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Commercial Litigation Update: First Department Drops Down to Four-Justice Panels for Arguments

Beginning in April 2019, the First Department has changed its practice to assign panels of four justices for oral argument, as opposed to five justices as has been the traditional practice of the court.[1]  This change is the result of three ongoing vacancies on the First Department that have remained unfilled by Governor Cuomo.[2]  The Presiding Justice of the First Department, Hon. Rolando Acosta, explained that the move to four justice panels is necessary because there are not enough judges to hear all the pending appeals.[3]  Aware that four justice panels could create a two-to-two split, Presiding Justice Acosta explained that a fifth judge can be brought in to issue a decision if needed.  Parties can preserve their right to reargue or submit the case to a fifth justice by making a statement on the oral argument record.[4]  This change will likely remain in place until new judges are appointed to the court. 

By Danielle C. Quinn and Muhammad U. Faridi

[1] Susan DeSantis, First Department Introduces Four-Judge Panels, Upsetting NY Bar Associations, N.Y.L.J. (Mar. 5, 2019)

[2] Id.

[3] Id.

[4] Id.