Walter Tolub

New York Supreme Court 3 60 Centre Street 60 Center Street Above the Law.jpgThat’s essentially the question raised about Justice Walter Tolub, of New York Supreme Court, in a recent item by Judicial Reports:

Justice Walter Tolub is by most accounts a smart and fair jurist….

Why then when it comes to straightforward contracts and lease provisions, does Manhattan Supreme Court Justice Walter Tolub seem to hit a snag? He has been reversed 10 times in the last six months on cases that seem simple enough for a law student to find an answer that would stand up on appeal. Time and again, on a streak from September through February, the Appellate Division has said the 66-year-old jurist misinterpreted what appear to be largely uncomplicated agreements.

We’ve appeared before Justice Tolub, and he struck us as a well-prepared judge — “smart and fair,” as noted above. So we found this information surprising:

To be sure, Tolub does not have a particularly blemished record — just an apparently niggling problem. Of his 183 cases that were appealed between 2000 and 2005, he was reversed 36.6 percent of the time. During the same period, the average reversal rate for Civil Term judges in the First Department was 37.1 percent. However, only six of the over 80 judges in the Civil Term of the First Department were appealed more often than Tolub.

Justice Tolub has a reversal rate of almost 37 percent — which makes him one of the less reversed judges on that court? We’re not in federal court any more, Toto!
Back to the article:

The New Year [2007] didn’t break the spate of problematic decisions on contracts and leases. The reversal streak continued and the Appellate Division continued to overturn Tolub’s rulings, using refrains emphasizing that the original contracts in question had “plain and ordinary meaning” and “clear language.”…

The Appellate Division noted [in reversing one Tolub decision] that the court is “not free to ‘make or vary the contract of insurance to accomplish its notions of abstract justice or moral obligation.’ ”

OUCH. Please file under the “Oh No They Didn’t!!!” West headnote.
Contractual Obfuscation [Judicial Reports]