First, Schneier erred in dismissing the claim of Brooks’s wife for loss of services, though, according to the Appellate Division, there was enough evidence for the court to submit that claim to the jury. Later, when the employer’s attorney declined to call to the stand a doctor who had examined the injured plaintiff on the contractor's behalf, Schneier inexplicably refused the request of Brooks’s attorney to give the jury a missing witness charge, which would instruct jurors that they were free to infer that the doctor’s testimony would have been unhelpful to the defense.

In the end, the jury awarded Brooks “only” (to quote the Appellate Division) $1.15 million. But in light of the errors, the appellate panel granted Brooks — and his wife — a new trial on the issue of damages.  Brooks v. Judlau Contracting Inc.

OTHER NOTABLE REVERSALS

NEW YORK COUNTY

ATTORNEY FEES: Justice Louis B. York has been reversed twice in recent months for imposing overly harsh sanctions on errant attorneys. (See Reversal Report for 01-12-07) York was recently reversed two more times in cases involving lawyers. His ruling in one of the cases bolsters — but in the other belies — the suggestion implicit in the aforementioned pair of reversals that York has it in for members of the bar. Peretz Amir was the attorney on the wrong side of a ruling by York. The judge rejected Amir’s bid for a share of a hefty legal fee obtained by Easton & Echtman in a discrimination case that Amir brought to the firm. York apparently bought the firm’s claim that Amir wasn’t even a member. The Appellate Division, however, noted that the law firm’s letterhead and other evidence established that Amir was indeed an Easton & Echtman associate who brought the case to the firm and performed at least some work on the suit, which generated a legal fee of $2.88 million. Amir, therefore, was entitled to one-third of that sum, the appellate panel concluded. Easton & Echtman, P.C. v. Aurnou (April 5)

LEGAL MALPRACTICE: In a second recent reversal, Justice York actually tried to give a lawyer litigant a break. He dismissed Hyman Fenster’s legal malpractice claim against Gerald Mondora, who allegedly botched a medical malpractice case. York erroneously jumped to the conclusion that the statute of limitations for the tort suit had expired and there was nothing Mondora could have done about it. The Appellate Division, however, thought there was a chance that the medical claim was still viable, so York should have let Fenster have a crack at Mondora in court instead of summarily dismissing his legal malpractice claim. Fenster v. Smith (April 3)

CONTRACT: Justice York was reversed, in part, a third time so far in April in a contract case. The Appellate Division found that York correctly dismissed the plaintiff’s complaint seeking enforcement of a contract for the sale of air rights. Ongoing negotiations showed that there was never a meeting of the minds between the parties on all essential terms, hence no contract and no breach. However, York erred in refusing to grant summary judgment to the defendant on its counterclaim for breach of its contract with the plaintiff. According to the clear terms of the deal, the plaintiff was obligated to reimburse the defendant for its professional costs, the appellate panel concluded. Spier v. Southgate Owners Corp.  (April 10)

CONTRACT: Gucci won a $2 million trademark infringement judgment against Sample Sale Wholesalers, but agreed to let the defendant off the hook for a mere $75,000, payable in installments. The defendant made a couple of payments and then stopped, prompting Gucci to exercise its right, as spelled out in the settlement agreement, to demand payment of the judgment in full. Justice Walter B. Tolub rejected Gucci’s claim on grounds that the company had failed to strictly follow procedures for notifying the defendant of the default, with a letter by both mail and fax. Tolub, whose disagreements with the Appellate Division over matters of contract interpretation have been regularly documented in this column, got it wrong yet again, the appellate judges concluded. It isn’t clear that the fax was even required to notify the defendant, and in any event, there was no dispute that he had received the letter. So Gucci was entitled to release from the settlement agreement and reinstatement of its claim for the full amount of the trademark judgment, less the payments it had already received. Gucci America Inc. v. Sample Sale Wholesalers, Ltd.  (April 10)

INSURANCE: In a second case, Justice Tolub was “unreasonable as a matter of law” in rejecting an insurer’s attempt to disclaim coverage in a personal injury case. The insurer asserted that the policyholder provided the insurer with late notice of the claim, but in Tolub’s view, it was the insurer who was untimely — for disclaiming coverage only after conducting a 38-day investigation. Tolub ordered the insurer to defend and indemnify its policyholder in the suit. As the Appellate Division saw it, however, the insurer’s investigation of the complicated chain of events surrounding the underlying personal injury suit was imminently reasonable and was the only way the insurer could make a good faith decision regarding coverage. Moreover, the fact that the inquiry took 38 was due entirely to plaintiff's refusal to cooperate, the appellate panel said, ordering Tolub to reconsider the insurer’s bid to disclaim coverage. Ace Packing Co. Inc. v. Campbell Solberg Associates Inc. (April 10)

JURORS: Judge Robert H. Straus committed reversible error in a robbery case by deviating from the order of jury selection established by statute. Straus permitted the prosecutor, over defendant Joseph McNeil's objections, to withdraw two peremptory challenges. That unfairly forced McNeil’s attorneys to use his two remaining peremptory challenges to strike the reinstated panelists, the Appellate Division said, vacating McNeil’s robbery conviction. People v. McNeil (April 3)

CIVIL PROCEDURE: Justice Milton A. Tingling gave a two-time procrastinator too much latitude. Magda Velez wanted to serve a late notice of claim against the housing authority, but even her motion for leave to serve a late notice of claim was late. Tingling should have denied the motion and dismissed the complaint, the Appellate Division said. Velez v. New York City Housing Authority (April 3)

DAMAGES: Justice Marylin G. Diamond slashed a jury’s punitive damage award by nearly two-thirds, from $275,000 to $100,000. But the award was still excessive, said the Appellate Division, which chopped it by an additional 90 percent to $10,000. The verdict was awarded to Michael Hayes, co-owner of a Greenwich Village restaurant named Boxers, in a counterclaim for malicious prosecution filed against the other co-owner, Steven Maskantz. After an altercation between the two, Maskantz had pressed criminal assault charges against Hayes, resulting in an acquittal, and then sued him civilly for assault and battery. The jury rejected that claim, but was impressed enough by the counterclaim to sock Maskantz with the stiff penalty that was ultimately cut. Maskantz v. Hayes (April 3)

RENT CONTROL: Justice Judith J. Gische approved an illegal rental agreement between Victoria Munroe and her landlord in a rent-controlled building. Munroe had agreed to pay in excess of the legal regulated rent on one of her three connected apartments and waive her right to complain about it. In return, the landlord had agreed to drop its bid to gain possession of the apartments on grounds that Munroe wasn’t using the rental units as her primary residence. That arrangement worked for the parties, and it satisfied Gische, but it didn’t sit well with the Appellate Division. The deal violates public policy by waiving benefits of the Rent Stabilization Law and is therefore unenforceable, the appellate panel said. Riverside Syndicate, Inc. v. Munroe (April 5)

PUBLIC RECORDS: Justice Doris Ling-Cohan agreed with Brooklyn Borough President Marty Markowitz that he should have access to certain insurance company records in his investigation of redlining in the borough. Gregory Serio, superintendent of the state Insurance Department, the keeper of the records in question, disagreed. So did the Appellate Division. The Insurance Department reasonably concluded that ZIP code reports filed by private insurers are exempt from disclosure under the Freedom of Information Law. While it is true that the department had previously favored public disclosure of those same records, the restrictive policy was properly based on new information detailing the competitive harm insurers would face if the reports were disclosed, the appellate panel said. Matter of Markowitz v. Serio (April 5)

DISCOVERY: Justice Herman J. Cahn ordered the defendant to pay the plaintiff’s legal fees, after Cahn leaped too quickly to the conclusion that the defendant was in contempt of court. A referee, whose findings were the basis for Cahn’s ruling, had gone so far as to conclude that the defendant was properly served with nonjudicial subpoenas and had failed to comply with them. But the referee never even addressed the issue of whether the non-compliance constituted contempt of court, said the Appellate Division, rescinding the fee award. Westland Garden State Plaza, L.P. v. EZAT, Inc.  (April 10)

TORT: Justice Joan A. Madden erred in holding the Archdiocese of New York accountable for the actions of an allegedly wayward priest, who was accused in a lawsuit of using undue influence to obtain more than $490,000 from an elderly parishioner for his own benefit. The executor of the allegedly looted estate failed to demonstrate that the Archdiocese knew or should have known of the priest’s propensity to commit that sort of misconduct, and in any event, the priest’s actions were not in furtherance of archdiocesan business, the Appellate Panel noted. So Madden should have dismissed the claim against the church. Naegele v. Archdiocese of New York (April 10)

KINGS COUNTY

WORKERS COMPENSATION: The Appellate Division reversed two judges in one day for allowing injured workers to sue their employers in lieu of pursuing worker’s compensation claims.  Justice Lewis Douglass was reversed for allowing Gilbert Martinez to sue a hospital and medical corporation for his fall off a ladder while painting. The hospital and medical corporation proved that Martinez was their “special employee” who was covered by their worker’s compensation plan and therefore was precluded from suing. Martinez v. Fifty Two West Seventy Seventh Street Corp. (April 3)

Justice Sylvia Hinds-Radix was reversed for letting Joseph Beaucejour proceed with a suit against General Linen, which proved that it was Beaucejour’s employer. Beaucejour v. General Linen Supply & Laundry Co., Inc. (April 3)

DAMAGES: The Appellate Division slashed one damage award handed out by a county trial judge but boosted another. Justice Lawrence Knipel was responsible for the overly generous award of $1.8 to Charles Lodato, a worker who fell off a scaffold after receiving an electrical shock. The appellate panel tossed out the $1.1 million portion of the award for future lost earnings, citing Lodato’s failure to present tax returns, W-2 forms, or any other documentary proof of his income other than an inadmissible payroll record. Lodato v. Greyhawk North America, LLC  (April 3)

Justice Bruce Balter was too stingy with the damages that he awarded, based on the jury verdict, to Wladyslaw Brzozowy. He was 60 percent at fault for his injuries he sustained in an accident that wasn’t described in the appellate ruling, leaving him with $116,000 of the $290,000 total award. The Appellate Division declared that unless the defendant agrees to increase the award to $400,000, boosting Brzozowy’s share to $276,000, the award should be vacated and the case set for a new trial. Brzozowy v. Elrac, Inc.
 (April 3)

TORT: Justice Arthur Schack was reversed for allowing Emma Kuryla to add Daimler Chrysler Services as a defendant in her suit for injuries she sustained in an accident alleged caused by a car leased by the company. As the Appellate Division noted, a federal law enacted in 2005 bars suits that attempt to hold auto leasing companies vicariously liable for accidents caused by those leasing the vehicles, and Kuryla’s suit was filed after that law took effect. Kuryla v. Halabi  (April 3)

QUEENS COUNTY

UTILITIES: Justice Janice Taylor gave a Jehovah’s Witnesses church in Brooklyn a bigger break on city fees that it deserved. The city water and sewer departments had ruled that since the 100,000 square foot building had two residential units and two guest rooms, instead of just the single caretaker unit allowed in religious facilities that are exempt from water and sewer charges, the building was only partially exempt. Taylor decided that the entire building was exempt, and the church was entitled to a $12,980.08 refund for charges paid since the summer of 2002. The Appellate Division, concluding that the city agencies made the correct call, reversed Taylor and rescinded her gift to the church. Matter of Brooklyn Assembly Halls of Jehovah's Witnesses, Inc. v. Department of Environmental Protection of City of New York (April 3)

GUARDIANSHIP: Justice Charles Thomas cut short an inquiry into massive spending irregularities by a conservator in a guardianship proceeding. Lois Rosenblatt, Queen County’s public administrator, cast doubt on the propriety of nearly $900,000 worth of transactions by the conservator, Frank Russo, who appeared to dig himself deeper into a hole in his testimony in Thomas’s court. “The objections and the explanations offered by the conservator raised questions of fact on a number of material issues, including a business loan to the conservator, its alleged repayment, and the large number of cash disbursements, such that a hearing should have been conducted to resolve those issues,” the Appellate Division said. Far from conducting further inquiries, however, Thomas abruptly halted the proceeding, even though he “gave every indication” that he would continue it. In his unseemly rush to approve Russo’s final accounting, Thomas also failed to give Rosenblatt a chance to cross-examine Russo, even though she never waived her right to do so. The Appellate Division reversed Thomas ruling in the case, and sent it back to the same judge for reconsideration. Matter of Louis G.  (April 3)

GUARDIANSHIP: Justice Peter O'Donoghue was convinced that Surinder Tak ripped off a mentally incapacitated woman, identified as Lucille H., by buying a property from her for a preposterously low price, so the judge voided the contract. Trouble is, O’Donoghue didn’t bother asking Tak for an explanation first. The transaction certainly looked fishy. Lucille was admitted to a hospital due to her deteriorated mental state just a week after the sale. And the price was reportedly at least $100,000 less than market value for the parcel. But as the Appellate Division noted in reversing O’Donoghue, the judge’s “failure to name Tak as a party to the guardianship proceeding, and to provide notice that the issue of the validity of the contract for the sale of real property was to be an object of the proceeding, deprived Tak of notice and an opportunity to be heard.” Matter of Lucille H. v. Tak (April 3)

TORT: Justice James Dollard was reversed for dismissing a personal injury claim against In-Stride, a sneaker company that had recently been declared bankrupt. As the Appellate Division noted, even though the company’s debts were discharged in bankruptcy, plaintiff Jason Pomerantz, a child who was allegedly injured while wearing In-Stride sneakers, hoped to obtain a judgment or settlement so that he could proceed directly against the company's liability insurer, which is permitted even after a discharge in bankruptcy. Pomerantz v. In-Stride, Inc. (April 3)

DIVORCE: Seraphima Shagoury clearly despised her husband Stephen, and apparently, Justice Maryellen Fitzmaurice didn’t like him much either. In a proceeding in which Seraphima was suing for divorce on grounds that he had inflicted cruel and inhuman treatment on her, Judge Fitzmaurice “impermissibly and repeatedly precluded the husband from eliciting relevant testimony in his defense, as well as in support of the factual allegations contained in his counterclaim, and thereby deprived him of a fair trial,” the Appellate Division said. Though the evidence supported the judge’s conclusion that Seraphima was entitled to a divorce for the reasons she cited, Fitzmaurice’s injudicious treatment of the husband compelled the appellate panel to reverse her decision and send the case back to court for a new trial — before a different judge. Shagoury v. Shagoury (April 3)

DENTAL MALPRACTICE: Justice Arnold Price erred in dismissing Maria LaRocca’s dental malpractice suit on grounds that the statute of limitations had expired. LaRocca offered evidence that she received ongoing treatment from the dentist for the condition that gave rise to her malpractice claim. If that is true, her suit would be timely, said the Appellate Division, concluding that Price should have given LaRocca a chance to prove her case in court. LaRocca v. DeRicco (April 3)

BRONX COUNTY

LEGAL MALPRATICE: Justice Mark Friedlander thought Elba Aquino, who slipped on vomit in a casino, had a viable claim for legal malpractice against the lawyer who dropped the ball on the personal injury claim. He sent a demand letter to the casino threatening to sue, but never did sue before the statute of limitations expired. Friedlander denied the attorney’s motion to dismiss Aquino’s malpractice claim, but the Appellate Division reversed. Since Aquino couldn’t establish that the casino was aware of the vomit in time to clean it up before she slipped and fell in the mess, who cannot establish that she would have prevailed in a suit against the casino but for the attorney’s failure to file the lawsuit. So Friedlander should have dismissed the malpractice claim, the appellate panel said. Aquino v. Kuczinski, Vila & Assoc., P.C. (April 3)

VENUE: Justice Alexander W. Hunter “improvidently granted” the defendant’s motion to change the venue of Gladys Espinoza's personal injury from Bronx County to Queens County, even though Queens County is the site where the claim arose, where Espinoza resides and was treated for her injuries, and where the corporate defendant conduct its business. Espinoza v. Concordia International Forwarding Corp. (April 5)