A Daily News story heaped praise on the judge for “slamming cop-haters” while an article in the Amsterdam News rued the selection of the “pro-police” “loose cannon” to preside over the potentially explosive trial.

In the case in which Cooperman picked up his most recent reversal, Tony Bennett was on trial for murder in a case with no eyewitnesses. The most damning evidence against him was the dying declaration of the victim of the crime, who reportedly told bystanders that Bennett did it. A key question in the trial concerned who would be called to the stand to tell jurors what the victim said before he expired.

Prior to trial, Stuart insisted he would not call a certain unnamed witness to testify about the victim’s dying declaration, leading the defense to believe that only police officers would be called to talk about that. With that in mind, the defense attorney built her case around the notion that there were other witnesses but the prosecution was not going to call them to the stand to say whether the officer’s were telling the truth or not.

After the attorney had hammered away at that ostensible weakness in the case, Stuart sprung his ambush, dramatically announcing that he would call another witness after all. The defense attorney strenuously objected to the late disclosure, but Cooperman let Stuart proceed. After a lunch break, the witness, Rickey Davis, took the stand and told jurors that before police arrived, the victim had fingered “Tony” as the shooter.

The defense attorney asked Cooperman to at least instruct the jury about the prosecution’s underhanded tactic. In response, as the Appellate Division put it, Cooperman “merely explained to the jury that the witness list contained the names of possible witnesses and that Rickey Davis's name was not on that list.”

While Cooperman left the defense attorney twisting in the wind, Stuart moved in for the coup de grace. He gleefully told jurors in his closing argument, “You remember that she told you in her opening that the People will not produce any civilian witness in this case. We did.”

Cooperman’s failure to rein in Stuart was reversible error, a unanimous appellate panel ruled. “We agree with the defendant that the prosecutor deprived him of a fair trial by his deception regarding his intention to call Rickey Davis as a witness . . . by his last-minute presentation of Davis's testimony regarding the victim's excited utterance when the police had not yet arrived and the victim's statement to the police as well, and by his capitalizing on these unfair tactics in summation,” the Appellate Division declared. “Because the instances of prosecutorial misconduct were flagrant and the evidence of guilt was not overwhelming, we reverse the conviction and order a new trial.” People v. Bennett  (May 1)

Cooperman’s other recent errors that were set straight by the Appellate Division came in People v. Richmond (January 16), People v. LaPetina (November 28) and People v. Jaquez (November 14).

OTHER NOTABLE REVERSALS

QUEENS COUNTY

TRUSTS: Justice William Glover gave a lawyer named Edward McGowan, Jr., the benefit of the doubt which, according to the Appellate Division, the lawyer didn’t deserve. McGowan was sued for fraud and breach of fiduciary duty by Lorna and Paula Heaven, the beneficiaries of a trust that McGowan represented. They claimed he agreed to refinance the mortgage on a $200,000 home owned by the trust. Instead, he sold it for $92,000 to another trust that he created and controlled, which in turn, leased it back to the Heavens for an amount that was greater than the mortgage they were paying. Glover didn’t have a problem with that and summarily dismissed the complaint. The Heavens, after all, had signed a deed transferring title to the house, which was proof enough for the judge that they must have known they were selling it, not just refinancing the mortgage. The Appellate Division, which reinstated the complaint, said Glover should have looked a little more closely at McGowan’s own statements about the transaction. He claimed that the term “refinance” is often used by real estate pros to describe the sort of sale-leaseback that he arranged for the Heavens’ trust. That suggested to the appellate judges that the wily lawyer may have played a semantic game to dupe the sisters into signing documents thinking they were doing a different sort of “refinance” than what he had in mind. A trial is needed to get to the bottom of the matter, the appellate panel concluded, reversing Glover and reinstating the complaint. Heaven v. McGowan (May 1)

TORT: Justice Phyllis Flug apparently thinks an argument can be made that 40 kids on a school-sponsored hayride accompanied by 12 adult chaperons were undersupervised. The judge allowed Elizabeth David to proceed with a suit against the school blaming lack of supervision for the fact that she cut her eyelid when the wagon hit a bump, tossing the girl onto the floor of the wagon. Given that one of the adults was sitting beside the girl and another was sitting in front of her, what more could the school have possibly done to avert the unfortunate accident, the Appellate Division wondered, reversing Flug and dismissing the complaint. David v. City of New York (May 1)

FAMILY: Referee Jane McGrady erred in dismissing Norbert Erlec’s child custody petition on grounds that he has no standing to proceed in the matter regarding a child born out of wedlock. In fact, said the Appellate Division, Erlec signed a sworn statement at the hospital three days after the child’s birth formally acknowledging paternity, the child bears his surname, and the mother, Margaret Johnson, has acknowledged that he is the child's father, most recently in a proceeding in Illinois in which she is seeking child support from him. Under the circumstances, Erlec most certainly does have standing to prosecute the custody proceeding, unless and until paternity is successfully challenged by Johnson, the Appellate Division said. Matter of Erlec v. Johnson (May 1)

REAL ESTATE: Justice Golia (whether James or Joseph, the Appellate Division did not say) was reversed for granting summary judgment to a condominium board in an action to foreclose on liens for nonpayment of common charges. The board never presented records explaining how it calculated the amount of the alleged outstanding balance, the appellate judges explained. Board of Managers of National Plaza Condominium I v. Astoria Plaza, LLC (May 1)

NEW YORK COUNTY

NOT-FOR-PROFIT LAW: While Justice Charles E. Ramos was willing to give then-Attorney General Eliot Spitzer a green light on all six causes of action in his suit challenging former New York Stock Exchange Chairman Richard Grasso’s compensation package, a sharply divided panel of the Appellate Division tossed out four of the six claims. The three-judge majority noted that since those four causes of action, including the claim that Grasso’s compensation was “against public policy,” are not mentioned in the Not-for-Profit-Corporation Law or any other statute, the attorney general had no legal authority to assert those claims. On the other hand, two other causes of action -- for knowingly accepting an unlawful transfer of assets and breaching a fiduciary duty to the stock exchange – are mentioned in statutes so Ramos properly let Spitzer proceed on those claims. In a lengthy dissent, two judges on the appellate panel agreed with Ramos that the attorney general’s office has broad authority to protect the state from the harm that would ensue if the public came to believe that the stock exchange is controlled by managers who are interested above all in feathering their own nests. People of the State of New York, by Eliot Spitzer, the Attorney General of the State of New York v. Grasso (May 8)

DISCOVERY VIOLATIONS: The Appellate Division has called a couple of judges onto the carpet for harshly punishing litigants for their lawyers’ errors.

Justice Carol R. Edmead dismissed the complaint brought by a corporate plaintiff for its counsel’s failure to comply with discovery orders. The appellate panel -- noting that the plaintiff’s attorney dropped the ball due to anxiety attacks stemming from a diagnosed mental illness and the defendant wasn’t harmed by the delay -- reinstated the complaint. 219 E. 7th Street Housing Development Fund Corp. v. 324 E. 8th Street Housing Development Fund Corp. (May 8)

Justice Jane S. Solomon, who has been reversed twice before in the last six months for punishing litigants too harshly for missing deadlines, did it again when she dismissed Maria Alveranga-Duran’s claim as punishment for her lawyer’s error. It was undisputed that the lawyer repeatedly failed to conduct the defendant's deposition and committed other discovery violations. But Solomon’s dismissal of the complaint was too drastic a sanction, given that the attorney was never warned that continued noncompliance would result in dismissal and Alveranga-Duran apparently bore no responsibility for her counsel's malfeasance. The Appellate Division reinstated the complaint and instructed Solomon to come up with a more appropriate punishment targeting the guilty party — the lawyer. Alveranga-Duran v. New Whitehall Apartments L.L.C. (May 8)  

INDEMNIFICATION: Justice Emily Jane Goodman wouldn’t let the Dollar Tree Stores pass the buck to the Chinese distributor of an allegedly defective toy, though the law allows retailers to do exactly that, the Appellate Division said. Goodman denied the retailer’s claim for indemnification against Mainkey Toys, which sold Dollar Tree 300,000 units of the toy that injured Ronald Lowe III. An appellate panel reversed Goodman, citing prior rulings which have held that a party lower in the chain of distribution is entitled to indemnification from the party highest in the chain. The company highest on the chain, after all, has a closer relationship with the manufacturer, in this case another company in China, and is better able to exert pressure to improve product safety. Lowe v. Dollar Tree Stores, Inc. (May 3)

TORT: A trainer at the Peninsula Spa told Harlan Debell that time on the “hang bar” would make his hurting back, neck and shoulder feel better. Not! Debell followed the advice and ended up with a torn rotator cuff and herniated disc. Justice Sherry Klein Heitler dismissed the ensuing lawsuit on grounds that Debell had signed a release. Although a provision in the General Obligations Law declares many releases to be void as against public policy, that law doesn’t apply to releases covering educational activities, and since Debell was injured during a training session at the spa, the release was enforceable, Heitler asserted. The Appellate Division disagreed. Whatever the nature of the particular activity that injured Debell, the spa’s purpose is recreational, not educational, so the spa can’t use releases to get itself off the hook for its trainers’ negligence. Debell v. Wellbridge Club Management, Inc. (May 3)

CONTRACT: Hertz leased a parking garage fully aware that, as a company official acknowledged in an internal email, it had clearly visible “structural, water intrusion and maintenance issues.” Nonetheless, in the ensuing litigation over who should pay for structural repairs, Justice Walter B. Tolub allowed Hertz to pursue a cross-claim against the landlord for “fraud in the inducement.” The Appellate Division reversed Tolub and dismissed Hertz’s fraud counterclaim. The rental car company knew it should have had a structural engineer take a closer look at the obvious problems with the garage and can’t expect the courts to rescue it from its own lack of due diligence, the appellate judges explained. Peach Parking Corp. v. 346 West 40th Street, LLC (May 3)

TORT: Justice Donna G. Recant should have dismissed a suit against the school board for an attack on teacher Marsha France by an enraged parent, the Appellate Division said. A school safety agent had intervened and thought he ended an altercation between France and the parent. But seconds later, as the teacher headed back to her classroom, the parent attacked again. Since there were no indications that the security officer was aware that the parent continued to pose a threat of violence, or failed to take action that could have prevented the assault, the school wasn’t liable for the attack, the appellate judges said, reversing Recant for denying the board’s motion to dismiss the suit. France v. New York City Board of Education (May 3)

INSURANCE: Justice Harold B. Beeler managed to overlook an unambiguous provision in a life insurance policy. The Survivorship Policy at issue clearly required the written consent of all of the named owners before any transfer of ownership could take place, but Beeler approved a transfer based on the purported request on just one owner. The Appellate Division invalidated the transfer and granted the declaratory relief that Beeler had denied, restoring the original owners and beneficiaries. New York Life Insurance Co. v. Lowy (May 8)

BRONX COUNTY

TORT: Justice Alexander W. Hunter, Jr., approved a jury’s award of $790,000 to medical assistant Vanessa Sims as compensation for her fear that she might contract HIV after getting pricked by a needle that she had used to draw blood from an HIV-positive patient. Hunter’s judgment, based on evidence that the clinic where Sims work was negligent about training her in how to handle such hazardous waste, touched off a battle royale among the five judges on the Appellate Division over whether the full amount of the award was warranted or not. The three-judge majority on the appellate court reduced part of the award attributable to the plaintiff’s trauma during the first six months after the incident by nearly $250,000 on grounds that the jury’s award was unreasonably high. The majority proceeded to vacate the entire sum of $75,000 attributable to Sims’s trauma that she said she continued to endure even after six months of negative test results seemed to indicate that she was in the clear. It was that latter part of the appellate ruling that gave two dissenting judges a fit. The majority cited prior rulings which have declared that the chance of getting HIV are slim to none once the first six months after exposure have passed with no sign of infection. The dissenters blasted the majority’s “slavish adherence” to a “six-month rule should be discarded as meaningless.” First, it’s not true that all chance of infection has passed at the six months mark, the two judges in the minority said. Morever, Sims had a legitimate claim for permanent psychological harm in the form of post- traumatic stress disorder even after she was, medically speaking, in the clear, insisted the dissenters, who would have confirmed Hunter’s judgment in full. Sims v. Comprehensive Community Development Corp. (May 3)

TORT: Justice Hunter accepted the inadequate excuse offered by Rosario Arias for filing a late notice of claim against the housing authority for the injuries he allegedly sustained when he tripped on the decorative border around a tree well after getting off a bus. His lawyer filed a timely notice of claim against the transit authority but evidently didn’t realize until seven months later that the housing authority was responsible for the fixture that tripped up Arias. Ignorance wasn’t a good enough excuse for the Appellate Division, particularly since the long delay made it hard for the housing authority to investigate the alleged defect and identify witnesses. The appellate panel reversed Hunter and dismissed the suit. Arias v. New York City Housing Authority (May 8)

JUVENILE: Justice Alma Cordova, apparently satisfied that unmodified kitchen knives are dangerous weapons, declared a juvenile named Niazia F. a delinquent for possessing a pair of the utensils. Without more information about how the knives were being used, the Appellate Division was unwilling to join Cordova in concluding that they were dangerous. In the absence of such a showing, the delinquency petition was insufficient to support Cordova’s determination, which must be reversed, the appellate judges ruled. Matter of Niazia F. (May 8)

In another ruling released on the same day, the Appellate Division cleaned up another of Cordova’s cases. There was sufficient evidence in support of her determination that Johanny M. was a juvenile delinquent for committing a first-degree gang assault. But the additional counts for second-degree gang assault and second-degree assault should have been dismissed as lesser included offenses. Matter of Johanny M. (May 8)

JUVENILE: Justice Sidney Gribetz erred in concluding that Niazia F. committed a robbery. The juvenile was clearly guilty of assault and possession of stolen property, and those offenses supported Gribetz determination that he is a delinquent. But the finding of robbery was based on insufficient evidence. The testimony established that the victim’s cell phone was knocked out of his hand during the course of the fight and Niazia picked it up and walked away with it as an afterthought. Thus, that count should be vacated and the period of placement reduced from 18 to 12 months, the appellate panel concluded. Matter of Niazia F. (May 8)

LANDLORD TENANT: Justice Douglas E. McKeon should have dismissed a claim filed against the landlord by David Vasquez, an employee of the tenant, who was injured while pushing heavy equipment up an allegedly defective loading ramp. The ramp wasn’t defectively designed and the landlord was under no contractual obligation to repair or maintain the premises, so the landlord can’t be blamed for the mishap, the Appellate Division said. Vasquez v. The Rector (May 3)

TORT: Justice Patricia Anne Williams was reversed for a ruling that would have stuck the city with the entire tab for an accident that injured a taxi passenger, even though a jury found the city fire department only 20 percent at fault. The passenger, Richard Towers, was injured when the taxi entered an intersection into the path of an oncoming fire truck. Under a municipal law, in most cases the city is liable only for its equitable share of damages in any case in which the city is less than 50 percent at fault. Since a fire truck is not a “vehicle” as defined in municipal law, and its driver was not negligent, none of the exceptions to the municipal law apply in this case. Thus, the city can be forced to pay only 20 percent of the $1.9 million verdict awarded to Towers, the Appellate Division said. Towers v. Hoag
 (May 3)

KINGS COUNTY

TORT: Justice Martin M. Solomon gave the plaintiffs who sued Lets Care Daycare Center far more leeway than they deserved when he dismissed a default judgment that had been entered against them. The Appellate Division reversed Solomon and let the default stand. “Here, the plaintiffs' attorney's failure to respond to the demand for a bill of particulars, to timely comply with the preliminary conference order, and to oppose the appellants' motion to dismiss the complaint, and his further one-year delay in moving to vacate the order, constituted a pattern of willful default and neglect that cannot be excused,” the appellate panel explained. Glanville v. Lets Care Again Daycare, Inc. (May 1)

TORT: Justice Leon Ruchelsman erred in allowing Zhanna Golub to proceed with a suit against the transit authority for injuries she allegedly sustained when she fell out of her seat on a bus. A passenger may sue in such cases only if the bus made an “unusual and violent” lurch, the Appellate Division pointed out. The fact that none of other passengers, seated or standing, took a tumble proves that there was nothing either unusual or violent about the movement of the bus, the appellate judges concluded, reversing Ruchelsman and dismissing the complaint. Golub v. New York City Transit Authority (May 1)

INSURANCE: Justice Ira Harkavy denied the plaintiff’s petition to compel arbitration. He should have granted the petition because the insurer didn’t move to stay arbitration within the 20-day time limit, the Appellate Division said. Matter of Lejbik v. Allstate Indemnity Co. (May 1)

RICHMOND COUNTY

DENTAL MALPRACTICE: Justice Philip Minardo approved an excessive jury award of $300,000 to Sharon Clarke for past pain and suffering due to a botched root canal. The Appellate Division said $125,000 was a more reasonable sum. Clarke v. Limone (May 1)