Private Judges

Meyer, Suozzi’s Group of Private Judges

In New York, we are very fortunate to have experienced, dedicated judges who work hard to provide a sophisticated forum for resolving commercial and other disputes. The court system, however, does not always provide the most cost-effective and efficient means of resolving disputes. Meyer Suozzi understands the importance of trying to find ways to resolve legal disputes in the most cost-efficient and expeditious manner. The New York judicial system provides a legal method for parties who have legal disputes to hire a “private judge” to resolve their dispute while affording all the remedies and protections that the formal court system offers. While it may not be appropriate for all circumstances, it is an option to consider. Meyer, Suozzi has a team of experienced attorneys who are available to assume this important role of private judge.

Benefits and Advantages of a Private Judge

There are a number of benefits to hiring a private judge who is dedicated exclusively to the case at hand:

1. Flexibility and Certainty. While the authority to appoint a private judge to determine issues in dispute derives from the New York Civil Practice Law and Rules (CPLR) (see below), the private judge is free to conduct the affairs and proceedings at times, places and in a manner at his or her discretion. The parties chart their own course by stipulating to the private judge and coordinating their respective schedules and procedural preferences with just one person, rather than the entire administration of the court system. Further, dates of all proceedings can be coordinated based upon the respective schedules of the parties and only one other person – the private judge. Imagine dates certain for hearings, trials and/or written submissions, which afford for advance planning.
2. Expertise. The parties jointly select the best person for the job. They can identify and choose someone with precisely the experience, knowledge and temperament that fits the case needs.
3. Avoid Cost and Bureaucracy of ADR Forums. Hiring a private judge can afford advantages over resolving a dispute in arbitration or administered through the large well-known dispute resolution organizations. For one, hiring a private judge can avoid the administrative bureaucracy and cost associated with the large ADR forums and venues. In short, the private judge is at the “beck and call” of the parties themselves.
4. An Enforceable Judgment. Unlike arbitration awards, as noted above, the decision of a private judge can immediately be reduced to an enforceable judgment. There is no extra step to institute an entirely new proceeding under CPLR 7511 to confirm the private judge’s decision like there is after an arbitration award is issued. Thus, the additional time, expense and litigation is eliminated.
5. Full Appeal Rights Preserved. Unlike in arbitration, the decision and judgment of the private judge are fully reviewable on appeal through the New York Court system based upon all the grounds available to challenge any decision of a court. A referee appointed to hear and determine has the same power and authority as a justice of the court, and his or her decision stands as the decision of the court. The private judge’s decision can be reviewed and set aside only for the same reason and in the same manner as can a decision of the court. Therefore, the reluctance that attorneys and their clients may have to the relatively unchecked power of an arbitrator to definitively determine their dispute is ameliorated by the appellate review process.

Legal Authority to Hire a Private Judge

The authority for such an appointment is contained in CPLR 4001: “A court may appoint a referee to determine an issue, perform an act, or inquire and report in any case where this power was heretofore exercised and as may be hereafter authorized by law.” The section governing the power and authority of the private judges who “determine an issue” is CPLR Article 43.

The parties to a case (once it is filed) can immediately stipulate to the appointment of the private judge. CPLR 4317(a) provides: “The parties may stipulate that any issue shall be determined by a referee.” Only in three limited circumstances must leave of court by sought first: “Leave of court and designation by it of the referee is required for references in matrimonial actions;  actions against a corporation to obtain a dissolution, to appoint a receiver of its property, or to distribute its property, unless such action is brought by the attorney-general;  or actions where a defendant is an infant.” Id. Once the parties so stipulate and name their private judge, the clerk must issue an order effectuating the stipulation: “Upon the filing of the stipulation with the clerk, the clerk shall forthwith enter an order referring the issue for trial to the referee named therein.” Id.

CPLR 4301 affords the private judge broad powers, equivalent to an elected Supreme Court Justice: “A referee to determine an issue or to perform an act shall have all the powers of a court in performing a like function;  but he shall have no power to relieve himself of his duties, to appoint a successor or to adjudge any person except a witness before him guilty of contempt.”

The private judge has the power not only to issue a decision, but also a fully effective and enforceable judgment. See CPLR 5016(c)(“Judgment upon the decision of a court or a referee to determine shall be entered by the clerk as directed therein.  When relief other than for money or costs only is granted, the court or referee shall, on motion, determine the form of the judgment.”)

Unlike in arbitration, the decision and judgment of the private judge are fully reviewable on appeal through the New York Court system based upon all the grounds available to challenge any decision of a court. See Bedford v. Hol-Tan Co., 140 App.Div. 282, 285–286, 125 N.Y.S. 173, 175–176 (1st Dep’t 1910)(“A referee appointed to hear and determine has the same power and authority as a justice of the court, and his decision stands as the decision of the court. [CPLR 4319.] His decision can be reviewed and set aside only for the same reason and in the same manner as can a decision of the court.”); Hampton Bays Supply Co. v. Adler, 3 Misc.2d 224, 226, 147 N.Y.S.2d 775, 778 (N.Y. Sup. 1955).

Meet our Private Judges

Kevin Schlosser (Chair)
Kevin Schlosser’s Perspective On Being A Private Judge

What do you want in the person who will be deciding your important legal dispute? Someone who is:

Knowledgeable and Experienced
You want someone who is familiar with the subject matter of the dispute and who can absorb and appreciate the issues and arguments presented. I have over 37 years of experience in practicing law. When I handle a case in any given area of law, I become an “expert” in not only the substantive applicable law, but the underlying subject matter of the litigation. That means that while I have handled a very broad array of matters, I have not just “tinkered” in the subject — I have immersed myself in it. I have also served as a court-appointed referee and mediator in the Commercial Division. Here are the types of matters I have handled:
All manner of commercial litigation and disputes, corporate and partnership disputes, business torts, fraud, breach of fiduciary duty, breach of contract, business valuations, employment and restrictive covenants, trade secrets, intellectual property, trademarks, copyrights, unfair competition, false and misleading advertising, professional liability and malpractice claims, construction law and mechanics liens, real estate, commercial landlord-tenant disputes, ERISA, health law, insurance coverage, claims and defense, including disability insurance claims, and the prosecution and defense of other tort-related claims.

Hands On
While many judges are experienced and knowledgeable (and in the court system of course you do not choose which one you get), the court system is not designed to enable the judge to pay sufficient attention to each case given the size of any typical caseload. Law clerks, law “secretaries” and other assistants are placed with a great deal of the responsibility for the decision-making process. In a matter in which I am the “judge,” I am the one reviewing and evaluating the papers, the arguments, the witnesses and everything else relevant. I am the one deciding the outcome — applying over 37 years of personal experience and knowledge directly to the matter.

Responsive and Dedicated
When legal disputes arise, they are often the most important, critical and pressing issues confronting the parties. That is the way they should be addressed by the private judge. Issues should be handled in a timely and responsive manner. I have always understood the importance of timely attention to matters, regardless of how many demands are on the plate. The beauty of the private judge is that there is no bureaucracy in the way. We are able to be attentive and responsive to those who have engaged our services.

Fair and Objective
Legitimate disputes should be resolved in an entirely fair and objective manner based upon the merits, equity and what is just and right. Every party deserves to get a fair shake in presenting its position and an opportunity to be heard and carefully understood. Reasonable minds could differ on any given issue, but the process must be fair and even-handed for all.

Kevin Schlosser Authors, “The Use of Private Judges: New World, New Wave?” for the New York Law Journal.

Kevin Schlosser Authors, “Renewed Allure In Hiring ‘Private Judges’ Under the CPLR” for The Suffolk Lawyer.

A. Thomas Levin
Mr. Levin is Chair of the firm’s Local Government Law and Land Use, and the Professional Responsibility Practice Groups. In addition to being a shareholder at the firm, he also serves as General Counsel to the firm. Mr. Levin has more than fifty years of experience in resolving issues and controversies concerning local government operations and regulations, land use and zoning disputes, and legal ethics. Mr. Levin’s professional background includes his tenure as a Senior Deputy Nassau County Attorney, a Law Secretary to a Nassau County Supreme Court Justice, Counsel to the New York State Assembly Judiciary Committee, Counsel to the Nassau County Planning Commission, and counsel to numerous local government entities in Nassau and Suffolk counties. His professional experience includes extensive representation of public and private sector clients in areas as diverse as land use regulation, legislation, litigation and appeals, environmental impact review, communications law, constitutional law, and professional ethics. Mr. Levin has also served as President of the New York State Bar Association and the Nassau County Bar Association, and Chair of the New York State Conference of Bar Leaders and the National Caucus of State Bar Associations. A frequent lecturer on a variety of legal subjects, he is a principal author and Senior Editor of the New York Bench Book for Trial Judges, published by Thomson-Reuters.

Andrew J. Turro
Mr. Turro is a shareholder at Meyer Suozzi and a member of the firm’s Litigation & Dispute Resolution Department, its Employment Law Group, and the chair of the Equine Practice Group. Before joining the firm, Mr. Turro clerked for the United States Court of Appeals for the Fourth Circuit and served as an Assistant District Attorney at the Manhattan District Attorney’s office. He has extensive experience in virtually all employment-related claims, including employment contracts, severance agreements, comprehensive restricted covenants as well as employment discrimination actions and wage and hour cases.

As a seasoned litigator who represents large international companies as well as local businesses and individuals, Mr. Turro provides an experienced, thoughtful, and pragmatic approach to legal disputes arising in the employment law context. He has also authored numerous articles covering topics including on the scope of various legal privileges recognized by the courts, and addressing various employment-related legal issues

Mr. Turro also acts as general outside corporate counsel, advising corporate clients on a broad range of legal matters including employment issues, business strategy matters, and compliance with state, local and federal rules and regulations.

Paul F. Millus
Mr. Millus is a Member of the firm’s Litigation and Dispute Resolution Department and Employment Law Group. Mr. Millus’s litigation practice primarily focuses on complex commercial, civil, employment-related matters and constitutional issues. He has extensive jury and bench trial experience in the state and federal courts in New York taking dozens of matters to verdict in both commercial and employment cases. He has over 100 reported decisions on Westlaw and also appears regularly for proceedings and hearings before arbitral forums such as AAA and JAMS.

Mr. Millus has been recognized by the Bar for his professionalism and expertise serving as Chairs of both the Federal Courts Committee and the Labor & Employment Committees of the Nassau County Bar Association. He is a past President of the Theodore Roosevelt American Inn of Court, a member of the Touro Law Center Board of Governors and has opined on a variety of legal issues in both print and on televised media.

Mr. Millus prides himself on his ability to analyze complex cases, spot the relevant issues and resolve those issues in a fair manner that is always consistent with the law. His ability to deconstruct these complex matters into their core issues when advocating on behalf of his clients has enabled him to reach accords or summary determination in numerous cases that would otherwise be the subject of further extensive and expensive litigation. Having served as a Special Assistant United States Attorney and having practiced under the tutelage of a former Federal District Court Judge in the Southern District, Mr. Millus has been exposed to a wide range of legal issues under both state and federal law which makes him well suited to adjudicate in a whole host of disputes.

Michael J. Antongiovanni
Mr. Antongiovanni is a seasoned commercial litigator and in charge of the firm’s real estate litigation. He has also been appointed as a Receiver and Referee in matters pending in the New York State Commercial Division and is a member of the Board of Directors of the Nassau County Bar Association. Mr. Antongiovanni’s practice is diverse, encompassing a variety of commercial and real estate disputes, including breach of contract claims, lease disputes, shareholder and partnership disputes, unfair competition, fraud, construction disputes and business torts. Having represented clients through all phases of trial and dispute resolution, Mr. Antongiovanni is cognizant of the issues facing litigators and their clients during trial, and takes a practical and fair approach in handling the issues at hand.

The following are some representative matters that Mr. Antongiovanni has handled:

• Successfully defended and resolved $26 million claim against corporate client stemming from an acquisition of a business and alleged breach of an asset purchase agreement
• Successfully represented client in obtaining judgment declaring the validity of a contested lease and easement agreement
• Successfully represented a pair of private lenders through litigation and appeal in establishing the validity of $4 million in mortgage loans to a limited liability company in the face of claims and defenses of alleged lack of authority and fraud
• Successfully represented client in obtaining judgment declaring her sale of stock in a limited liability company was valid and dismissing plaintiff’s claim seeking to rescind the sale and for several millions of dollars in damages based on the theory that the sale circumvented his right of first refusal to real estate owned by the limited liability company
• Obtained favorable resolution for a limited liability company involving multi-state litigations against former officer who usurped several millions of dollars in corporate business opportunities and assets
• Obtained favorable resolution for corporate shareholder-client in claims against his fellow shareholder for diverting and converting over millions in shareholder equity and company revenue
• Successfully defended a corporate client, through litigation and appeal, against a national real estate developer’s breach of real estate sales contract claim and assisted client in retaining million dollar contract deposit as liquidated damages
• Obtained favorable resolution for two companies in a multi-state litigation against a minority owner and employee, who was secretly competing against the companies in violation of his fiduciary duties and non-competition agreement
• Successfully obtained summary judgment for client declaring that an enforceable equitable mortgage existed notwithstanding that only two of the four owners of a commercial property execute the note and mortgage
• Obtained favorable resolution of claims by employer-client against former employees and competitor concerning employees’ breach of their employment agreements, including covenants not to compete, and unfair competition
• Obtained favorable resolution for roofing contractor facing claims pertaining to work performed on major roofing project