A Commercial Division Veteran Adjusts to Appellate Life

, Commercial Litigation Insider

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Justice Kapnick
Justice Kapnick

Justice Barbara Kapnick said she's found the change of pace between her former role as a Commercial Division judge and her new position on the appellate bench a "big change," especially when it comes to the level of interaction with lawyers.

"Nobody calls," she said. "There is no direct contact between the lawyers and the court on these appeals. It's different because we were used to such a busy part. It's a big change for someone who came from the Manhattan trial part."

The most recent appointee to the Appellate Division, First Department, whose tenure in New York County's Commercial Division coincided with a wave of financial crisis-era litigation, discussed her transition from one bench to the other in a recent interview with Commercial Litigation Insider.

Kapnick, 60, was elevated to the appellate court by Gov. Andrew Cuomo on Jan. 17 and took the bench in early February. She started out on the civil court bench before becoming an acting Supreme Court justice in 1994. After being elected in 2001, she sat in the general IAS part before joining the Commercial Division in 2008, right after Lehman Brothers filed for bankruptcy.

As a Commercial Division judge, Kapnick issued decisions in some high-profile cases, including the fraud case Harbinger Capital Partners v. Wachovia Capital Markets, 2010 NY Slip Op 51046 [27 Misc 3d 1236(A)], the restructuring of bond insurer MBIA and, on her last day as a trial judge, a decision approving a $8.5 billion settlement between Bank of America and investors in mortgage-backed securities that she called "the mother of all MBS suits," In the matter of the application of The Bank of New York Mellon, 651786/2011.

In her brief time with the Appellate Division, Kapnick already has put her stamp on some notable rulings.

Last month, she joined a five-judge panel which unanimously remanded a case to Commercial Division Justice Charles Ramos on the matter of attorney fees. The panel issued a significant clarification on a New York Civil Practice & Rules section involving offers to liquidate judgment in breach of contract suits ("Panel Holds Attorney Fees Recoverable Under Settlement Device," April 24, CLI).

While Kapnick's case load is now more varied, Commercial Division cases are still part of the mix. In fact, 10 percent of all appeals in the First Department are commercial cases. A task force report on commercial litigation in the 21st century issued by the chief judge in 2012 suggested ways to ease the burden of interlocutory appeals from the lower court.

The general consensus, however, is that the routine of an appellate judge is a far cry from the hustle of life in the Commercial Division. As Kapnick's new colleague Justice David Saxe noted in a recent essay for The New York Law Journal, "there are no surprise TRO applications, no last-minute hearings, no TAP referral of cases ready to start trial the moment your current trial is over … seldom is anything handled quickly."

One of eight female judges on the First Department out of a total 17 judges, Kapnick was already acquainted with many of her fellow judges, including two who previously sat in the Commercial Division, Helen Freedman and Karla Moskowitz.

"We certainly bring a perspective that other judges might not have but which they acquire in good time," said Freedman, whose Commercial Division docket Kapnick inherited in 2008. "There's some similarity in that there's a great deal of reading in the Commercial Division and Appellate Division so we're used to the volume of reading than perhaps some of the judges in the criminal division."

Freedman acknowledged that life in the appellate part, after the pace of trial court, could feel "cloistered."

"It would be a change. You are used to dealing with lawyers all the time and now you're dealing mostly with records," Freedman said in an interview. "It takes a couple of years."

That contrast may be especially pronounced for Kapnick given her six years in the Commercial Division, which she says stood out for its workload demands and need for quick turnaround.

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Originally appeared in print as A Commercial Division Veteran Adjusts to Appellate Court Life

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