Spitzer Names Three Justices To Third Department Bench

The New York Law Journal - By Joel Stashenko - February 7, 2008

ALBANY - Governor Eliot Spitzer yesterday appointed Justices E. Michael Kavanagh (See Profile) and Bernard J. Malone Jr. (See Profile) of the Appellate Division, First Department, to the Third Department, along with Supreme Court Justice Leslie E. Stein (See Profile), who will sit on an appellate bench for the first time.

Mr. Spitzer's selection of the two First Department veterans had been expected for months (NYLJ, Nov. 1, 2007). Both justices live within the Third Department and had been appointed to the Manhattan-based First Department by then-Governor George E. Pataki. Mr. Pataki, a Republican, said he was seeking the best judicial minds when designating the upstaters for the First Department, but the assignments created some hard feelings that the seats did not go to justices from the heavily Democratic First Department.

Justices Kavanagh and Malone, both Republicans, have spent much of the past two months on temporary assignment to the Third Department under an agreement between Presiding Justice Jonathan Lippman (See Profile) of the First Department and Presiding Justice Anthony V. Cardona of the Third (NYLJ, Nov. 23, 2007).

Mr. Spitzer released a statement yesterday praising all three judges as "incredibly accomplished and respected jurists with a wide range of judicial and legal experience." Justice Kavanagh, 64, a former Ulster County district attorney, has been a Supreme Court justice in Ulster County since 1999. He was appointed to the First Department by Mr. Pataki in 2006.

Justice Malone, 64, was appointed by Mr. Pataki to the First Department in 2005, after seven years as an Albany County Supreme Court justice. He is a former assistant U.S. attorney in the Northern District. Justice Stein, 51, a Democrat, was an Albany City Court and acting Albany County Family Court judge before becoming an Albany County Supreme Court justice in 2002. Since 2006, she has been presiding judge of the Rensselaer County Integrated Domestic Violence Part. She will be the second woman on the court.

Justices Malone and Stein graduated from Albany Law School. Justice Kavanagh has a law degree from Villanova University School of Law in Pennsylvania. Both Justices Kavanagh and Malone released statements through Mr. Spitzer's office saying they were pleased to be joining the Third Department.

Justice Stein, also in a statement released by Mr. Spitzer's office, said, "The Third Department hears some of the most important cases in the state, and I very much look forward to working with the many fine jurists on that bench." Mr. Spitzer's selections do not need confirmation by the state Senate. Appellate Division justices earn $144,000 a year.

There were two openings in the Third Department created by last year's retirements due to age of Carl J. Mugglin and D. Bruce Crew III. In addition, Justice Cardona successfully asked Mr. Spitzer to create two new judgeships in the department. When Mr. Spitzer fills the fourth vacancy, the Third Department will have 12 justices.

The Third Department covers 28 counties between the Pennsylvania border to Canada. Its calendars are typically dominated by cases involving state government, especially Workers' Compensation and unemployment insurance matters and challenges to state actions filed by prison inmates.

Mr. Spitzer's appointments yesterday create more openings in the First Department. In addition to selecting replacements for Justices Kavanagh and Malone, he must fill a vacancy created by the departure of Justice George D. Marlow to Dutchess County Supreme Court and to head a statewide ethics education initiative (NYLJ, Oct. 17, 2007).

Mr. Spitzer has already appointed two new judges to the First Department, former Manhattan Supreme Court Justices Karla Moskowitz (See Profile) and Rolando T. Acosta (See Profile) (NYLJ, Jan. 2). The First Department will have 18 judges when it is up to full strength.

- Joel Stashenko can be reached at jstashenko@alm.com.