As the appellate panel summed up the Family Court proceeding in its ruling in the case, Matter of Jacob P. v. April B.  (February 27), Freeman suppressed those “grave misgivings about the cause of the child's injuries,” which were both old and new, and on different parts of the body. She also hinted that she was leery about the father’s refusal to testify. Freeman “nonetheless concluded that, with certain safeguards in place, including home visits by a visiting nurse service, compliance by the parents with medical and early intervention appointments, and an order prohibiting the father from being alone with the child, the parole of the child to both parents was appropriate pending the fact-finding hearing on the abuse petition.”

The unanimous appellate panel begged to differ. The evidence laid out before Freeman clearly established that “the return of the child to his parents presents an imminent risk to the child's life and health.” Freeman’s order had been stayed pending the appeal, so Jacob had remained in foster care. That’s where the Appellate Division said he should stay, pending resolution of the abuse case. In the meantime, if Freeman thinks the parents deserve a chance to spend time with Jacob, she can set up supervised visits at the foster home.

OTHER NOTABLE REVERSALS

KINGS COUNTY

INSURANCE: Justice Yvonne Lewis gave another pass — the sixth in less than six months — to a plaintiff who should have been stopped at the gate. This time, Lewis allowed Walter Guachichulca to pursue a claim against an insurance company for an injury he sustained on the job, after the judge, according to the Appellate Division, perused the insurance policy and managed to “find an ambiguity where none exists.” The policy in fact contains an unambiguous “exclusion for bodily injury to an employee of an insured if the injury occurs in the course of employment,” the unanimous appellate panel noted. Guachichulca v. Laszlo N. Tauber & Assoc., LLC (February 27)

TORT: Justice Mark Partnow, a Reversal Report regular, continues to rack up reversals at what has got to be a record pace. He was reversed twice in a day on Feb. 27.  In one case, he erred in declining the city’s motion to dismiss a claim filed by Cesar Rodriguez, the driver of a car that was struck by another vehicle and propelled onto the sidewalk, where it hit a city-owned storage shed, causing a pole that was on top of the structure to fall through the windshield and pierce Rodriguez’s leg. Even if the city improperly erected the sidewalk shed at a school construction site, said the Appellate Division, the proximate cause of the plaintiff’s injuries was the collision, and the city had nothing to do with that. Rodriguez v. Hernandez

In the second case, Partnow held the city to account for injuries that Noreen Sammut blamed on a crack in an outdoor tennis court. The evidence indicated that the crack was “open and obvious,” according to the appellate panel. Sammut, who chose to play there anyway, assumed the risk of injury, and Partnow should have dismissed her complaint. Sammut v. City of New York (February 27)

TORT: Ford Rose couldn’t catch a break. First, her car was stolen. Then, the apparent thief drove her car into a vehicle driven by Andrew McDonald before fleeing from the scene. When McDonald sued Rose for his injuries, Justice Bernadette Bayne added insult to injury by refusing to let Rose claim “nonpermissive use” as a defense. The Appellate Division came to Rose’s rescue. The evidence “clearly established . . . that the defendant's vehicle had been stolen and that its theft had been reported to the police 11 days before the accident occurred.” Therefore, Rose has every right to claim that whoever was behind the wheel of her car when it collided with McDonald was using it without her permission, the appellate judges said. McDonald v. Rose (February 27)

NO-FAULT INSURANCE: Justice Lewis Douglass overlooked a gaping flaw in the medical testimony presented by Marie Vidor in support of her claim that she suffered a “serious injury,” allowing her to bypass the no-fault law. Her doctor was aware that she had been injured in a previous accident, but did nothing to exclude that as a cause of her recent pains. He didn’t even bother to look at any of the medical records from the prior accident, relying on her own recollection about her prior injuries. As a result, his conclusion that her spinal injuries resulted from her latest accident were speculative, and Douglass should have dismissed her claim. Vidor v. Davila (February 27)

ATTORNEY’S FEES: Justice Herbert Kramer slashed an attorney fee award of $88,523.50 in a foreclosure action to $5,000. The Appellate Division agreed that there was no evidence that the higher sum was reasonable, but Kramer should have held a hearing before summarily cutting it by nearly 95 percent. NYCTL 1998-1 Trust v. Oneg Shabbos, Inc. (February 27)

TORT: Justice Martin M. Solomon should have dismissed Rahkeya Thomas’s claim against the Transit Authority for injuries she sustained on a bus that was in an accident. The Transit Authority proved that the driver of the bus “did not act negligently under the emergency circumstances presented,” the Appellate Division said. Thomas v. New York City Transit Authority (February 27)

NEW YORK COUNTY

CONSTITUTION: Justice Walter Tolub picked the wrong dog in a fight over state government turf. He agreed with Superintendent of Insurance Gregory V. Serio that then-state Comptroller Alan G. Hevesi had no power to audit the operations of the Insurance Department's Liquidation Bureau, which manages the estates of insolvent insurers. The Appellate Division found two sections in the State Finance Law that bestow such powers on the Comptroller, and reinstated the subpoenas that Tolub quashed. Matter of Serio v. Hevesi (March 6)

CIVIL PROCEDURE: Bank Atlantic asked for an extension of its restraint on an account, explaining that it would suffer prejudice without the opportunity for continuing restraint. Nobody opposed the motion, but Justice Nicholas Figueroa denied it anyway. Finding “no countervailing rationale” for denying the bank’s request, the Appellate Division reversed Figueroa and gave the bank the extension it sought. M & R Leasing Inc. v. Bank Atlantic  (March 6)

TORT: Justice Robert D. Lippmann dismissed Juana Baez-Sharp’s slip and fall claim, based in part on accident reports that were unaccompanied by affidavits attesting to the preparers' personal knowledge of the incident or duty to create such reports. Lippman shouldn’t have considered those accident reports, said the Appellate Division. And he shouldn’t have dismissed Baez-Sharp’s complaint, given that the Transit Authority failed to establish that it lacked notice of the allegedly “leaky” condition in the subway stairwell that allegedly caused her to take a tumble. Baez-Sharp v. New York City Transit Authority (March 6)

VENUE: Justice Milton A. Tingling erred in granting Volvo’s motion to change the venue of a suit from Manhattan to Nassau County, the Appellate Division said. Volvo listed a Manhattan address in papers filed with the Secretary of State, therefore, as a foreign corporation, that is its home for venue purposes, whether it actually maintains an office in Manhattan or not. Shetty v. Volvo Cars of North America, LLC (March 1)

LABOR LAW: Justice Doris Ling-Cohan should have dismissed Freddi Cordero 's Labor Law claim, the Appellate Division said. When he was injured on the job, Cordero was replacing worn-out slats in a security gate that had been operational for years, which amounted to routine maintenance in the course of normal wear and tear, a type of work not covered by the Labor Law section under which he filed suit. Cordero v. SL Green Realty Corp. (March 1)

PAROLE: Justice Louis B. York ordered the corrections commissioner to put Salvatore Marciano back in a temporary release program and give him an expedited parole hearing, never mind the claim that he had threatened to kill his wife. The Appellate Division rescinded York’s directive and issued different instructions on how authorities should handle the felon. York had evidently been swayed by indications that the wife’s allegation was fabricated. But the appellate judges said that didn’t outweigh the “substantial evidence” that in fact he issued the threat during an altercation that he admitted occurred on the day in question. The Appellate Division agreed, however, that Marciano shouldn’t have been summarily sent back to prison. Since he had been admitted into the temporary release program, he has a liberty interest in continued participation and therefore was entitled to notice and an opportunity to reply to the charges. Ultimately, the appellate judges agreed with York that the commissioner’s determination should be annulled, at least for the time being, pending a hearing on whether he has a right to remain in the release program or not. Matter of Marciano v. Goord (March 1)

BRONX COUNTY

PRODUCT LIABILITY: Justice Sallie Manzanet allowed a surviving family member of Terence Donovan to proceed to trial in a product liability suit against the manufacturer of a respirator he was wearing when he died on the job as a sandblaster. That seemed on its face like a sensible ruling. After all, Donovan died of asphyxiation when the breathing device evidently failed to supply him with enough oxygen. As the Appellate Division saw it, however, the claim was fatally flawed. The plaintiff sued solely on a theory that the respirator was defectively designed — yet offered no evidence that it was unsafe when it was shipped by the manufacturer eight years before the accident. The manufacturer, on the other hand, proved that it complied with all regulatory requirements, so Manzanet should have dismissed the complaint, the Appellate Division said. Donovan v. All-Weld Products Corp.  (March 6)

QUEENS COUNTY

CIVIL PROCEDURE: Justice Augustus Agate bent over backwards to bail Sudhvinder Ludhar out of a default judgment that had been entered against him. Way too far backwards, the Appellate Division said. The only excuse that Ludhar offered for failing to answer the lawsuit was his claim that he had never been served with a copy of the suit. Yet he offered no evidence to contradict the affidavits of service and other evidence, which indicated that he in fact was properly served. Agate accepted that excuse anyway, and then the judge proceeded to compel the plaintiff, Tani Sime, to accept the late answer, even though Ludhar hadn’t made a motion seeking such relief. Sime v. Ludhar (February 27)

FAMILY: Though the father identified as Bobbie W. had sexually abused one of his children, that didn’t mean other children for whom he was legally responsible suffered derivative abuse, concluded Family Court Justice Barbara Salinitro. The Appellate Division disagreed. In light of the nature and duration of his abuse of one child, he demonstrated “such an impaired level of parental judgment so as to create a substantial risk of harm to any child in [his] care,” the appellate judges said. Matter of Daniel W. v. Bobbie  (February 27)

TORT: Justice Joseph Dorsa should have let a pavement-maintenance contractor off the hook for Thomas DeMartino’s slip and fall in a Home Depot parking lot. There was no evidence that the contractor had done any work in the vicinity of the alleged mishap, and its contract with the retailer to keep the parking lot patched up wasn’t a “comprehensive and exclusive” deal that freed Home Depot from its own duty to maintain the premises in a reasonably safe condition, the Appellate Division said. DeMartino v. Home Depot  U.S.A., Inc. (February 27)

WORKERS COMPENSATION: Justice Peter O'Donoghue should have dismissed Muriel Oben’s tort suit, the Appellate Division said. Since there was no evidence that her employer, Charmer Industries, committed an intentional misdeed, Oben’s only recourse is a workers' compensation claim. Oben v. Charmer Industries Inc. (February 27)

TORT: Justice Alan LeVine erred in denying Rosario Chavez’s motion to restore her wrongful death action to the trial calendar, said the Appellate Division, without explaining exactly how the judge went wrong. Chavez v. City of New York (February 27)