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Ponterio v. Kaye

September 5, 2007

FRANK V. PONTERIO, PLAINTIFF,
v.
JUDITH S. KAYE, CHIEF JUDGE OF THE STATE OF NEW YORK, JONATHAN LIPPMAN, CHIEF ADMINISTRATIVE JUDGE OF THE COURTS, JOHN T. BUCKLEY, PRESIDING JUSTICE OF THE APPELLATE DIVISION, FIRST DEPARTMENT, A. GAIL PRUDENTI, PRESIDING JUSTICE, APPELLATE DIVISION, SECOND DEPARTMENT, ANTHONY V. CARDONA, PRESIDING JUSTICE, APPELLATE DIVISION, THIRD DEPARTMENT, EUGENE F. PIGOTT, JR., PRESIDING JUSTICE, APPELLATE DIVISION, FOURTH DEPARTMENT, AND THE ADMINISTRATIVE BOARD OF THE COURTS, DEFENDANTS.



The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge

OPINION AND ORDER

Plaintiff Frank V. Ponterio ("Plaintiff" or "Ponterio"), a retired New York State Supreme Court Justice, brought this action pursuant to 42 U.S.C. § 1983. Ponterio's remaining claim is that Defendants Judith S. Kaye, Chief Judge of the State Of New York, Jonathan Lippman, Chief Administrative Judge of the Courts, John T. Buckley, Presiding Justice of the Appellate Division, First Department, A. Gail Prudenti, Presiding Justice, Appellate Division, Second Department, Anthony V. Cardona, Presiding Justice, Appellate Division, Third Department, Eugene F. Pigott, Jr., Presiding Justice, Appellate Division, Fourth Department, and the Administrative Board of the Courts (collectively, "Defendants") violated his rights to equal protection of the laws under the Fourteenth Amendment of the United States Constitution when the Administrative Board of the Courts, in 2004, declined to reconsider its 2003 denial of Ponterio's application for recertification as a Supreme Court Justice.

Defendants move for summary judgment on Ponterio's Equal Protection claim. For the reasons articulated below, Defendants' motion is GRANTED, and Ponterio's equal protection claim is accordingly dismissed.

I. BACKGROUND

A. Certification and Recertification of New York Supreme Court Justices

By way of background, pursuant to Article VI, Section 25(b) of the New York Constitution, Justices of the Supreme Court are required to retire on the last day of December in the year in which they reach the age of seventy. See N.Y. CONST., Art. VI, § 25(b).*fn1 They may, however, be certified by the Administrative Board of the Courts*fn2 to serve as retired Justices for a two-year term, and may be recertified for two additional two-year terms, for a total of six years, until they reach the age of 76.*fn3 Id.; see also N.Y. JUDICIARY LAW § 115. To certify a Justice, the Board must find as a threshold matter that a Justice possesses the requisite "mental and physical capacity," and that his services are "necessary." N.Y. JUDICIARY LAW § 115(1). Once that finding is made, however, the Board's decision as to certification is discretionary.*fn4

The certification process for retired Justices begins in February or March of the year before their term of certification, when the Chief Administrative Judge sends eligible sitting Justices or sitting retired Justices a letter advising them of their eligibility for recertification and an application form.*fn5 See Affidavit of Michael Colodner, May 18, 2007 ("Colodner Aff.") ¶¶ 9-10. Only sitting Justices are sent letters. Id. at ¶ 10. The Chief Administrative Judge also sends letters to the bar associations within the judicial District where the Justices reside to solicit their views. Colodner Aff. ¶ 12. Additionally, District Administrative Judges are requested to provide a report evaluating the judicial performance of the Justices in that District eligible for recertification. Id.

Thereafter, the Administrative Board meets to consider applications for certification, with the aforementioned information at its disposal. Colodner Aff. ¶ 13. Upon the Administrative Board's exercise of its discretion in selecting Justices, the Administrative Board notifies Justices of its decision. Id. at ¶ 14. Justices who are certified begin their term on January 1 of the following year. Id.

B. Ponterio's Judicial Service

On November 6, 1996, Plaintiff Ponterio was elected to a 14-year term as a Justice of the Supreme Court in the Second Judicial District of New York, effective January 1, 1997. Plaintiff's Complaint, Aug. 18, 2006 ("Pl. Compl.") ¶ 4;*fn6 see also Colodner Aff. ¶ 15. Ponterio was assigned to a matrimonial part (Part 7) of Supreme Court in Richmond County. Pl. Compl. ¶ 9; see also Ponterio v. Kaye, 25 A.D.3d 865, 866 (N.Y. App. Div. 2006). Subsequently, a second matrimonial part was created, both matrimonial parts were consolidated at one facility, and Part 7 became a general civil part. See Ponterio v. Kaye, 25 A.D.3d at 866. In September 1998, Ponterio was removed from the matrimonial part and subsequently heard civil matters, as well as a limited number of matrimonial cases. See id.

Prior to that transfer, Ponterio alleges, inter alia, that in March and April 1998, Justice Betty Ellerin sought to replace him with a female judge in order to influence matrimonial decisions, and that he informed Court of Appeals Judge Vito Titone that he would expose Justice Ellerin's "scheme" to the press. Pl. Compl. ¶¶ 11-12; see generally Ponterio v. Kaye, 2007 U.S. Dist. LEXIS 4105, at *5-8 (S.D.N.Y. 2007) (dismissing Ponterio's First Amendment and "denial of access to the courts" claims).

Ponterio subsequently completed his term of office as a Supreme Court Justice on December 31, 2001 without incident, as he reached the mandatory retirement age of 70 during that year. See Colodner Aff. ¶ 15; N.Y. CONST., Art. VI, § 25(b); N.Y. JUDICIARY LAW § 115. Prior to Ponterio's completion of his term, Chief Administrative Judge Jonathan Lippman wrote Ponterio on February 13, 2001, advised him that he was eligible for certification as a retired Supreme Court Justice for a two-year term beginning January 1, 2002, and enclosed an application for certification. Colodner Aff. ¶ 16. Ponterio submitted the application for certification, which the Administrative Board approved. Id. Ponterio accordingly began his two-year term on January 1, 2002. Id.

C. 2003 Denial of Certification

On February 7, 2003, Lippman again wrote to Ponterio, advised him that he was eligible for recertification as a retired Justice for another two-year term commencing January 1, 2004, and enclosed an application for recertification. Colodner Aff. ΒΆ 17. Ponterio submitted the application for recertification. Id. Lippman solicited the views of various Administrative Judges and bar associations in the normal course. Id. The Richmond County Bar Association recommended against Ponterio's recertification. See Ponterio v. Kaye, 25 A.D.3d at 867. On September 30, 2003, the ...


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