.

Priscilla interned at the Albany County District Attorney’s Office in the summer of 2022. She continued her work there by completing a field placement over the fall of 2022, and volunteering in the spring of 2023. During the summer of 2023, Priscilla worked as a Summer Associate for Goldman Sachs. In the fall of 2023, she completed a field placement in the chambers of the Honorable Mae D’Agostino.

Priscilla was on Albany Law School’s Criminal Appellate Travel Team where she competed in the 2023 Herbert Wechsler National Criminal Law Moot Court Competition. She also competed in the 2023 Domenick L. Gabrielli Appellate Advocacy Moot Court Competition, where she competed as a finalist, and won the third best oral advocate award. She and her partner won the 2023 McGovern Senior Prize Trials. As the Managing Editor for Production, Research, and Writing, on the Journal of Science and Technology, Priscilla was involved in organizing and running the Journal Write-on Competition in the summer of 2023. She also served as Executive Editor for the Center of Judicial Process from the fall of 2023 to the spring of 2024. She is

starting her legal career as a law clerk in Westchester County.

For decades, the “special duty rule” has been a source of longstanding confusion and controversy in the New York State Courts. Generally, a municipality will not be held civilly liable for injuries resulting from the police’s failure to provide general protection to its citizens, unless the plaintiff can establish the existence of a “special duty.”

The New York State Court of Appeals’ decisions reveal that the special duty exception is narrowly applied to municipal liability cases. The court’s consistently narrow application is apparent even in cases involving gruesome violence against victims and instances of horrific police work. 

Judge Joseph Bellacosa’s 1989 dissent in Kircher v. Jamestown and Judge Rowan Wilson’s 2022 dissent in Howell v. City of New York both showcase the Judges’ disbelief, disapproval, and disappointment in the majority’s decisions narrowly applying the special duty rule in cases with particularly egregious circumstances. 

Moreover, they assert that these cases are more than mere “sympathetic circumstances” decided under a “catechetical” interpretation of the special duty rule, but an opportunity to “adjust the common-law doctrines of negligence and special duty as fairness and justice require.” The question remains whether Judge Wilson’s Court will seize the opportunity to make appropriate adjustments or adhere to the narrow application of the special duty rule as “settled law.”

_____________________

To read the paper, open HERE.

Center Editorial Board, 2024-2025

Director

Vincent Martin Bonventre

Editor-in-Chief

Matt Montag is a third-year student at Albany Law School. Prior to attending Albany Law, Matt worked for four years as a legislative aide in the Colorado State Senate.

Matt is a member of the Albany Law Review and the Albany Law School Tenant’s Rights Pro Bono Project. Last year, he completed a field placement with the Honorable Mae A. D'Agostino, District Court Judge for the Northern District of New York. He has also interned with the Legal Aid Society of Rochester, New York, where he represented tenants facing eviction, and with Read and Laniado, LLP, a law firm specializing in renewable energy and utility law. This fall, Matt is participating in the Immigration Law Clinic at the Justice Center.

Matt holds a bachelor’s degree in Journalism and Mass Communication with a minor in Political Science from the George Washington University. His other experiences include interning for Congresswoman Louise Slaughter; working on various political campaigns, including as the campaign manager for a victorious state house candidate in Colorado; and serving as a COVID-19 contact tracer.  

Executive Editor

Hannah Hoyt is a member of the class of 2025 at Albany Law School. Prior to law school, she graduated Summa Cum Laude from Union College. She earned a bachelor’s degree in Political Science with departmental honors and minors in Sociology and Science, Medicine, and Technology in Culture.

Throughout college, Hannah worked part-time for the Wadsworth Center of the New York State Department of Health. She is a contributing author to an article published in the Journal of Clinical Microbiology, titled “Determination of Genomic Epidemiology of Historical Clostridium perfringens Outbreaks in New York State by Use of Two Web-Based Platforms: National Center for Biotechnology Information Pathogen Detection and FDA GalaxyTrakr.”

At Albany Law, Hannah is an Executive Board Member of the Tenants’ Rights Pro Bono Project and has participated in the Donna Jo Morse Client Counseling and Negotiations Competitions. In the Spring of 2024, she joined the Community Economic Development Clinic in Albany Law’s Justice Center.

During the last two summers, Hannah was an intern for the City of Albany Corporation Counsel.

Executive Editor

Alexandra Manoussos is a third-year student at Albany Law School on a Founders’ Scholarship. She is a liaison for the New York State Academy of Trial Lawyers and is currently working for a New York City personal injury firm as a law clerk. She previously clerked at the boutique firm of Powers & Santola, LLP.

Prior to law school, Alexandra earned Bachelor’s Degrees in English and Politics and International Affairs at Wake Forest University.  Between undergraduate school and law school, Alexandra worked as a Co-Director for field operations in a county political campaign. 

Executive Editor

Rachel Proctor will graduate in December 2024 from Albany Law School. Prior to attending law school, Rachel earned a Bachelor’s Degree in economics and a Master of Business Administration at St. John’s University. 

Following the bar examination, Rachel will be working as an Attorney at a boutique Matrimonial and Family Law Firm that she has called home since 2018, The Law Firm of Poppe & Associates, PLLC, based in New York, NY.

In Rachel’s free time, she enjoys spending summers in the Hudson Valley with her family and friends, winemaking with her fiancé, Michael, and beagling at the local hunt club with her beagle, Nebbiolo.

Executive Editor

Andrew Fay is a second-year student at Albany Law School on a President’s Scholarship. He earned his Bachelor’s Degree in both Physics and History at Davidson College, where his undergraduate dissertation examined developments in the Eisenhower Administration’s outer space policy following the launch of Sputnik I. In 2020, he graduated from the University of Edinburgh with a Master of Science in Contemporary History, where he examined the Nixon Administration’s communications policy in Nixon’s first term. During and after the pandemic, Andrew worked in several administrative, policy, and appropriations roles in Washington, D.C., which inspired him to apply to law school.

After interning with the Chambers of Hon. Lawrence E. Kahn at the Northern District of New York this past summer, Andrew looks forward to continuing his legal education with an eye toward Constitutional Law and Civil Litigation. He currently serves as subeditor on the Albany Law Review, a fellow with the Government Law Center, and as a Sponsler Fellow for Civil Procedure.

_______________________________________

For previous years' boards, click HERE.  

The Supreme Court’s Code of Conduct

An Analysis and the Likelihood of Success

By Kayla A. Curtin

Kayla Curtin is a 2024 graduate of Albany Law School. She was raised on her family’s potato farm in rural Steuben County, New York.

Prior to attending law school, Kayla earned dual bachelor’s degrees from Le Moyne College in history and political science. During law school, Kayla served as a law clerk at the Barbaruolo Law Firm and served as a bankruptcy fellow at Legal Aid of Western New York (LAWNY).

Kayla is beginning her legal career as an Assistant Public Defender for the Monroe County Public Defender’s Office in Rochester, New York.

Scandal is not a new concept to the United States Supreme Court. In the last several years, members of the current Roberts Court have faced scrutiny from the American public regarding their activities outside the courtroom. On November 13, 2023, the United States Supreme Court issued its first-ever Judicial Code of Conduct, based on the Judicial Code of Conduct set forth by the American Bar Association and the United States Code of Judicial Conduct.

The Supreme Court’s Code of Conduct is a direct response and an attempt at bandaging the oozing wound of controversy that has surrounded the Roberts Court. But the Supreme Court has been hearing cases where the Justices should have recused themselves due to acts of impropriety and other causes for decades. Despite all of this, the Code lacks methods of enforcement and other important procedural details for the Justices to follow regarding disqualification and recusal.

The first part of this paper will introduce the three codes of conduct and a brief background on their effectiveness, focusing on disqualification and recusal. The second part of this paper is a comparison of the three codes of conduct. Here, the paper makes an inference as to whether the Supreme Court’s Code goes far enough in terms of disqualification and recusal. Further, the paper examines whether the Justices are capable of being the ones to decide when they are disqualified or should recuse themselves. The third part of this paper is an analysis of past cases in which judges have refused to recuse themselves.  It also infers, based on the Supreme Court’s Code, whether the result would be different if the same or similar situation were to occur again. The fourth and final part of this paper is a conclusion and a proposal that if the Supreme Court does not propose additional canons or an effective enforcement mechanism, the Code may come to be known as a flimsy Band-Aid to cover a long history of controversy.

Author's Note: While this paper is critical of the judicial system, its purpose is not to lead readers to believe all judges fail to abide by the codes of conduct mentioned in this paper. Rather, this paper focuses on some of the more infamous failures to recuse, encourages all judges to continue holding themselves accountable, and acknowledges the importance of a partisan judge.

_____________________

To read the paper, open HERE.

Supremely Conservative Replacements

By Paige Gottorff

Paige Gottorff is a recent graduate of the Class of 2024 at Albany Law School.

Prior to attending law school, Paige earned a degree in Legal Studies at Grand Valley State University, Michigan, where she was a member of the Women’s Lacrosse Team. 

At Albany Law School, Paige served as Managing Editor for Research and Writing for the Government Law Review, Vol. 17, where she worked on the Writing Competition and edited second-year students’ notes and comments. She was also a member of the Albany Law Negotiations Travel Team and the Albany Law Student Trial Advocacy Competition Travel Team.  Additionally, Paige competed in numerous in-house moot court competitions.

Following the bar examination, Paige will be working as an Associate Attorney for Vahey Law Offices, PLLC, in Rochester, NY.

The United States Supreme Court has recently been on a history-making streak.  And not for admirable reasons, but for the alarming regularity with which the Court has been stripping individuals of their rights.

The current bench is the most conservative panel the Court has seen in ninety years.  This is frightening when pondering the trend expected regarding basic human rights cases about which the Court grants certiorari and opts to conceal from public scrutiny by deciding through the shadow docket.

Since the earliest of times, death has been a valid punishment for crimes with minuscule societal impact.  As history progressed, methods of execution began at the most barbaric levels and slowly shifted to consider the ethics of executing a fellow human being.  Presently, “more than seventy percent of the world’s countries have abolished capital punishment in law or practice.”  But in 2022, the United States was in the top five of the world’s countries that performed executions--fewer only than China, Iran, Saudi Arabia, and Egypt.

As a vast majority of death penalty cases are petitioned to the Supreme Court, the nine Justices who don the black robe are the same ones who “okay” the executions.  How has the United States gone from abolishing the death penalty to reinstating it and using it the fifth most frequently in the world?  A closer look at the individuals who have made and are currently making these critical decisions may give us a sense of what is really going on at this country's “Court of Last Resort.”

_______________________________

To read the paper, open HERE.

Roberts’ Strategy as Chief Justice

Narrow or Not Amidst Recent Court Shifts?

By Priscilla Capuano

Priscilla Capuano is a graduating third-year student at Albany Law School. Prior to attending law school, she earned her bachelor’s degree from Siena College, where she majored in Philosophy and minored in Creative Arts.

While in law school, Priscilla interned at the Albany County District Attorney’s Office in the summer of 2022. She continued her work there by completing a Field Placement over the fall of 2022 and by volunteering in the spring of 2023. During the summer of 2023, Priscilla worked as a Summer Associate for Goldman Sachs. In the fall of 2023, she completed a field placement in the chambers of the Honorable Mae D’Agostino.

Priscilla was a member of Albany Law School’s Criminal Appellate Travel Team where she competed in the 2023 Herbert Wechsler National Criminal Law Moot Court Competition. She also competed in the 2023 Domenick L. Gabrielli Appellate Advocacy Moot Court Competition, where she was a finalist, and won the third best oral advocate award. She and her partner won the 2023 McGovern Senior Prize Trials.

As the Managing Editor for Production, Research, and Writing on the Journal of Science and Technology, Priscilla was involved in organizing and running the Journal's Write-on Competition in the summer of 2023. Until graduation, she is continuing her involvement in the Journal of Science and Technology and is serving as an Executive Editor for the Center of Judicial Process.

Amidst scandal, controversial decisions, and dramatic ideological shifts on the Court, Chief Justice Roberts attempts to maintain the Court’s reputation and legitimacy.

However, Roberts does not wield his former power as the deciding vote in closely divided cases. Roberts’ diminished power on the Court was hastened by the replacement of two liberal fixtures with new conservative Justices, tipping the balance of the Court to an overwhelmingly conservative majority. 

While Roberts does not dominate the Court as he did in recent years, as Chief Justice, he decides who writes the majority as long as he is not in dissent. The author of the majority opinion has a profound impact on the law, and has discretion over how broadly or narrowly the Court rules. Roberts’ proclivity to render narrow rulings is now in conflict with the conservative majority’s broad and dramatic decisions. Furthermore, a non-partisan and legitimate court is not easily achieved on a Court that renders partisan and often controversial decisions.

Thus, it is questionable how Roberts will achieve his goals on the distinctly conservative Court. Although it is unlikely that Roberts will regain his former power or lead a Court that is above legitimate reproach, he can implement different strategies to maximize results that best align with his vision for the Court.

_______________________________

To read the paper, open HERE.

Being Chief Judge with Rowan Wilson and Jonathan Lippman, April 25

Albany Law School's Annual Cooke Symposium

Open to the Community

Rowan Wilson and the Injured Plaintiff

Trying to Avoid Insult upon Injury During the DiFiore Court

By Lukas Moller

Lukas Moller is a 2023 graduate of Albany Law School. He grew up in Altamont, NY. Prior to law school, Lukas received his Bachelor of Arts, Summa Cum Laude, in Honors History from SUNY Albany.

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.

________________________________

To read the paper, open HERE.

The NY Court of Appeals' Ludwig Decision on Prior Consistent Statements

A Hearsay Exception that Challenges the Rights of the Accused

By William J. Matthews

Will Matthews is a third-year student at Albany Law School. Prior to attending law school, he worked for Via Aquarium as an Aquarist and worked for Ducks Unlimited as a GIS Analyst Intern. He graduated from Paul Smith’s College with a degree in Wildlife Science.

Recently, Will organized Place, Space, & Justice in a Climate Migration World, the Albany Law Review Spring 2024 Symposium.

Post-graduation, Will will be working as a Staff Attorney at the United States Court of Appeals for the Second Circuit.

In New York, a complainant’s prior consistent statements are generally inadmissible in court as hearsay, unless an exception applies. In People v. Ludwig, the New York Court of Appeals upheld the admission of the prior consistent statements of a child in a child sexual abuse trial. The Court held that the testimony fell within the existing exception for prior consistent statements offered to complete the narrative of events leading to the investigation and arrest of the defendant.

The Court’s majority opinion, authored by Judge Susan Read, was joined by Judges Victoria Graffeo, Eugene Pigott, and Sheila Abdus-Salaam. The Court's ruling was questioned in a separate concurrence by Judge Robert Smith, who failed to see why the investigative process required explaining. Chief Judge Jonathan Lippman, joined by Judge Jenny Rivera, echoed Judge Smith’s concerns in a dissenting opinion. The dissenters added that prior applications of the “completing the narrative” exception were accompanied by effective limiting instructions, ensuring that jurors did not consider the evidence for the truth of the matter asserted.

People v. Ludwig is a challenging case that forces readers to weigh the importance of the rights of the accused with the natural human desire to protect the most vulnerable among us. This paper uses the three distinct opinions written in Ludwig as a backdrop for a larger conversation about the Court of Appeals’ willingness to stretch the applicability of exceptions to the general rule against the admissibility of prior consistent statements when the complainant is the victim of sexual assault or abuse, particularly children.

Is it appropriate to erode the rights of the accused when the alleged victim is a sexually abused child? Or should the rights of the accused be treated with absolute reverence, even when it prevents a child sex victim from being able to fully tell their story in court?

_____________________

To read the paper, open HERE.

New York Court of Appeals: Why I Loved Sandra Day O'Connor

Gender and sexual orientation equality, the right to choose, diversity, religious liberty, reasonableness in search and seizure and criminal punishment, etc.

Wisdom, decency, and realism.

Source: Annenberg Public Policy Center

Why I Loved Sandra Day O'Connor  
on New York Court Watcher. 
Vin / Prof B