THE HON. PAUL G. FEINMAN: A NEW VOICE ON THE COURT OF APPEALS.

• Author: DeFazio, Dena M.
• Position: New York Court of Appeals

1. INTRODUCTION

   The Honorable Paul G. Feinman was appointed to the New York State Court of Appeals in 2017. (1) A lawyer and long-time judge, Judge Feinman graduated from Columbia College, Columbia University in 1981, from the University of Minnesota Law School in 1985, and studied at France's Universite de Paris VII, Universite de Paris II, and Universite de Lyon III. (2) His legal career began at the Legal Aid Society of Nassau County, where he worked as a Staff Attorney in the Appeals Bureau, before moving to the Criminal Defense Division of Manhattan's Legal Aid Society. (3) He also served as a judicial clerk for the Hon. Angela M. Mazzarelli in New York State Supreme Court and in the Appellate Division, First Department. (4)

   Judge Feinman's judicial career began in 1996, when he was elected to the Civil Court of the City of New York, followed by assignment to the Criminal Court from 1997 to 2001, and reelection to the Civil Court in 2006. (5) His Supreme Court career began in 2004, when Chief Judge Jonathan Lippman designated him an Acting Supreme Court Justice, (6) before being elected to the bench in 2007. (7) Governor Andrew M. Cuomo appointed Judge Feinman to the Appellate Division, First Department in 2012, and nominated him to the New York State Court of Appeals on June 19, 2017. (8) His nomination was unanimously confirmed by the State Senate on June 21, 2017, (9) and he was officially sworn in as an Associate Justice of the Court of Appeals on October 18, 2017. (10) Judge Feinman will reach New York's mandatory age of retirement in 2030, allowing him to serve on the bench for approximately thirteen of the fourteen-year term. (11)

   Judge Feinman was appointed after the tragic death of Judge Sheila Abdus-Salaam, another trailblazing New York jurist. (12) As the first African American woman appointed to the Court of Appeals, Judge Abdus-Salaam's appointment made history in New York. (13) Thus, it is only fitting that her untimely death would result in another historic appointment for the State. As the first openly gay judge appointed to the Court of Appeals, Judge Feinman's nomination was cause for celebration. (14) His appointment into Judge Abdus-Salaam's seat on the Court is only more appropriate considering the praise she received for her decision in a groundbreaking New York State case allowing gay, lesbian, and other non-biological parents the opportunity to seek parenting rights equally with biological parents. (15)

   Although only present on the Court of Appeals for a brief time, this paper will seek to review and evaluate Judge Feinman's decisions and votes, drawing conclusions based on his opinions and voting patterns, where appropriate. To do this, I will consider and discuss his decisions on the Court of Appeals thus far, first reviewing dissenting and concurring opinions, followed by the opinions he has authored for the majority, and finally reviewing the decisions in which he voted with the majority on a divided court. Ultimately, the goal of this paper is to learn more about Judge Feinman, by reviewing his opinions and votes thus far while on the Court of Appeals bench.

2. DISAGREEING WITH THE MAJORITY: JUDGE FEINMAN'S DISSENTING AND CONCURRING OPINIONS

   During his relatively short time on the Court of Appeals bench, Judge Feinman has penned one dissenting opinion and has joined one concurring opinion. Judge Feinman joined in Judge Jenny Rivera's concurrence in People v. Helms, (16) agreeing that the Appellate Division, Fourth Department's decision should be reversed, but reaching the conclusion on different grounds. (17) Judge Feinman authored his first dissent about two months after he was sworn in in Nomura Home Equity Loan, Inc. v. Nomura Credit and Capital, Inc., (18) disagreeing with the majority's reading of contractual provisions between the parties. (19) In both instances, Judge Feinman's willingness to step away from the majority's position so early in his career on the Court is notable.

   1. Dissent in Nomura

      Nomura dealt with four residential mortgage-based securities transactions, in which the appellant, Nomura Credit & Capital ("Nomura") sold pools of mortgage loans to a depositor, which in turn put the loans into a separate trust with respondents, HSBC Bank USA ("HSBC"). (20) When many of the loans failed to conform to the representations and warranties contractually guaranteed and Nomura failed to cure the defect, HSBC filed an action on behalf of each trust. (21) On appeal, the Court debated the appropriateness of the defendant's motion to dismiss for failure to state a cause of action, in light of contractual provisions providing the sole remedies for breaches of representations and warranties. (22)

      The Hon. Leslie E. Stein's majority opinion (23) dismissed the plaintiffs' claims seeking general contract damages. (24) Focusing on a "Sole Remedy Clause" in the contract, the Court held that the clause was directly related to a "No Untrue Statements" provision in the writing, and thus, any claims based on alleged misrepresentations were subject solely to the proscribed remedy. (25) The majority concluded that permitting the plaintiffs to recover general contract damages would effectively render the Sole Remedy Clause meaningless, and interpreting this clause to be the only remedy agreed on by the parties, the Court barred the plaintiffs from seeking general contract damages. (26)

      Only approximately two months after his confirmation, Judge Feinman authored his first dissent. Agreeing with the majority that the plaintiffs' misrepresentation claims falling directly within the scope of the Sole Remedy Clause should not be subject to general contract damages, Judge Feinman disagreed with the majority of the Court on the allegations falling outside of the scope of the provision. (27) Concluding that the Sole Remedy Clause applied only to the enumerated representations within the section of the contract, Judge Feinman dissented, arguing that not all of the plaintiffs' allegations fell within these enumerated representations, and general contract damages should be available for those outside of the scope of that contractual section. (28) As not all of the contract breaches were duplicative of the other, Judge Feinman concluded that the plaintiffs' claims were properly plead, and should have survived the motion to dismiss. (29)

      In a separate dissenting opinion, Judge Jenny Rivera concurred in part with Judge Feinman's analysis and conclusions, with both judges urging the Court to adopt a more liberal interpretation of the contract clauses, as a breach of one section of the contract, although based on misrepresentations and breaches of warranties, did not necessarily result in a breach of another section. (30) Both judges concluded that the allegations should not be subject to the Sole Remedy Clause, allowing the plaintiffs to seek general contract damages, and thus, should have survived the defendant's motion to dismiss. (31)

   2. Joining Judge Rivera's Concurring Opinion in Helms

      People v. Helms considered the appropriateness of a criminal sentence, specifically whether second felony offender punishment was warranted. (32) After being subject to a traffic stop, the defendant was found to have a loaded firearm, and was charged with criminal possession of a weapon in the second degree. (33) The charges were resolved when the defendant pleaded guilty to attempted criminal possession of a weapon in the second degree, a violent felony. (34) Since the defendant had been previously convicted of burglary in Georgia, the Court was forced to determine whether the subsequent conviction should result in a second felony offender punishment. (35)

      Judge Eugene M. Fahey's majority opinion (36) concluded that the defendant was properly sentenced as a second violent felony...