Judging Another Judge: A Case of the Nasties

Civil Court Judge Walter Tolub can be tart and downright biting–in one recent case, interrupting an attorney to ask, “If you stopped talking, do you think you’d die?”

Sometimes, that verve leaks into his printed decisions. And sometimes, well, he just can’t help himself, and the sarcasm wells up and froths all over any old unlucky chap who lands in his courtroom. Even if that chap happens to be a fellow judge. A recent lapse of courthouse cordiality has set other judges sniping–and questioning whether the honorable Judge Tolub has some kind of agenda, perhaps of the political kind, hidden up his judicial sleeve.

The target of Judge Tolub’s recent salvo is Jeffry Gallet, a bankruptcy judge of Federal District Court in Manhattan, who has been party to a messy divorce for more than six years. Most recently, Judge Gallet had filed a complaint against his ex-wife over child support issues. “Put most charitably, the parties have had an acrimonious relationship,” wrote Judge Tolub in his bristling style.

Four other matrimonial judges had taken a pass on the complaint filed by Judge Gallet, who was previously a Family Court judge in Manhattan and the author of a law tome called Spouse and Child Support in New York . But Judge Tolub agreed to take the case. Both he and Judge Gallet said they had never met.

One issue at stake was how much money Judge Gallet’s ex-wife should reimburse him for their 11-year-old daughter’s health insurance. After the hearing on Feb. 3, Judge Tolub determined that the ex-wife owed Judge Gallet even more money than he thought. But taking another swipe at Judge Gallet, Judge Tolub ruled: “The plaintiff, for all of his mathematical expertise, undercalculated his costs.”

Judge Tolub also seemed amused by the divorced couple’s petty acrimony. “Needless to say, the plaintiff never furnished the defendant with documentation to support his claim for reimbursement and, not to be outdone, defendant refused to provide documentation as to the amount of life insurance she was required to keep in force pursuant to the agreement.”

Even more stinging, however, was Judge Tolub’s decision to invalidate the couple’s 1993 separation agreement. His grounds: that it had violated three different provisions of the state’s child support statute, something that Judge Gallet, both sides’ lawyers and the mediator all should have known at the time. Judge Tolub ruled that he would have to determine the child support arrangement anew.

The invalidation of a separation agreement involving a former Family Court judge amused The New York Law Journal , which blurbed the decision on its front page, then published it in its entirety. Included in the text, courtesy of Judge Tolub, was the name of the couple’s daughter and the fact that she was adopted, neither of which were significant to the questions of law at hand.

Fellow judges saw it as a low blow. “It’s a wise-ass thing to do,” said one judge, “gratuitously nasty.” But some said they weren’t surprised. Judge Tolub once hung up on another colleague while negotiating over the schedule of a lawyer they both needed in their courtroom.

Judge Gallet himself had little to say. Calling the decision “kind of a security breach,” he nonetheless shrugged it off. “It’s unpleasant, but that’s life.”

Other judges wondered how the case had found its way to the Law Journal . Judge Tolub wouldn’t comment, because the case is pending, but his law secretary, Paul Alpert, said the judge’s office did not provide his ruling to the law newspaper of record.

But some judges said he should have anticipated that a ruling involving a fellow judge would attract media interest, and that greater discretion was warranted. Unless, of course, there’s a political motive here–as courthouse insiders are openly speculating.

Judge Tolub comes up for re-election later this year. Elected in 1989 from the East Side with the support of Ray Harding’s Liberal Party, Judge Tolub is in the sights of the Democratic Party. They want him out, with a Democrat picked by Herman (Denny) Farrell, the party’s boss in Manhattan, in his place.

Judge Gallet is a Democrat, as is his current wife, a lawyer named Bonnie Cohen-Gallet. She is known to be interviewing for a Housing Court position, but courthouse insiders said her name has emerged as a possible challenger to, er, Judge Tolub. In fact, said Ms. Eileen Zucker, staff director to Mr. Farrell, Ms. Cohen-Gallet is one of two candidates being considered for Judge Tolub’s spot.

Was Judge Tolub’s decision a pre-emptive strike? Some fellow judges think so. Judge Gallet said he thought it was a coincidence. “I don’t see what political advantage it could have given him,” he said.

Safir Case Argues Drinking and Law Don’t Mix

Are you still working when you’re having a Campari and soda with your boss in the evening at the “21″ Club? That essential question came before Civil Court Judge Diane Lebedeff. Earlier this month, the judge decided that at least in the case of Marilyn Mode, the spokesman for the New York Police Department, she was almost surely still on the job.

The question came to the fore in a slander suit filed by Ms. Mode’s boss, Commissioner Howard Safir, against WCBS-TV. Correspondent Marcia Kramer had reported that Mr. Safir had eaten at La Ristorante Taormina, a restaurant that once had mob ties, and used city funds to pay for the meal, as well as to give a $500 tip. Mr. Safir denied it, saying his dinner had been paid by the Finest Foundation, a private police support group. WCBS later retracted its report, acknowledging that Mr. Safir paid for the meal with private money, but Mr. Safir went ahead and sued, anyway.

Mr. Safir brought the suit as a private citizen; attorney Raoul Felder is handling it on a contingency basis. At issue in Judge Lebedeff’s discovery ruling was whether Ms. Mode also acted as a private citizen when she talked with Mr. Felder about the WCBS report.

On the night of the broadcast, Ms. Mode had made a brief rest stop at “21,” filling in Mr. Safir and Mr. Felder about her discussions with WCBS during its reporting about the Taormina dinner. When WCBS’s lawyers asked her to recount the conversations, however, she declined. She claimed she had been working as Mr. Safir’s private agent, and that the discussion thus was protected by the attorney-client privilege.

The judge said prove it: “Commissioner Safir, suing as a private citizen and represented by private counsel, cannot transform Mode into a purely private agent unless she was acting in a purely private capacity while not on the government payroll.”

Judge Lebedeff said that Ms. Mode could still see her comments to Mr. Felder ruled out of bounds. All she had to do was produce time sheets that showed she was off the job.

You can reach N.Y. Law by confidential e-mail at mfleischer@observer.com.