A tribute to Judge Matthew Jasen.

• Author: Rosenblatt, Albert M.
• Position: New York Court of Appeals judge - Testimonial

At the turn of the 20th century, Matthew Jasen's parents arrived on these shores as immigrants who fled Russian-occupied Poland. They could hardly have imagined that their son would leave a significant mark on New York law.

Matthew was born in 1915, and by the end of the 20th century--as Judge Jasen--he had written decisions appearing in forty-six separate volumes of the New York Reports. Those dark green clothbound books cover an important era of New York jurisprudence, from 1968 through 1985, and no one can examine these volumes without appreciating Judge Jasen's role in them.

Never florid or pretentious, Judge Jasen's opinions are marked by directness and common sense. In all, he wrote close to 900 published decisions, 430 for the Court of Appeals majority, 284 dissents, 52 concurrences, and over 100 as an Eighth District Supreme Court Justice. The ratio of dissents to majority opinions is revealing. Many of the dissents were in criminal cases where he would rule with the prosecution, often as the sole, and one might add, courageous voice, for that result.

But it would be a mistake to say that he was blindly prosecutorial--or without compassion. To the contrary, he had World War II experiences that revealed a good deal of human suffering, which must have played a part in shaping his kind and thoughtful outlook.

A number of his writings were prescient. In Tebbutt v. Virostek, (1) he dissented from the majority's holding that a mother may not recover for emotional distress resulting from the stillbirth of a child caused by a physician's malpractice. Critical of the decision, he said that the majority was relegating the unborn child "to a juridical limbo, where the negligent acts, with fatal effects, performed upon the child are neither compensated nor deterred." It took almost twenty years, but in Broadnax v. Gonzalez, (2) the Court of Appeals came to side with Judge Jasen, holding that "Tebbutt has failed to withstand the cold light of logic and experience."

In Heaney v. Purdy, (3) he joined in Judge Breitel's dissent regarding what constitutes a favorable termination of a criminal case for purposes of a malicious prosecution action. Nineteen years later, in Smith-Hunter v. Harvey, (4) the Court of Appeals recognized the virtues of the dissent in Heaney, just as a number of judges have recognized the merit in Judge Jasen's dissent in People v. Register, (5) dealing with depraved indifference murder.

And who can forget Judge Jasen's...