Justice Rolando Acosta. Photo: Rick Kopstein

In a break from longstanding tradition, the Appellate Division, First Department, will reduce its panels from five to four judges beginning in April because it has three vacancies and a judge on medical leave, Presiding Justice Rolando Acosta said.

The move may be temporary but the court faces several obstacles even if Gov. Andrew Cuomo moves quickly to fill the existing vacancies. Justice Marcy Kahn is retiring in late September and Justice John Sweeny will leave at the end of the year because he has not applied to be certificated.

Two of the vacancies go back to 2017 when Judge Paul Feinman was elevated to the Court of Appeals and Justice Karla Moskowitz reached the mandatory retirement age of 76. Justice Richard Andrias retired last year.

“It's pretty self-evident and universally accepted that a five-judge panel is preferable to a four-judge panel,” said New York State Bar Association president Michael Miller. “Unlike the challenges of solving the Byzantine court system we have, this is a problem that's easily solvable. We just need the governor to make the appointments to the appellate division.”

An email requesting a response from the governor's office was acknowledged by his staff but there was no immediate comment.

With the vacancies, four-judge panels are a necessity because there are not enough judges to go around, Acosta said. When there are two-two splits on four-judge panels, a fifth judge has to be brought in to break the tie. Practitioners facing four-judge panels can preserve the right to reargue in front of the fifth judge or the fifth judge can use the record to make a decision.

“I understand and support the goal of keeping the appeals moving,” said New York City Bar Association president Roger Maldonado. “But they're two bad choices from the attorney's point of view. Either the appeals take longer to be heard or you run the risk of having to reargue certain appeals.”

Four-judge panels have been around in the Second Department since 1978 although five judges sit for attorney disciplinary matters. Presiding Justice Alan Scheinkman said five judges are better but it's rare that cases split two-two.

“Having a fifth judge adds another voice. It adds another perspective that could be valuable. In an ideal world, we would sit in panels of five. However, we don't live in an ideal world,” he said. “I don't believe we're letting anyone down or our work isn't quality work because we sit in panels of four.”

With the three vacancies in the First Department and Justice Angela Mazzarelli on medical leave, Acosta said he was forced to make this decision. “We're reluctant to do it,” he said.

Retired First Department Justices David Saxe and James Catterson said the move from five-judge panels means there's less time for judges to prepare for each case and write their opinions.

“What happens is it's 20 percent more work for the bench in an age of increasingly complex calendars,” Catterson said. “Again it's not a knock on the court. You've got to have the judges to throw at it.”

“The problem is no matter how hard the judges work they're going to get to a point where there are not enough bodies,” Saxe said.