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The New York Court of Appeals opens its April-May session today in Albany with a case that has attracted national attention and a plethora of amicus curiae. At issue in Levin v. Yeshiva, 76, is whether a school that offers housing for married students can deny that benefit to gay couples. But Sara Levin’s crusade to overturn an Appellate Division, 1st Department, ruling that said the Albert Einstein College of Medicine can deny gay couples housing in university apartments provided for married students is only one of a series of high-profile appeals the judges in Albany, N.Y., will entertain over the next two weeks. Other blockbusters include disbarred attorney John Kennedy O’Hara’s effort to overturn his peculiar felony conviction for improperly voting, the New York State Association of Criminal Defense Lawyers’ challenge to the court’s decision to slash counsel fees in death penalty cases, and New York Assembly Speaker Sheldon Silver’s effort to have the judiciary decide whether he can sue New York Gov. George Pataki over budget cuts. Also on the busy calendar is yet another examination of plea bargaining in capital murder prosecutions and a quirky medical malpractice case raising a question of whether cosmetic surgeons must take into account a patient’s psychiatric state in obtaining consent for elective surgery. All of the cases heard this session are likely to be decided within six weeks. Levin v. Yeshiva, the first item on the agenda, is of critical importance to the gay community and is viewed nationally as one of the first test cases on a university’s policy of banning same-sex habitation in housing reserved for married couples. It began in 1996 when Levin, then a third-year medical student, and Carla Richmond, a first-year student, sought housing for themselves and their partners in Yeshiva University’s apartments. Yeshiva provides married medical students with housing in cut-rate apartments, but denies that benefit to unmarried students. The Albert Einstein Medical School, which is part of Yeshiva University, rejected both couples’ applications because they did not have a marriage certificate, which is not available to gay and lesbian couples. The students, who had registered with the New York City Clerk as domestic partners, brought an action based on state and city anti-discrimination laws. Their claim was rejected by Justice Franklin R. Weissberg (180 Misc2d 829) and a unanimous panel of the Appellate Division, 1st Department (272 AD2d 158). On appeal, the plaintiffs argue that Yeshiva’s policy violates the ban on marital status discrimination under the New York State Human Rights Law (New York Executive Law �296) and New York City Human Rights Law (New York City Administrative Code �8-107) by offering one kind of housing to students who are legally single and another to those who are legally married. They also allege disparate impact under the Administrative Code because homosexuals cannot obtain the required marriage certificate, while heterosexuals can. ‘HUDSON VIEW’ In affirming Justice Weissberg, the 1st Department said there was no disparate impact because the policy applies equally to all unmarried students, regardless of sexual orientation. It relied largely on a 1983 decision, Hudson View Properties v. Weiss, 59 NY2d 733, where the Court of Appeals found that the eviction of a woman who was living with her boyfriend in violation of a lease provision restricting occupancy to “immediate family members” did not violate the State Human Rights Law. Although the Legislature responded to the Hudson View ruling by shielding roommates under the state’s rent protection statute, the 1st Department found that Real Property Law �235-f(2) applies only to a primary residence — and not the temporary home of a student. James D. Esseks, counsel for the plaintiffs, argues in his brief that while the policy may technically be facially neutral, its impact “falls more heavily on lesbian and gay medical students because they cannot marry their partners and therefore cannot meet the policy’s explicit requirement of a marriage certificate for partner housing.” Esseks is with the Manhattan’s Vladeck, Waldman, Elias & Engelhard. The university, represented by Mark A. Jacoby of Weil Gotshal & Manges in Manhattan, relies primarily on the Hudson View ruling and the court’s holding in 1980 in Manhattan Pizza Hut Inc. v. New York State Human Rights Appeal Board, 51 NY2d 506. In the Pizza Hut case, the court found a Human Rights Law prohibition on discrimination based on marital status is not violated by an employer’s anti-nepotism policy. Five amicus curiae briefs were filed in support of Levin, including one by Attorney General Eliot Spitzer. On Friday, Spitzer said he is concerned that if the 1st Department decision stands it will severely weaken the disparate impact doctrine and undermine civil rights protections. Spitzer’s brief argues that facial neutrality and disparate impact are not mutually exclusive concepts, as the 1st Department’s holding seems to suggest. CRIMINAL VOTING Also today, the court will hear the bizarre story of O’Hara, who claims to be the first New Yorker since women’s suffrage pioneer Susan B. Anthony to be convicted for illegal voting. He is appealing the conviction for illegal voting and false voter registration, which cost him his law license. O’Hara, a perennial candidate for elective office and thorn in the side of the Brooklyn Democratic organization, lived in an apartment on 61st Street in Bay Ridge for 12 years before reapportionment shifted his home to another election district in 1992. At that time, he filed a new voter registration card claiming as his residence an ex-girlfriend’s apartment on 47th Street. O’Hara voted from that address in 1992 and 1993. Brooklyn District Attorney Charles Hynes brought O’Hara to trial three times on the legal theory that O’Hara was not a resident of his ex-girlfriend’s home, from which he voted in 1992 and 1993, within the meaning of Election Law. The first trial resulted in a conviction that was overturned. A second ended in a mistrial with a hung jury. The third resulted in O’Hara’s conviction on seven counts. With a felony conviction, O’Hara was automatically disbarred. He also lost his right to vote, was ordered to pay $20,192 in fines and restitution and to perform 1,500 hours of community service. The conviction was upheld by the Appellate Division, 2nd Department. O’Hara claims that he maintained two residences and was free, under the Court of Appeals’ 1983 decision in Ferguson v. McNab, 60 NY2d 598, to choose either as his voting address. The prosecution is urging the Court to narrowly construe its holding in Ferguson, where it said a “candidate having two residences may choose one to which she has legitimate, significant and continuing attachments.” Prosecutors contend O’Hara never actually resided at the 47th Street address. Steve S. Efron of Manhattan will argue for O’Hara. Assistant Brooklyn District Attorney Monique Ferrell will appear for the prosecution. CAPITAL DEFENSE FEES On Wednesday, the Court of Appeals judges will be placed in the intriguing position of hearing a case in which they are the defendants, New York State Association of Criminal Defense Lawyers v. Kaye, 82. The appeal seeks to challenge an administrative order in which the court in 1998 slashed the capital defense rates it had established two years earlier. At issue is whether the defense bar has standing — the Appellate Division, 3rd Department, found that it did not. And if it does have standing, the issue is whether the court had the authority to cut the rates, as well as whether the new fee structure is reasonable. Judiciary Law �35-b, which was enacted when the Legislature reinstated the death penalty in 1995, provides a framework for the defense of indigent capital defendants. Under the statute, a four-member screening panel in each department is charged with devising a fee schedule, which is then reviewed by the Court of Appeals. In November 1996, the Court of Appeals approved the hourly fee schedule submitted by each of the departments: $175 for lead counsel, $150 for associate counsel, $40 for legal assistants, and $25 for paralegals. After Gov. Pataki complained that those rates were too high, the court ordered the screening panels to reconsider. Screening panels in the 2nd, 3rd and 4th Departments recommended cutting rates to $100 for lead counsel for work conducted prior to the filing of a death notice, and $125 for post-notice representation. They also recommended cutting the associate rate to $75 pre-notice and $100 post-notice. Although the 1st Department screening panel deadlocked, the Court of Appeals adopted the new rates, applicable statewide. Defense attorneys sued, arguing that the court lacked authority to revise fees in the 1st Department, and that the new rates were too low to ensure an adequate stable of qualified capital defenders. Acting New York Supreme Court Justice Dan Lamont of Cobleskill, N.Y., conferred standing, but held that the Court of Appeals had the power to impose a new rate schedule in the 1st Department. Justice Lamont also found the new rates reasonable. The Third Department, however, said the defense bar did not have standing, since its claims of economic loss were not actionable under �35-b. Jay Cohen, of Paul, Weiss, Rifkin, Wharton & Garrison, which represents the association, insists that defense lawyers are “essential participants,”and thus have standing. Assistant New York Solicitor General Alicia R. Ouellette denies that the defense bar has standing, claims the Court has the “ultimate power” to set rates, and that those raise are reasonable. “There is no evidence in the voluminous statutory history that the Legislature had any concern with the economic interests of lawyers when it passed Section 35-b,” Ouellette said in her brief. Ouellette argues that the 1996 rates were too high, as evidenced by the fact that defense lawyers had billed well over $500,000 in cases that did not even go to trial, and out of line with other states and the federal government. Chief Judge Judith S. Kaye has recused herself, but four other current members of the court who approved the fees will be on the bench. The court rejected a motion for disqualification, citing the Rule of Necessity. LINE-ITEM VETOS Silver v. Pataki, 94, thrusts the court into a political dispute between the two other branches of government. New York Assembly Speaker Silver, a Manhattan Democrat, is asking the court to reinstate his suit over Pataki’s use of line-item vetoes to delete not only $1.24 billion but also language that was included in bills added to the 1998-99 state budget. The appeal comes from a 3-2 1st Department ruling last summer where the justices found that the brouhaha was essentially political in nature and that the Speaker lacks capacity to sue. Steven Alan Reiss, of Weil, Gotshal & Manges, will argue for the Speaker on May 3. Max R. Shulman of Cravath, Swaine & Moore is representing the governor. DEATH PENALTY AND PLEAS The death penalty case, People v. Daniel Edwards, 92, calls upon the court to once again consider the circumstances under which a capital defendant can enter a guilty plea. Since the court struck down the plea bargaining provisions in the death penalty statute on federal constitutional grounds ( Hynes v. Tomei, 92 NY2d 613, 1998), judges have repeatedly tangled with the question of just when a plea can be entered. In this case, after the prosecution issued notice of intent to seek the death penalty, defendant Daniel Edwards agreed to plead guilty to first-degree murder in exchange for a sentence of 25 years to life. After the Court of Appeals decided Hynes, the defendant attempted to withdraw his plea. The Appellate Division, 3rd Department, vacated the plea, finding it “constitutionally impermissible for prosecutors to negotiate guilty pleas to murder in the first-degree while a notice of intent to seek the death penalty is pending.” Ironically, by winning his appeal, Edwards placed himself in jeopardy of execution. Edwards claims on appeal that once the death notice was withdrawn, it could not be refiled under any circumstances. He is represented by Joseph F. Cawley Jr., of Mlynarski & Cawley in Binghamton, N.Y. Assistant Solicitor General Robin A. Forshaw will argue for the State. The case will be heard May 2. COSMETIC SURGERY CASE On May 3, the court will review a 3-2 1st Department decision that said Dr. Norman Hugo could be held liable for failing to take into consideration the mental state of a patient on whom he performed an array of cosmetic procedures. Hugo is chief of plastic surgery at Columbia-Presbyterian Hospital in Manhattan. Lynn G. v. Hugo, 93, stems from a medical malpractice action alleging that the patient was left with unsightly scars from liposuction and abdominoplasty procedures performed by Hugo. The plaintiff alleged that she was incapable of giving informed consent because she has a body dysmorphic disorder (BDD), or obsession with minor or even imaginary cosmetic flaws. Hugo moved to have the suit dismissed, noting that he had obtained a detailed consent before each procedure. The 1st Department denied his motion, leading to this appeal in Albany. Frederick N. Gaffney, of Costello, Shea & Gaffney in Manhattan, is scheduled to argue for Hugo. Morton Povman of Forest Hills, Queens, N.Y., will argue for Lynn G.

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