To help him in his fight to get his job back, Minally retained Edward M. Rappaport, a retired Brooklyn judge. Rappaport convinced Martin that Minally was entitled to a “name-clearing hearing,” a proceeding in which public employees faced with termination for stigmatizing reasons get a chance to refute or explain away the accusations.

The Appellate Division made short shrift of Martin’s ruling. The stipulation said testing results were conclusive — no ifs, ands or buts, and Minally would have to live with that, the appellate judges said. Matter of Minally v. Carey (November 28).

OTHER NOTABLE REVERSALS

NEW YORK COUNTY

CRIMINAL: Justice Gregory Carro allowed prosecutors to use illegaly seized evidence against Santiago Morales. A knife and other incriminating items were found in his bag at the police station where he was taken after he was arrested for an assault. The contents of the bag might have been admissible if they were found during a routine inventory search at the station, but prosecutors gave no indication that the police had used such a procedure, and curiously, they objected on relevancy grounds when the defense brought the issue up in trial. The appellate judges affirmed the convictions related to the sexual assault but vacated the conviction on a weapons count.

People v. Morales (November 30).

CRIMINAL: Justice Carol Berkman entered a judgment against Jose Helena on two kidnapping counts that were duplicative, said the Appellate Division. People v. Helena (November 30).

MALPRACTICE: Justice Debra A. James correctly dismissed Catherine Mitschele’s malpractice claim against her accountant, Leonard Schultz, because the last of the erroneous tax returns was sent to her more than three year before she filed suit, by which time the statute of limitations had expired. But James erred in concluding that the fraud claim was so intertwined with the malpractice claim that it had to go, as well. As the Appellate Division noted, the fraud allegation was much broader, asserting not only that Leonard made mistakes on the returns but that he did so to help Mitschele’s employer, who happened to be Leonard’s cousin, avoid payroll taxes. Mitschele v. Schultz (November 30).

EMPLOYMENT: A group of police officers went to court seeking an order requiring the New York City police department to turn over their personnel files to the Port Authority police department, where they were seeking work. Justice Sheila Abdus-Salaam gave the plaintiffs everything they wanted without even holding a hearing. Not so fast, said the Appellate Division. Abdus-Salaam summarily issued the injunction even though it wasn’t clear whether there was an urgent need for immediate disclosure of the records, said the appellate panel, sending the case back to court for a hearing. Matter of 35 New York City Police Officers v. City of New York (November 30).

SECURITIES: Justice Richard B. Lowe III didn’t think two securities firms that were seeking a declaratory judgment  determining which of the two was entitled to dividends had presented him with a justiciable controversy, so he sent them packing without resolving their dispute. The Appellate Division, however, concluded that potential dividends are as “real” as stocks or any other property and the litigants deserved an answer from the court. Pearl Securities LLC v. Knight Equity Markets L.P. (November 30).

INSURANCE: Justice Karla Moskowitz ordered a subcontractor’s insurer to indemnify the general contractor for workplace injuries sustained by the subcontractor’s employee. The Appellate Division, however, noted that the general insurance policy unambiguously excluded coverage for bodily injury to workers in the course of their employment. Given that the employee exclusion exempted the insurer from providing coverage to the subcontractor for the accident, the insurer “could not have been required to defend or indemnify [the contractor] for that same claim,” the appellate division said, in reversing. Moskowitz. Sixty Sutton Corp. v. Illinois Union Insurance Co. (November 30).

ATTORNEY’S FEES: In a dispute over a loan guarantee, Justice Helen E. Freedman approved the winning plaintiff’s claim for legal and accounting fees even though the guarantor was never provided with any records justifying those costs. Freedman correctly ruled that the guarantor had to pay for the loan default, but the Appellate Division sent the case back for a trial on the issue of exactly how much the guarantor owes. Eugenia VI Venture Holdings, Ltd. v. AMC Investors LLC (December 5).

JURISDICTION: Justice Judith J. Gische overstepped a jurisdictional boundary when she ordered a construction company in New Jersey to pay a New York insurance company’s claim for premiums. The Appellate Division noted that not only is the defendant based in New Jersey but so is the insurance broker that obtained the policy for the defendant, and the risks insured by the policy were also located there. The tenuous connections with New York were insufficient to give the New York court jurisdiction over the case. Insurance Co. v GFM Construction Inc. (December 5).

QUEENS COUNTY

TORT: Justice James Dollard declined to dismiss a slip-and-fall suit that he should have kicked out of court. It was filed by Givi Kobiashvilli, who was upended by an unidentified food substance on a ramp leading to a garage in the basement of the defendant’s apartment building. The Appellate Division agreed with the owner and manager of the building that since they didn’t create the hazard, nor did they know about it, they weren’t liable for Kobiashvilli’s mishap. Kobiashvilli v. Hill (November 28).

TORT: Justice Duane Hart dismissed a slip-and-fall suit that deserves a day in court. The suit was brought by Virginia Sampino, who tripped on a crack in the sidewalk that she said was at least half an inch deep and three feet long in the sidewalk outside the Eastern Meat store in Queens. There was a dispute over which of two adjacent businesses was responsible for that part of the sidewalk, but neither refuted the allegation that the sidewalk was cracked and that it caused Sampino’s accident, said the Appellate Division, reinstating the suit. Sampino v. Crescent Associates, LLC (November 28).

CRIMINAL: Justice Arthur Cooperman made several errors in a tumultuous case in which Frank LaPetina was charged with burglary, assault and other charges for barging into the home of Sunattie Persaud, erroneously thinking his daughter was inside and in peril. On the assault charge, Cooperman should have instructed the jury that they could consider LaPetina’s justification defense. There was evidence that he was told his daughter was inside and heard a scream, and so the jury should have been allowed to consider his explanation for his actions, the Appellate Division concluded, reversing the conviction on that count. The appellate judges also reduced the burglary conviction from a first-degree to a second-degree offense, since the victims weren’t injured. People v. LaPetina (November 28).

CRIMINAL: Justice William Erlbaum convicted Joseph Russell of first-degree assault for punching his wife 20 times, leading to the loss of her right eye. The Appellate Division, concluding that the vicious attack didn’t rise to the level of a first-degree offense, which requires depraved indifference to life, reversed the first-degree conviction, leaving a second-degree assault conviction in place.
People v. Russell (November 28).

KINGS COUNTY

Justice Mark Partnow, whose spate of recent reversals has been chronicled in this column, has been overturned in two more cases. In five previous reversals in the past two months, he erred in favor of the plaintiffs four times and once in favor of the defense. In his latest two reversals, he erroneously tilted each way once.

TORT: Partnow should have dismissed the suit filed by policeman William Link for an injury he sustained while performing his officials duties. The appellate division noted that in order for a police officer to sue for on-the-job injuries, he must prove that the city broke the law, yet Link failed to allege any specific statute, ordinance, or regulatory predicate with which the city failed to comply. Link v. City of New York (November 28).

NO-FAULT INSURANCE: Partnow should have sustained Joseph Museau’s complaint alleging that he sustained a “serious injury” and therefore had a right to bypass the Insurance Law and sue for damages. The defendants' own medical experts lent credence to Museu’s claims about the extent of his injuries, said the Appellate Division, reinstating the complaint. Museau v. New York City Transit Authority (November 28).

REAL ESTATE: Justice Ira Harkavy let Oleg Krasnytsky, the would-be purchaser of property, blow off the Dec. 17 closing date and set his own closing date of Feb. 1. The Appellate Division concluded that Krasnytsky may indeed have been ready, willing and able to purchase the property, but not by the closing date, so he has no right to force the defendant to go through with the sale. Fridman v. Kucher (November 28).

TORT: Justice Bert Bunyan declined to dismiss Nicholas Mansfield’s suit against the owner of a building for alleged code violations in the stairway where he slipped and fell. The Appellate Division noted that the stairway, which led to the basement, did not serve as a means of egress to an open exterior space and therefore did not meet the definition of “interior stairway” subject to the code requirements that Mansfield accused the defendants of violating. Nor did Mansfield identify any defects in the stairs, so Bunyan should have dismissed the suit. Mansfield v. Dolcemascolo (November 28).

DIVORCE: Justice Betsy Barros awarded an overly generous settlement to Carol Ann Aiello in a division of marital property. The evidence showed that Thomas Michael Aiello spent $52,471 of his separate funds to renovate the property, and he should have received sole credit for those expenses, the Appellate Division said. Aiello v. Aiello  (November 28).

LABOR LAW: Justice Michael Ambrosio allowed Olga Mikcova, a licensed asbestos handler, to proceed with a suit under a labor law provision covering elevation-related risks in the workplace. Trouble is, the metal barrier that fell on her, causing her injuries, did not fall from a higher elevation, as Mikcova claimed, and therefore she had no case under that statute. Her suit against the general contractors also should have been dismissed because the contract did not supervise or control her work, said the appellate division, reversinbg Ambrosio and dismissing the suit. Mikcova v. Alps Mechanical Inc. (November 28).

LABOR LAW: Joseph Ferenczi suffered an injury due to a legitimate elevated-related risk when he fell from an elevated walkway at his worksite. But Justice Muriel J.Hubsher should have dismissed his claim under the labor law provision covering such risks on other grounds, said the Appellate Division. Ferenczi was not on the job when he was injured. He had left work for the day when the foreperson sent everyone home, and returned a short while later to retrieve his cell phone. Ferenczi v. Port Authority of New York and New Jersey (November 28).