In their July 2022 column in this publication, titled “Concurring and Dissenting Opinions in the Court of Appeals,” Thomas Newman and Steven Ahmuty express dismay that, for the past two years, about half of all of the court’s decisions on the merits have included at least one concurrence or dissent. They note that “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.” And they reason that, because “only the majority opinion states that law,” with “rare exception[s]” concurring and dissenting opinions are “meaningless” and “for naught.” I respectfully dissent. In my view, the concurrences and dissents issued by the court’s judges, as well as the frequency with which those separate writings are issued, provide substantial assistance to litigators practicing at all levels of the judicial system.

Start with practice before the Court of Appeals itself. In that context, separate opinions—particularly dissents—play an invaluable role in helping lawyers argue for a change in the law. In any given case, the existence of a dissent may be the strongest possible signal that judicial minds can differ on the question presented, and that an argument for answering the question differently the next time around may be viable. Additionally, the substance of the dissent often can be incorporated as a key part of the argument. For example, in Matter of Alison D. v. Virginia M., 77 N.Y.2d 651 (1991), the court held that in an unmarried couple, a partner without a biological or adoptive relation to a child cannot be the child’s “parent” for purposes of standing to seek custody or visitation under the Domestic Relations Law. Judge Kaye dissented, contending, among other things, that this interpretation would harm child-caregiver relationships. Twenty-five years later, in Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1 (2016), the court overruled Matter of Alison D., issuing a decision that adopted Judge Kaye’s position and repeatedly cited, quoted, and discussed her Matter of Alison D. dissent.

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