On June 1, 2017, the Commission on Judicial Nominations issued a list of seven candidates to fill the vacancy created by the passing of Judge Sheila Abdus-Salaam. This was two months ahead of the schedule provided for by the Judiciary Law. Gov. Andrew Cuomo had asked for the list early so that a candidate could be confirmed prior to the legislature breaking for the summer, which is currently slated to occur on June 21. From that list, Governor Cuomo has nominated current Appellate Division, First Department Associate Justice Paul Feinman. The governor's press release notes that Justice Feinman has served as a judge in New York for more than 20 years and would be the first openly gay person to serve on the Court of Appeals.

In this month's column, we address an appeal arising out of the proposed development at the former Shea Stadium site. In Matter of Avella v. City of New York, the majority of the Court of Appeals ruled that the development known as “Willets West” cannot proceed because the legislature has not clearly and expressly provided that the parkland underlying the development site can be freed from serving as a park space, as is required under the public trust doctrine. The majority opinion was authored by Judge Rowan Wilson and joined by Judges Jenny Rivera, Leslie Stein, Eugene Fahey and Michael Garcia. The lone dissent was authored by Chief Judge Janet DiFiore, who reached the opposite conclusion with equal vigor, finding it unambiguous that the legislature had already freed the 77 acres from serving as a park back in 1961 when the construction of Shea Stadium was approved.

Background

The facts are relatively straightforward. In 1961, the legislature passed Administrative Code §18-118, authorizing the City of New York to rent or lease 77 acres of Flushing Meadows Park to others for use as a stadium “with appurtenant grounds, parking areas, and other facilities.” The original goal of this legislation was to establish a second Major League Baseball team in the city. The statutory language further authorized the city to enter into contracts giving others the right to use the stadium and grounds, parking areas and other facilities for any purpose that benefits the people of the city, recreation, entertainment, amusement, education, enlightenment, cultural development or betterment, and improvement of trade and commerce, including for sporting events, musical performances, business conventions, and meetings. Shea Stadium was developed and operated on the site as the Mets' home for almost 50 years. In 2008, Shea Stadium was demolished. Citi Field, the new stadium, was built next to the original site, which has been paved over and now serves as a parking lot for Citi Field.