It is well settled law in New York that a party to an illegal contract can’t ask the courts for help in enforcing the deal, appellate judges observed, dismissing the complaint. Bonilla v. Rotter (January 25)
 
In 1985, Rotter was charged by the Manhattan district attorney’s office for allegedly participating in a scheme to defraud insurance companies, but was not convicted in that case. Last year, he filed a $40 million suit against his former law partner, Alan Ripka, for allegedly stealing clients.

OTHER NOTABLE REVERSALS

KINGS COUNTY

TORT: Justice Martin Schneier allowed Lettitia McKinney to proceed with her suit against a building owner for injuries she allegedly sustained when she fell in a staircase on an allegedly loose piece of rubber tread. That decision earned the judge his seventh reversal — and fifth in which he erred in favor of the plaintiff — in the last four months. Schneier should have taken a closer look at McKinney's deposition, the Appellate Division said. Her own testimony established that the defective condition didn’t exist at the time and place where it allegedly caused her fall. McKinney v. Ardee Plaza, LLC  (January 30)

FAMILY: Justice Emily Olshansky didn’t stop to consider whether six-year-old Kaitlyn Rose Topp would benefit from regular 12-hour round-trip drives to a prison in upstate New York for visits with her incarcerated father, Michael Topp. He had a right to the visits, and that’s where Olshansky’s analysis of the matter began and ended. The judge “improvidently exercised [her] discretion by granting the father's visitation request prior to forensic evaluation regarding whether such visitation would be inimical to the child's best interest,” said the Appellate Division, in reversing the visitation order and remanding the case for further proceedings. Matter of Topp v. Bologna  (January 30)

DISCOVERY: Justice Arthur Schack dismissed a complaint that sought damages for the alleged breach of a lease on grounds that the plaintiff had failed to comply with discovery requests. Such harsh punishment wasn’t deserved, the Appellate Division said, because there was no proof that the plaintiff’s failure to make certain disclosures was “willful and contumacious,” as required to sustain a dismissal. 34-35th Corp. v. 1-10 Industry Associates LLC  (January 30)

FRAUD: Justice Bert Bunyan said a mortgage company should have noticed discrepancies in signatures on a contract for the sale of Alberta Harris’s home, a revelation that would have alerted her about a scheme to defraud her of some of the proceeds from the sale. The Appellate Division, however, concluded that the lender had no duty of care to authenticate the sales contract, so Bunyan should have dismissed the complaint. Harris v. Adejumo  (January 30)

CRIMINAL: Justice Guy Mangano violated “the one persistently protected and enunciated rule of jury selection,” said the Appellate Division. After the prosecutor and defense counsel had each been given a chance to exercise peremptory challenges to prospective jurors, he gave the prosecution a second crack at a juror who had been accepted by the defense. Mangano’s error in dismissing the juror at the prosecutor’s behest was serious enough that the appellate panel was forced to reverse the conviction for grand larceny entered against Terrell Lambert in the case. People v. Lambert  (January 30)

QUEENS COUNTY
 
DIVORCE: Justice Sidney Strauss erred in summarily dismissing Eileen Awerman’s claim that her ex-husband was cheating her out of spousal support payments. It appears that he indeed had been underreporting his income for years, so Strauss should have allowed her to proceed with her claim for more support. Awerman v. Awerman  (January 30)

CRIMINAL: Justice Robert Kohm should have let the jury decide whether Joseph Fermin was justified in shooting at the alleged victim, the Appellate Division said. Fermin asserted that he was in his car when the victim ran toward him with a gun in his hand, leaving Fermin with no escape. A reasonable jury might have concluded on that basis that Fermin was justified in shooting first in self defense, but since Kohm refused to instruct the jury on that issue, Fermin’s conviction on the assault count must be vacated, the appellate panel concluded. People v. Fermin (January 30)

BRONX COUNTY

WORKERS COMPENSATION: Justice Alison Y. Tuitt allowed Angel Villanueva to proceed with a suit against his employer for injuries he sustained when he fell from a ladder while painting, even though he had already collected worker’s compensation benefits under the plan carried by the owner of the building where he was working at the time. That precluded his suit against his employer, which should have been dismissed, the Appellate Division said. Villanueva v. Southeast Grand St. Guild Housing Development Fund Co. Inc. (February 1)

NO-FAULT INSURANCE LAW: Justice Douglas E. McKeon should have dismissed Carlos Gonzalez’s claim that he suffered a “serious injury” in an auto accident and therefore must be allowed to sue for damages, the Appellate Division said. All the range-of-motion studies revealed that Gonzalez’s spine was even more flexible than that of an average man his age, ranging from 100 percent to 120 percent of normal, clearly refuting the claim that McKeon bought. Gonzalez v. A.V. Managing, Inc.  (February 6)

INSURANCE: Justice Patricia Anne Williams erroneously dismissed Candi Steele’s petition for leave to commence an action for uninsured motorist coverage on grounds that the statute of limitations had expired. In fact, said the Appellate Division, Steele, who was 13 when she was struck by a hit and run driver while riding her bike, filed the claim two years after turning 18, and since the three-year statute of limitations was tolled while she was still a minor, it had not yet run out. Steele v. Motor Motor Vehicle Accident Indemnification Corporation  (February 1)

NEW YORK COUNTY

TORT: Justice Robert D. Lippmann was too quick to exonerate the driver of the bus on which Valerie Edwards was thrown to the floor in a sudden stop. Finding that the driver was forced to slam on his brakes to avoid an accident, Lippmann invoked the emergency doctrine and dismissed her lawsuit.  Edwards, however, insisted that the bus was going too fast, producing conflicting accounts of the accident that must be sorted out in a trial, the Appellate Division said. Edwards v. New York City Transit Authority (February 1)

TORT: Justice Karen S. Smith unfairly punished attorneys for a bank for notifying the county sheriff that they believed Bobb Courtman, who was refusing to return funds that had been erroneously deposited his account, was guilty of stealing. Courtman was arrested by the sheriff, charged with theft and ultimately acquitted of wrongdoing. Smith allowed him to proceed with a suit against the attorneys for false arrest and intentional infliction of emotional distress. Smith should have recognized that the attorneys were acting in good faith, the Appellate Division said. Therefore, they weren’t liable for the actions of the sheriff’s department, which conducted its own investigation and reached its own conclusion that indeed a crime may have occurred. Courtman v. Hudson Valley Bank (February 6)

DISCOVERY: Justice Rosalyn Richter should have allowed the defendant to belatedly add a counterclaim for fraud, the Appellate Division said. The plaintiff, after all, “effectively admitted the falsity of the alleged representations,” but only in a supplemental response filed at the last minute, which demonstrated the merit of the proposed counterclaim and also provided the defendant with a reasonable excuse for the delay in seeking to amend its answer. Sheets v. Liberty Alliances, LLC  (February 1)

INSURANCE, DISCOVERY: Justice Shirley Werner Kornreich unduly crimped one insurance company’s demand for records from another insurer. The request for information about other cases in which a policy exclusion for roofing work came into play was perfectly reasonable because the insurer on the defense in this case is invoking the same exclusion to disclaim coverage for a roof fire, the Appellate Division noted. The insurer’s interpretation of the exclusion in those other cases will directly reflect on whether its refusal to settle the plaintiff’s claim in this case was in bad faith. Diamond State Insurance Co. v. Utica First Insurance Co. (February 1)

REAL ESTATE: Judith J. Gische prematurely jumped to conclusions about who owns a strip of land that according to the title belongs to the owners of the building at 447 Hudson Street but had been used, perhaps for decades, as an outdoor patio by a succession of owners of the building next door. Since the current owners of the building next door, who are now suing for title, have been there for only seven years, they have not reached the 10-year threshold needed to claim adverse possession, Gische ruled. However, she should have first considered how the prior owners had used the disputed strip of land, said the Appellate Division, which reinstated the plaintiff’s claim for title to the land and sent the case back to court. Keena v. Hudmor Corp. (February 6)

SEARCH: Justice Bruce Allen was too squeamish in his assessment of a case in which a sheriff’s deputy plucked a plastic bag full of crack cocaine out of arrestee Azim Hall’s rectum, the Appellate Division said. Allen declared the search out of bounds and suppressed the drugs. The appellate judges, however, concluded that the search was by the book and reinstated the charges. The officers knew from experience that drug dealers commonly hide drugs between their buttocks. That, coupled with their observation of a string protruding from Hall’s rectum during the routine strip search  they conducted prior to placing him in a detention cell, “justified the immediate actions taken to physically retrieve the secreted narcotics.” The Appellate Division, concluding that the evidence is admissible, reinstated the indictment. People v. Hall (February 6)