The case that generated the rulings by Victor and Bowman stemmed from a no-knock search warrant that came up empty, prompting the target of the search, Jennifer Espady, to sue the city. Victor granted, apparently in its entirety, Espady’s sweeping demand for documents and depositions of virtually everyone involved in obtaining the warrant and participating in the search. The Appellate Division severely curtailed Espady’s planned fishing expedition through law enforcement files.

Personnel and disciplinary records of police officers and prosecutors sought by Espady are protected under the Civil Rights Law, the appellate judges explained. The Bronx District Attorney’s Office is not under the control of the City of New York, so the city cannot be expected to produce documents or compel depositions of personnel from that office, they added. As for the deposition that Bowman had approved, Espady offered no good reason why she needed to know the identity or personally question the confidential informant. She and her lawyers, after all, will have an opportunity to examine the transcript of the proceedings before the court that found that the informant provided police with probable cause to conduct the search, and that’s all they need to know, the appellate panel said. Espady v. City of New York (May 24)

In the other ruling handed down the same day, People v. Conway, three of the four judges on the appellate panel stuck to their guns in overturning the assault conviction that Webber had imposed in 2001, despite a subsequent ruling from the Court of Appeals asking the Appellate Division to take another look at the facts of the case. The May 24 ruling drew a stinging dissent from Justice Milton Williams. The majority’s decision explains why police misconduct remains an “endemic problem” in the city, he said. “It is condoned in high places.”

In the same week, the Appellate Division’s Second Department reversed Kings County Justice Laura Jacobson for her ruling in a suit alleging misconduct by the police. Her error was refusing a plaintiff’s request that she examine the confidential informant who provided the police with basis for a no-knock search warrant. A weighing of the competing interests “tips the scales in favor of disclosure,” the appellate panel said. Jean v. City of New York (May 22)

OTHER NOTABLE REVERSALS

QUEENS COUNTY

FAMILY: The manner in which Justice Stephen Bogacz terminated a mother’s parental rights “contravened fundamental fairness,” according to the Appellate Division. The judge’s transgressions included “uneven application” of evidentiary rulings and “the inordinate amount of time it took to complete the fact-finding and dispositional hearings.” An inordinate amount of time, indeed. It took “over one year to begin a fact-finding hearing, four years to complete the fact-finding hearing, and another nine months for a disposition,” the appellate panel noted. That’s not exactly what the Legislature had in mind when it enacted the Social Services Law provision establishing “a timely procedure for terminating parental rights to avoid unnecessarily depriving children of the benefits of positive and nurturing family relationships,” the appellate panel observed in tossing out Bogacz’s belated decision and remanding the case for new fact-finding and dispositional hearings “before a different judge.” A decision about what’s best for the child should be made “with all convenient speed,” the appellate panel said. Matter of Dustin H. v. Raymond H.  (May 22)

NEW YORK COUNTY

TORT:  Justice Milton A. Tingling is back to his old habit of letting hapless bystanders get dragged into traffic-accident lawsuits. In the latest case, Tingling allowed David McNeal to proceed with a suit against Anthony Leggieri, despite the fact that the record is “bereft of legally credible evidence” that Leggieri was anything other than a witness to the accident, said the Appellate Division, reversing Tingling and dismissing the complaint. McNeal v. Leggieri (May 29)

Justice Tingling rewarded another plaintiff in a traffic-accident suit with an undeserved summary judgment on a technicality that the judge should have excused. The defendant, a car rental company, submitted an affidavit from a witness casting doubt on plaintiff Richard Moccia’s story that he was entirely without fault, but Tingling rejected the document on grounds that it didn’t have an original notary seal. The defendants' attorney promptly corrected the problem by submitting the original copy of the affidavit from the out-of-state witness. With the question of Moccia’s comparative negligence now properly at play in the litigation, he was not entitled to summary judgment, the Appellate Division said. Moccia v. Carrier Car Rental, Inc. (May 29)

EMPLOYMENT: Justice Herman Cahn gave an interpretation to an employment agreement that stained the Appellate Division’s credulity. Cahn ruled that Charles F. Hazzard, Jr.’s right to severance pay followed him to the grave. The only reasonable interpretation of the severance clause in the employee’s employee’s contract, the appellate panel countered, is that he was entitled to a severance payment only in the event he was alive and his employer terminated him for any reason other than for cause. Those conditions weren’t met, since he is now deceased, so Cahn should have dismissed the estate’s breach of contract claim, the appeals court said. McClean v. Vera Wang Bridal House, Ltd. (May 29)


INSURANCE: For the second time in May, Justice Richard B. Lowe III was flagged by the Appellate Division for letting an insurance company run roughshod over an opposing litigant’s attorney-client privilege. It happened on May 15  and again on May 29, in American Re-Insurance Co. v. United States Fidelity & Guaranty Company. Lowe approved a referee’s order requiring an insurance company to produce documents and answer its reinsurers’ questions about a settlement and bill preparation in an asbestos claims case. According to the Appellate Division, the reinsurers' claim of a “substantial need” for the disclosure provided no basis for invading the insurance company’s attorney-client and work product privileges, so Lowe should have vacated the discovery order, at least in part.

SENTENCING: Four judges who had hewed to an overly liberal interpretation of the Drug Law Reform Act of 2004 were officially reversed in a single ruling, People v. Rodriguez, handed down May 29, covering six different cases. The judges, James A. Yates, John Cataldo, Charles J. Tejada and William A. Wetzel, had previously ruled that the more lenient sentences afforded by the law could be applied retroactively to crimes committed before January 13, 2005, the day the law took effect. The state Court of Appeals said otherwise in a ruling last September. Applying that ruling to these six cases involving drug-related offenses committed before that date, the Appellate Division vacated the lenient sentences and remanded four of the cases for resentencing while allowing the other two defendants to withdraw their guilty pleas and start over.

ZONING: Justice Michael D. Stallman slapped a developer with what the Appellate Division described as an impermissible “administrative anticipatory punishment.” He upheld the Department of Buildings' denial of a permit for a proposed 19-story residential building on a lot between East 9th and 10th Streets in Manhattan on grounds that the structure might turn out to be in violation of a restriction on the deed for the lot, which the developer purchased from the city in an auction. The zoning restriction requires that the property be used for a “community facility.” The developer insisted that once finished, the building would be leased to a non-profit group dedicated to providing dormitory accommodations to students and teachers, a qualifying community use. But the developer had no lease in hand. Its intentions weren’t good enough for the Department of Buildings, nor for Stallman, nor for a sole dissenter on the Appellate Division. The four-judge majority on the appellate panel, however, said the developer couldn’t be punished because it might one day break its vow to comply with the deed restriction. If that day comes to pass, the department can employ other remedies, including denial or revocation of a certificate of occupancy. Matter of 9th & 10th Street L.L.C. v. Board of Standards and Appeals of the City of New York (May 29)

TRUSTS & ESTATES: Peter Salerno, Jr. and Amy McFarland, his stepdaughter from a prior marriage, were in a bind and they trusted Justice Walter B. Tolub to help them get out of it, waiving a jury and putting their case in his hands. Salerno had convinced McFarland to transfer a valuable apartment she owned to him, explaining that it would be held in an irrevocable trust for her future benefit as his heir. The trouble is, based on his admitted misunderstanding of legal terminology, the apartment was assigned to a corporate entity that was part of his will, which integrated his estate with that of his new wife. Since the assignment was in writing, duly signed by McFarland, Tolub saw no reason to let the hapless pair back out of the deal. A unanimous panel of the Appellate Division, however, noting that McFarland had been duped into making the assignment by Salerno’s misrepresentation, concluded that Tolub should have rescinded the transfer of the apartment. McFarland v. Salerno (May 29)

INSURANCE: Justice Louis B. York approved an insurance policyholder’s demand for a truckload of irrelevant documents in a breach of contract suit stemming from the insurer’s denial of coverage for damage to a building at 40 Rector Street. The plaintiff blamed damage to the façade on the collapse of the World Trade Center towers, while the insurer insisted it was a pre-existing condition caused by earth movement. The documents and depositions that the plaintiffs convinced York they needed, including years’ worth of paperwork related to incentive compensation plans and performance reviews for three of the insurer’s employees, had nothing at all to do with the coverage dispute, said the Appellate Division, so York should have rejected most of the policyholder’s discovery demands. 40 Rector Holdings, LLC v. Travelers Indemnity Co. (May 24)

TORT: Justice Doris Ling-Cohan erred in allowing Ourania Soumas to proceed to trial with a suit blaming Con Edison for her fall in a crosswalk. The plaintiff's expert asserted that “ongoing work” at the crosswalk produced the gravel that tripped her up. In fact, Con Edison had dug a trench near the crosswalk to install a phone kiosk, but its workers had completed the job four months before the accident, so Ling-Cohan should have let the company off the hook, the Appellate Division said. Soumas v. Consolidated Edison (May 24)

JUVENILE: Justice Susan R. Larabee determined that Tyrone P. is juvenile delinquent and sentenced him to probation based on evidence that, according to the Appellate Division, fell short of proof beyond a reasonable doubt. Eyewitnesses said the 14-year-old was among a group of youths, some of whom had just beated up a jogger in Central Park and stole his Ipod. But when asked whether they saw Tyrone participate in the attack, the witnesses couldn’t say for sure. It might be inferred from his presence at the scene immediately after the attack that he may have been one of the perpetrators, the appellate judges said. But the evidence wasn’t sufficient to support the delinquency adjudication, they concluded. Matter of Tyrone P. (May 24)

BRONX COUNTY

TORT: Justice Stanley Green was rapped by the Appellate Division in early May for letting the Housing Authority sandbag a plaintiff. He picked up another reversal at the end of the month for letting a plaintiff pull a similar trick on a defendant. Green refused to let the defendant’s vocational rehabilitation expert examine the plaintiff, David Diaz, on grounds that the defendant’s request to do so was too late. However, the plaintiff’s lawyer had waited until the last minute, after the note of issue was filed, to serve the report of his own vocational rehabilitation expert, which chastised the defendant's expert for failing to conduct his own examination of Diaz. Allowing the defendant’s expert to belatedly conduct an examination wouldn’t have delayed the trial because Green had reopened discovery and postponed the trial date when the plaintiff served a supplemental bill of particulars on the day the trial was to have started. So Green should have granted the defendant’s request, the Appellate Division said. Diaz v. Elrac, Inc. (May 29)

TORT: Justice Lucy Billings fell for a flimsy excuse offered by a plaintiff who claimed he was injured in a housing authority building but misidentified the location of the alleged accident. Dineil Taylor blamed the error in his notice of claim on pain medication he was taking at the time, but he produced no medical evidence to back up his story. He also failed to explain why he repeated the error at a subsequent hearing and in his deposition. Taylor’s inability to correctly state where the alleged accident occurred prevented the housing authority from conducting a timely investigation. For the reason, said the Appellate Division, Billings should have denied Taylor’s motion to amend his complaint and should have granted the housing authority’s motion to dismiss the suit. Taylor v. New York City Housing Authority (May 24)

NO-FAULT INSURANCE LAW: Justice George D. Salerno should have dismissed Marcos A. Parreno’s “serious injury” claim, said the Appellate Division, notwithstanding a jury’s $100,000 verdict in the plaintiff’s favor, and fair amount of objective evidence that his back had problems, including a herniated disk. Parreno and the doctors in his camp blamed his back problems on an accident in which his car was rear-ended by a truck. In the face of findings from the defendant’s medical experts that Parreno suffered no lingering effects from the accident, the evidence of back problems was insufficient to establish serious injury, “in the absence of objective medical evidence showing the extent or degree of the limitations resulting from these specific injuries and their duration,” the appellate panel concluded, reversing Salerno and vacated the damage award. Parreno v. Jumbo Trucking, Inc. (May 29)

TORT: Justice Norma Ruiz erred in allowing a worker to proceed with a claim against a building owner for alleged injuries caused by scalding water that spewed from a pipe that suddenly burst. The accident apparently occurred because a hose cock in the pipe in an 18-foot ceiling had rusted. Since the defect was not discoverable through reasonable inspection, the Appellate Division concluded that the complaint against the owner should have been dismissed. Hayes v. Riverbend Housing Co., Inc. (May 29)

KINGS COUNTY

TORT: Oft-reversed Justice Mark Partnow had picked up just one reversal in May, after racking up 10 in the first four months of the year. But his relative respite from appellate rebukes ended on May 22 when Partnow was reversed twice. Typically, he erred in both cases, in the Appellate Division’s view, for giving plaintiffs too much leeway. He should have dismissed Denell Miguel’s claim because she couldn’t decide whether it was a wet floor or a misaligned mat in the vestibule of her building that cause her to slip and fall. Miguel v. SJS Assoc., LLC.

Partnow should have stopped Zulma Espinosa’s attempted end run around the no-fault insurance law because her claim that she suffered a “serious injury” in an accident wasn’t supported by the evidence. “The mere existence of a bulging disc is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the disc injury and its duration,” the Appellate Division explained. Espinosa v. Melendez (May 22)

VENUE: Justice David Schmidt rolled over for a defendant’s request to change the venue for a breach of contract and defamation case from Kings County to Nassau County. A nonparty witness evidently preferred a Nassau County setting for the suit, but as the Appellate Division noted, a litigant needs a better reason than mere convenience to move a case from the county where the dispute arose. In this case, the defendant gave no indication of the nature and materiality of the witness’s anticipated testimony, nor for that matter, whether she was even willing to testify. So there was no basis for Schmidt’s decision to change venue, the Appellate Division said. Frankel v. Stavsky (May 22)

FRAUD: Justice Schmidt picked up a second reversal on the same day for letting a car dealer get away with a procedural error. The defendants did not include a complete set of the pleadings in support of their motion for summary judgment, as required by law, and therefore, they were not entitled to the summary judgment that Schmidt granted, the Appellate Divisions said. Thompson v. Foreign Cars Center Inc.  (May 22)

TORT: Justice Ira Harkavy erred in summarily dismissing Melissa Gordon’s personal injury suit stemming from a collision in an intersection. There was conflicting evidence about whether the defendant, Benzion Honig, heeded a stop sign and whether he should have seen Gordon coming. For that reason, Gordon should have been allowed to proceed with her lawsuit, the Appellate Division said. Gordon v. Honig (May 22)

TORT: For more than four years, Jose Perez pursued a claim in which he alleged that the company that leased a trailer to him was negligent in maintaining a window that shattered in his hand. After discovery was completed and the defendant filed a motion to dismiss, Perez suddenly decided that in fact, it was a design defect that caused the window to shatter, injuring him. Justice Wayne Saitta let Perez get away with the belated, dramatic change in his theory of liability, earning himself a reversal from the Appellate Division, which granted the defendant's motion to dismiss the suit. Perez v. Cassone Leasing, Inc. (May 22)

TORT: Justice Arthur Schack erred in allowing Robert Phillips, who was hit by a truck while riding on his bike, to pursue a claim against an insurance company, which proved that its policy with the truck driver expired five months before the accident. Phillips v. Solano (May 22)

TORT: Justice David Vaughan should have dismissed a police officer’s slip-and-fall claim against the company that had a contract to maintain pipes in a Housing Authority building. There was no evidence that the company was responsible for water on the stairs that allegedly caused the accident, and the company did not assume a “comprehensive and exclusive maintenance obligation” under its contract, the Appellate Division explained. Torchio v. New York City Housing Authority (May 22)