He has gotten the law correct when ruling against fellow judges, largely quashing a jury’s verdict against Leona Helmsley for damages bigger than the hotelier’s reputation, and slapping Spike TV with a cash-draining injunction.

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.

Take for example a December decision involving the plain language in a lease. Tolub ruled in Sterling National Bank v. Eastern Shipping Worldwide, Inc. that even though the lease agreement in question clearly states that any future lawsuits involving the lease had to be filed in New York court, the suit could move to New Jersey instead.

The Appellate Division wrote in its decision reversing Tolub that the “ ‘very point’ of forum selection clauses . . . is to avoid litigation over personal jurisdiction," further noting that it is "the well-settled 'policy of the courts of this State to enforce contractual provisions for choice of law and selection of a forum for litigation.'"

One attorney for the bank, which had sought to keep the litigation in New York as the lease stipulated and lost in Tolub’s courtroom, says the Appellate Division was more willing to look at the matter from a “logical standpoint.” Tolub, he said, was looking at it from an “emotional” perspective.

“I thought his decision was wrong,” says Steven Karlin, who represented Sterling National Bank. “But one wrong decision does not a career make.”


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.

Yet reversals kept coming. That same month, the Appellate Division found that Tolub had erred in another contract dispute. This time, he ordered Luigi Forino to cover a defaulting tenant’s rent, even though again, the “plain wording” of the agreement indicated that Forino was not required to do any such thing.

What makes the reversals even more confusing is that the Riverdale resident, who was a longtime law secretary on the New York Civil Court and the state Supreme Court in Manhattan before joining it as an acting judge in 1998, enjoys a reputation as a mostly solid and steady jurist. Justice Tolub, who graduated with undergraduate and law degrees from New York University in the 1960s, declined to be interviewed for this story.

Joseph Burden, a Belkin Burden Wenig & Goldman real estate litigator who represents landlords, has frequently appeared in Tolub’s courtroom. “He’s always ready to go, knowledgeable about the law, even-tempered,” says Burden, who says Tolub ruled against him in his last case.

In early 2000 Tolub left the matrimonial part in Manhattan, and moved to the civil part. In the forward to a self-help divorce guide for women, Tolub concluded by telling readers that “I’m out of matrimonials as of April 2000. My blood pressure is already down ten points!”

Perhaps his blood pressure didn’t go down enough. Last November Tolub was reversed for too hastily dismissing a legal malpractice case. He was reversed four times the next month, including twice on contract cases.

The New Year 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.”

Toward the end of January, the Appellate Division was almost snippy when it reversed a Tolub decision that had denied an insurance company’s motion to dismiss a complaint by an apartment building owner. The policy provisions, concluded the appellate judges, “could not be clearer.” Those provisions gave the insurance company the right to inspect the damaged property — in this case, a burst cooling tower. But another party had destroyed the tank, and the insurance company never got to inspect it a second time, as the parties had agreed.

The owners of the tank might have gotten a raw deal, since they did not actually destroy the tank. Even so, a contract is a contract, and the insurance agreement - as well as a verbal agreement - provided the insurance company with the right to a full inspection of the damage, which it didn't get. The Appellate Division noted that the court is “not free to ‘make or vary the contract of insurance to accomplish its notions of abstract justice or moral obligation.’ ”

Contract law and leases are not necessarily any more complex in New York than in other states, despite the rabid real estate market and complaints that tenants have unusually powerful rights under laws governing leases in New York City. One thing that can make it more challenging is that there is simply a bigger volume of decisional law in New York courts than in other states.

“That has the potential to make things more complicated,” says Meredith Miller, a professor at Touro Law School who teaches contracts.

But when it came to another case in which Tolub was reversed in January, a fairly run-of-the-mill issue was at hand. A Duane Reade store had asked for summary judgment against a landlord, but Tolub seemingly ignored — or forgot — a previous reversal the Appellate Division had made on the same case.

Duane Reade subleased one of its spaces, and when threatened with the termination of the lease, kicked out the thrift shop that was doing business there. Under New York law commercial tenants have the right to a so-called Yellowstone injunction, which allows the tenant to fix their violation of a lease in a timely manner and avoid losing the lease. In 2004, the Appellate Division had reversed Tolub when he denied Duane Reade a Yellowstone injunction.

Then, in the more recent decision in the same case that was reversed by the Appellate Division in January, Tolub said the landlord could go ahead and terminate the lease with Duane Reade anyway — and awarded attorney’s fees to the landlord. Again, the Appellate Division noted that he seemed to have missed the tenant’s right, which was “clearly spelled out in the lease.”

Yellowstone injunctions are not novel, and are often clear-cut matters of fact, said Touro’s Mitchell — although, like most things, lawyers can obfuscate them.

“Attorneys on both sides are going to be able to argue nuances or split hairs, and it could be a complex issue,” says Gary Wachtel, who practices in the area of landlord/tenant litigation and specializes in commercial landlord Yellowstone injunctions. “But generally speaking, it seems pretty straightforward.”

That said, Wachtel, who has appeared in front of Tolub (though not in this case) calls him a “very smart and fair judge.”

A more recent decision indicates that Tolub might be getting back in the Appellate Division’s good graces in finding the correct answer to unhappy landlords and disgruntled tenants hashing out their problems in court. In February, the First Department said that Tolub had made the right call when he rejected a tenant’s bid for a Yellowstone injunction. Tolub ruled that the tenant — Japanese wholesaler “Smile Corp.” — had not filed for the injunction quickly enough, and the Appellate Division agreed. But when Tolub sanctioned Smile Corp.’s trial counsel, the Appellate Division again reined him in, saying the sanctions — a rare move in the first place — should not have been imposed.