New York Law in Federal Court: A Brief Word on Certification

By Richard C. Wesley

May 8, 2020

New York Law in Federal Court: A Brief Word on Certification


By Richard C. Wesley

This article is part of New York Law: A View From the Bench, a special section in the May issue of the NYSBA Journal edited by Court of Appeals Associate Judge Michael J. Garcia. Read Judge Garcia’s introduction to the section here.

A few years ago, I was pleased to read in a New York Law Journal article that the Second Circuit certifies more questions to state high courts than any other Circuit.1 Frankly, that statistic didn’t surprise me. Having served on both the New York Court of Appeals and the Second Circuit Court of Appeals, I know from experience that these two great courts enjoy an exceptionally cohesive and collegial working relationship.2

This is, of course, not entirely voluntary. Under Erie Railroad Co. v. Tompkins,3 federal courts sitting in diversity must apply state substantive law. The problem prior to the certification process was “state law according to whom” – learned judges at 60 Centre Street in Manhattan Supreme Court or equally learned (and perhaps at times a bit too willing) federal judges (district and circuit) at 40 Centre Street, right next door.

The interests of justice are not well served if New York law does not enjoy consistency in both state and federal courts. Fortunately, through effective (and frequent) use of the certification process over the last 20 years, the Second Circuit and the Court of Appeals have minimized the possibility of competing views on New York law in Erie analyses.4 The availability of certification helps us immensely; it has become a reliable friend in doing our work.

Ironically, the same day I sat down to write this article, the Second Circuit nostra sponte certified to the Court of Appeals a question about general liability insurance coverage.5 In Brooklyn Ctr. for Psychotherapy, Inc. v. Philadelphia Indem. Ins. Co., the question was whether an insurance carrier is responsible for its insured’s defense costs in a lawsuit that alleges that its insured engaged in failure-to-accommodate discrimination.6 The court recognized that each of the factors we normally consider in determining whether certification is appropriate applied, including that resolution of the case required a value judgment and public policy choice that the Court of Appeals should make – specifically, “whether New York public policy bars the defense of a failure-to-accommodate claim.”7

The court noted that the New York courts and even the (then) State Superintendent of Insurance have spoken at length about similar issues, including whether a general carrier is responsible for defense costs in disparate-treatment and disparate-impact discrimination lawsuits. Thus, we sent our cousins on the New York high court a question that was logically related to issues about which the State cares, presumably because the answer impacts the interpretation of an unknown number of New York insurance policies.

But state law questions are not just reserved for diversity cases like Brooklyn Center. There is a wide array of decidedly federal cases that have a state law twist to them8 – questions, in other words, that are uniquely situated for the state to answer but essential to the resolution of a federal lawsuit. Neither a defendant’s valid forum choice nor the presence of a federal question should deprive the plaintiff (or the State) of having these important policy questions answered in the first instance by the more appropriate decision-making body.

Certifying a question does entail some delay in the resolution of the case for the parties, but the New York Court of Appeals has been extraordinarily vigilant in calendaring certified question cases and publishing opinions in a timely fashion. The judges at 40 Centre (and 500 Pearle) will continue to chart the course of New York law in their daily endeavors.9

Certification is an important tool in federal judging and a necessary tool in federalism. It recognizes the distinct role that state courts play in resolving novel and difficult issues of state law that prove determinative in federal litigation. The certification process has had an additional benefit. It has brought the two courts closer together through mutual respect for the work with which each is tasked.10 What was once thought of as revolutionary is now a part of everyday life at 40 Centre and 20 Eagle Street.

Richard C. Wesley is a judge of the United States Court of Appeals for the Second Circuit and a former associate judge of the New York Court of Appeals.

1. Scott A. Chesin, Karen W. Lin, Certification From the Second Circuit to the N.Y. Court of Appeals: A Guide, New York Law Journal (April 10, 2017),

2. I suspect my prior service on the New York high court had something to do with why my dear friend Judge Michael J. Garcia asked me to write this piece. I am the only judge in our Circuit (I’m not sure about the nation) who has both asked and answered a certified question! See, e.g.Carvel Corp. v. Noonan, 350 F.3d 6, 8 (2d Cir. 2003); Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 231 (2001).

3. 304 U.S. 64, 78–79 (1938).

4See, e.g.DeWeerth v. Baldinger, 38 F.3d 1266, 1273–74 (2d Cir. 1994) (“The very nature of diversity jurisdiction leaves open the possibility that a state court will subsequently disagree with a federal court’s interpretation of state law.”). In DeWeerth, the Second Circuit predicted how the Court of Appeals would decide an issue related to the applicable statute of limitations for claims involving stolen artwork. We declined to certify the question, and after we decided the case, the Court of Appeals answered the same question in a different case and determined that we were wrong.

5Brooklyn Ctr. for Psychotherapy, Inc. v. Philadelphia Indem. Ins. Co., No. 19-2266-cv, 2020 WL 1777211, at *5 (2d Cir. April 9, 2020).

6. As the Court explained in Brooklyn Center, discrimination claims based on a failure-to-accommodate theory “involve allegations that a disability makes it difficult for a plaintiff to access benefits to which she is legally entitled.”  2020 WL 1777211, at *3 (internal quotation marks, citations, and alteration omitted).  Discrimination claims based on disparate treatment involve allegations that a defendant “treats some people less favorably than others because of” a protected characteristic, and discrimination claims based on disparate impact involve allegations of facially neutral practices that result in one protected group being treated more harshly than others without justification.  Id.  Disparate treatment claims require a showing of discriminatory intent, and New York law prohibits insurers from covering them; disparate impact claims do not require a showing of discriminatory intent, and at least one New York court has found that state law and policy permits insurers to provide coverage.  Id. at *4.  Because failure-to-accommodate claims also do not require proof of discriminatory intent, Brooklyn Center give the Court of Appeals an opportunity to close the loop here and explain whether these types of claims are more akin to disparate-treatment or disparate-impact claims vis-à-vis the State’s policy on insurance coverage.


8See, e.g.Expressions Hair Design v. Schneiderman, 877 F.3d 99, 107 (2d Cir. 2017); Makinen v. City of New York, 857 F.3d 491, 496 (2d Cir. 2017).

9. This judge in particular looks on that task fondly, as it brings up memories of rewarding conversations held around the consultation table at Court of Appeals Hall in Albany in days gone by.

10. Much of the credit for the close working relationship of the two courts goes to Chief Judge Judith Kaye of the New York Court of Appeals and Judge John Walker during his tenure as Chief at the Circuit.

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