All of the credible testimony presented in the nonjury trial, including that of a couple of firemen who ducked into the apartment a month before on an unrelated call, indicated that the odors “were not of the unavoidable variety, but of a type caused by matter that should not be kept in an apartment, such as rotting food,” the appellate judge said. To reject the complaint, Acosta “had to implicitly conclude that the stench noticed by the firefighters coincidentally happened to be present on the day of their visit and was a rare event. Such a conclusion strains credulity,” the Appellate Division concluded, reversing Acosta, entering the judgment of eviction, and overturning the award of fees. Zipper v. Haroldon Court Condominium (April 17)

Acosta was reversed in part in two other cases on the same day. One of the other reversals also came in a landlord tenant case, this one involving a lease littered with “irreconcilable ambiguities.” The landlord brought the suit against the commercial tenant for failing to abide by the terms of the lease, at least as the landlord chose to interpret it, after deleting a phrase that it called a scrivener’s error. Acosta properly dismissed part of the landlord’s claim on statute of limitations grounds. But he erred in summarily dismissing other causes of action. “The noted ambiguities are sufficient to require court intervention to determine the intent of the parties,” the appellate panel said. 1414 APF, LLC v. Deer Stags, Inc.  (April 17)

Acosta’s third reversal of the day came in a personal injury suit brought by Kenneth Parker, a worker injured by a forklift. Since there were unanswered questions about whether the company sued by Parker had properly serviced the forklift, Acosta correctly denied the company’s motion to dismiss the claim for negligent maintenance, repair, and inspection. But Parker’s claim for punitive damages offered no evidence of conduct demonstrating a high degree of moral turpitude and wanton dishonesty, so that claim should have been dismissed. Acosta also erred in calling for a hearing to determine whether Parker’s proposed expert witness was qualified to testify. No such hearing was necessary because the witness’s conclusions were not based on novel theories, the appellate panel said. Parker v. Crown Equipment Corp. (April 17)

OTHER NOTABLE REVERSALS

NEW YORK COUNTY

EMPLOYMENT: Houda Chawki, a tenured high school teacher fired for, among other things, excessive absences and lateness, apparently still hadn’t cleaned up her act when it came to challenging her dismissal. She had a right to request a three-member arbitration panel but failed to make the request within 10 days of receiving notice of the charges against her, as required. Justice Richard F. Braun, however, bought her excuse for missing the deadline, concluded that her right to request a three-person panel had been violated, and vacated the decision of a single arbitrator sustaining the misconduct charges against her. Chawki’s excuse? The copy of the law that was initially served upon her was illegible, but she made the request within 10 days of receiving a clean copy. The Appellate Division didn’t buy it. In the copy of the law that she initially received, the provision giving her the option of requesting a panel was plainly legible, so Braun should have held the tardy ex-teacher accountable for missing the deadline and should have affirmed the arbitrator’s ruling. Matter of Chawki v. New York City Department of Education, Manhattan High Schools, District 71 (April 17)

RENT CONTROL: Justice Barbara R. Kapnick upheld an illegal deal between a landlord and tenant that, according to the Appellate Division, should have been voided for “undermining the viability of the rent regulation system.” The tenant, Katherine Dalsimer, who occupied two rent-controlled apartments in the landlord’s building, agreed with the landlord that one of the units could be permanently deregulated in exchange for the landlord’s promise to never seek deregulation of the other. That sort of backroom deal circumventing the rent control law is “void as against public policy” and is therefore unenforceable, the appellate panel said. Georgia Properties Inc. v. Dalsimer (April 17)

INTERNATIONAL BANKING: Justice Helen E. Freedman didn’t think she had authority to stop a bank in New York from transferring assets located in another state to Indonesia. The Appellate Division, however, wasn’t troubled by the thought of a New York judge doing that. If New York authorities tried to attach property in another state, that would be breach of sovereignty, the appellate panel said. But a “turnover order merely directs a defendant, over whom the New York court has jurisdiction, to bring its own property into New York, and that would not offend another state's sovereignty,” the appellate panel said. Gryphon Domestic VI, LLC v. APP International Finance Co., B.V. (April 17)

CONTRACT: Joint Hearing Officer Ira Gammerman picked up a couple of reversal in contract cases. In one, he erroneously dismissed as untimely a claim against Verizon by a reseller of telephone services. A letter from Verizon, however, belied the phone company’s claim that the dispute between the parties occurred more than three years before the suit was filed, so in fact, the statute of limitations period had not run out. Community Network Service, Inc. v. Verizon New York, Inc. (April 12)

In the second case, Gammerman allowed a company that supplies towels to the city to sue for breach of contract over the city’s refusal to accept several shipments. The company can’t take its complaint to court because it hasn’t yet fully complied with the dispute resolution procedure outlined in the contract, the appellate panel said. Acme Supply Co., Ltd. v. City of New York (April 17)

FAMILY: Justice George L. Jurow granted a mother visitation rights with her children during all school vacations, but under the circumstances, he should have gone further and considered her request to switch custody to her, the Appellate Division said. There was evidence that the father was preventing the parties' child from seeing the mother, and he had moved with the child to a town three hours away. That conduct afforded a basis for the change of custody that the mother was seeking, said the appellate panel, remanding the case for a hearing. Matter of Zelodius C. v. Danny L.  (April 12)

PAROLE: Justice Marcy Friedman, accusing the Parole Board of changing its rationale for denying parole to William R. Phillips from one hearing to the next, ordered the board to reconsider his case and release him, if it couldn’t come up with a better excuse for keeping him behind bars. The Appellate Division reversed Friedman and let the board’s denial of parole stand. Phillips may well have been an exemplary inmate during his 32 years in prison. And it is quite true that he most likely no longer poses a threat to society. But those factors do not outweigh the nature of the crimes he committed as a police officer who murdered two people while providing protection to a prostitution ring, the appellate panel said. Matter of Phillips v. Dennison (April 12)

TORT: Justice Michael D. Stallman erred in entering a default judgment against Scott St. John for failing to answer a suit filed by David Stillman. St. John didn’t answer the suit because he never received the complaint and summons, which were served on his former address. To be sure, that was his fault since he failed to notify the Department of Motor Vehicles of his change of address. But that was a reasonable excuse for his failure to answer the suit, as far as the Appellate Division was concerned. Under the circumstances, Stallman’s default judgment was too harsh a sanction, particularly since St. John had a potentially meritorious defense, the appellate panel concluded, reinstating the suit. Stillman v. City of New York  (April 12)

TORT: In another case, Justice Stallman should have dismissed Giovanni Ragusa’s suit against the city. A water deliveryman who was injured by bottles that fell off a dolly as he was pushing it up a sidewalk, Ragusa claimed that the walkway was steeper than allowed by the building code. According to the Appellate Division, however, the city’s experts refuted that claim and in the absence of any other evidence that the sidewalk was defective, Stallman should have dismissed Ragusa’s complaint. Ragusa v. Lincoln Center for the Performing Arts, Inc. (April 12)

CIVIL PROCEDURE: Justice Robert D. Lippmann, who granted a default judgment in favor of a the transit authority in a suit filed by Clotilde Carrillo, should have accepted her lawyer’s excuse for failing to appear for a hearing, the Appellate Division said. The lawyer said a court clerk told him his appearance was not required. That was a reasonable excuse, said the Appellate Division, reinstating the claim that had been dismissed on a technicality and remanding it for a determination of the transit authority’s dismissal motion on the merits. Carrillo v. New York City Transit Authority  (April 12)

TORT: Justice Barbara R. Kapnick erred in denying a residential hotel’s motion to dismiss a suit filed against it by a pedestrian who was injured by an air conditioner that a tenant dropped out of a window. The hotel’s managers had nothing to do with the air conditioner nor did they have a duty to help the tenant remove it, the Appellate Division said, reversing Kapnick and dismissing the claim against the hotel. Grimaldi v. Manhattan Arms Hotel, Inc.  (April 12)

TORT: Justice Louis B. York erred in denying a building owner’s motion to dismiss a suit against it filed by a patron who was assaulted in a restaurant located in the building. The owner exercised no control whatsoever over either the restaurant or the conduct of its patrons, and therefore can’t be held liable for failing to take reasonable measures to secure the restaurant against foreseeable criminal activity, the Appellate Division said, reversing Kapnick and dismissing the claim. Urbano v. 710 Amsterdam Associates (April 12)

BRONX COUNTY

MALICIOUS PROSECUTION: When an insurance fraud case collapsed, Justice Janice L. Bowman wanted a State Police investigator and a pair of prosecutors to pay the price. She refused to dismiss claims for false arrest and malicious prosecution brought against them by the target of the fraud claim, earning a reversal for herself from the Appellate Division in the process. Even though the fraud charges were ultimately dismissed, there was probable cause to pursue the case, which was based on extensive investigation, including forensic tests. That constituted a complete defense against the malicious prosecution claim later brought against the chagrined investigators, the appellate panel said. Arzeno v. Mack (April 17)

MEDICAL MALPRACTICE: Justice Betty Owen Stinson dismissed Victoria Dallas-Stephenson’s malpractice claim against the doctor who was treating her when she got breast cancer. The Appellate Division reversed on grounds that there was conflicting testimony about whether the doctor referred her for surgery or not, raising credibility issues that can’t be sorted out in a summary judgment. Dallas-Stephenson v. Waisman  (April 12)

TORT: Danielle Virgil hit a tow truck parked near a disabled car, propelling it into Suzanne Guacci. As Justice Norma Ruiz saw it, the tow truck driver was at least partly to blame, as was the company that hired him. The Appellate Division thought otherwise and reversed Ruiz, dismissing the claim against the truck driver and his employer, on grounds that Virgil’s negligence was the sole proximate cause of Guacci’s injuries. Guacci v. Ogden Brothers Collision, Inc. (April 12)

KINGS COUNTY

TORT: Justice Arthur Schack allowed Tyron Duckette to sue his landlord for personal injuries that he blamed on the lack of a gate on a window that provided access to a fire escape. The trouble with that theory of liability is, the landlord had no legal duty to install a window gate, so Schack should have dismissed Duckette’s complaint, the Appellate Division said. Duckette v. Neighborhood Lenox Ave., LLC  (April 10)

TORT: Justice Sylvia Hinds-Radix went too easy on city lawyers for discovery violations in a personal injury suit brought by Patrick Maiorino. The city deserved to have its answer struck, paving the way for a default in Mariorino’s favor, the Appellate Division said, explaining that the city’s “willful and contumacious conduct can be inferred from its repeated failures to comply with court orders directing disclosure and the inadequate excuses offered to justify the defaults.” Maiorino v. City of New York (April 10)

TORT: Justice Mark Partnow, racking up yet another reversal, was too quick to blame the city for Steven Destefano’s fall from a ladder. There was evidence that instead of fully opening it, he carelessly propped the ladder against a mobile unit housing a boiler that he was replacing. Partnow should have set the case for trial to determine whether Destefano has only himself to blame for his injuries, the Appellate Divisions said. Destefano v. City of New York (April 10)

QUEENS COUNTY

FAMILY: Justice Esther Morgenstern clearly wasn’t the least bit impressed with the excuse offered by Virginia Perez for fleeing to Puerto Rico with her child and skipping out on a custody proceeding. The judge declared Perez in default, awarded custody of the child to the father, Tarik Bey, suspended his child support obligation, and, for good measure, issued a warrant for her arrest. The Appellate Division, lending the mother a more sympathetic ear, found her explanations for her behavior “reasonable.” She fled to Puerto Rico with her child to escape Bey’s alleged violence and threats, and she was unable to participate in the proceeding “due to severe financial constraints and the limitations of technology in the area where she was living.” Her allegations appeared to have merit, the appellate panel said, vacating the default judgment and asking Morgenstern to reconsider the case. Matter of Bey v. Perez (April 10)

REAL ESTATE: Justice Joseph Dorsa was snowed under by the blizzard of 16 affirmative defenses tossed out by Eugene Anninos, who was accused by Klio Plemmenou of notarizing a signature purporting to be hers on a power of attorney appointing her ex husband, Konstantinos Adamopoulos, as her attorney in fact.  Adamopoulos, she alleged, improperly used the power of attorney to convey her property to a third party. A bank caught in the middle commenced a third-party action against the notary, who responded with the barrage of defenses claiming, among other things, that the bank should indemnify him for the damage he would sustain if found liable for notarial misconduct. None of the defenses held water, according to the Appellate Division, which tossed them out and allowed the bank to proceed with its claim against Anninos. Plemmenou v. Arvanitakis (April 10)

TORT: The operations manager of a company that built a scaffold that collapsed on Keven McDonald assured Justice James Dollard that all of its scaffolds were properly built, so it couldn’t be blamed for McDonald’s injuries. That was enough to convince Dollard to dismiss the suit. But the manager’s platitudes didn’t pass muster with the Appellate Division. The testimony wasn’t sufficiently specific to explain how that the particular scaffold in question happened to collapse, the appellate panel said, reinstating the suit. McDonald also sued a business that had attached a sign to the section of scaffold that fell on him. Dorsa properly kicked that claim out of court, but for the wrong reason. Dorsa asserted that the statute of limitations had expired. That wasn’t the problem, according to the appellate panel. The claim failed because McDonald offered nothing but pure speculation to explain how the sign contributed to the accident. McDonald v. Sunstone Assoc. (April 10)

RICHMOND COUNTY

TORT: Justice Robert Gigante picked up three reversals in a day, in each case for allowing plaintiffs to proceed towards trial with claims that didn’t hold water.

In one case, Gigante refused to dismiss a suit brought by the family of a woman who fell in a hospital and later died, allegedly because hospital personnel failed to bring her a wheelchair fast enough. “The plaintiffs' contention that the decedent fell because she was weakened from the alleged long wait for a wheelchair is speculative,” the Appellate Division said, dismissing the suit. Rubin v. Staten Island University Hospital (April 10)

In another case, Gigante agreed with Nancy Grande that she suffered a tibial fracture of the leg, and that such an injury is “serious” as defined in the Insurance Law. The judge granted a summary judgment in her favor in her suit against Alfred Peteroy, the driver of the car that caused the injury. Trouble is, said the appellate panel, the defendants had no opportunity to examine Grande and see for themselves whether her leg really was fractured, and whether the injury was related to the accident. The appellate panel vacated the summary judgment and sent the case back to court for further proceedings. Grande v. Peteroy (April 10)

In the third case, Gigante struck the answer produced by Jeremiah H. Smith in response to a lawsuit filed by Laura Molinari on behalf of her child, who was injured on a trampoline at Smith’s house, paving the way for a default judgment in Molinari’s favor. Smith had disposed of the trampoline, which constituted spoliation of evidence, warranting the stiff sanction he imposed, Gigante said. The Appellate Division, however, noting that there was no indication that Smith willfully destroyed evidence, concluded that a lighter sanction was in order. Smith should be required to stipulate to the admission at trial of the manufacturer's assembly and safety instructions, and jurors should be given a negative inference charge, allowing them to speculate that had the trampoline been preserved, it would not have helped Smith’s side of the case. Molinari v. Smith
 
CONTRACT: Justice Joseph Maltese allowed South Shore Imaging to renege on a lease of a copier for a technical violation of a law that didn’t even apply under the circumstances. The lease was unenforceable, Maltese agreed, because its print was less than eight points in size. There is, in fact, a law requiring leases to have larger print than that. But the requirement applies only to consumer transactions and residential leases and South Shore Imaging is a corporate entity that leased medical equipment solely for business purposes, and not for personal or household use, the Appellate Division noted, reinstating the breach of contract claim by the company that leased the copier to South Shore Imaging and got stiffed. Key Equipment Finance, Inc. v. South Shore Imaging, Inc. (April 10)
     
MEDICAL MALPRACTICE: Justice Maltese should have dismissed Stephen J. Bumbaca’s medical malpractice lawsuit, said the Appellate Division. Bumbaca claimed that doctors should have noticed earlier than they did that his previously fractured leg was infected. But he failed to point to any symptoms that doctors should have recognized or any medical procedures that would have revealed the infection earlier, the appellate panel explained in dismissing the complaint. Bumbaca v. Bonanno (April 10)

TORT: Justice Philip Minardo gave Bernardo Acosta more leeway than he deserved under the circumstances, allowing him to file a late claim against the city. That might have been acceptable if the city had been aware that Acosta might have a claim. But a police accident report did not provide the city with actual notice of the essential facts underlying Acosta’s claim, and did not connect the accident to any negligence on the city’s part. So his delay of more than a year prejudiced the city's ability to maintain a defense, the Appellate Division said, and Minardo should have rejected his plea for a break. Matter of Acosta v. City of New York (April 10)