In one of the cases, Price dismissed Angelica Francovig’s “serious injury” claim on grounds that she failed to adequately explain a four-year gap in her treatment. To the contrary, said the Appellate Division, Francovig plausibly explained that she stopped treatment because no-fault insurance was cut off and she could not afford to pay out of pocket for any further treatments for her injuries, which had been well documents since shortly after the accident Francovig v. Senekis Cab Corp. (June 19)

In the other case, Price erroneously dismissed Khwaja Yaser’s “serious injury” claim on the strength of the defendant’s expert testimony — testimony that the Appellate Division found to be riddled with holes. A neurologist retained by the defense asserted that Yaser had full range of motion in her spine, but he never examined Yaser’s right shoulder, which was also alleged to have been seriously injured as a result of the accident.

The defendant’s experts didn’t have anything at all to say about another category of “serious injury” that Yaser claimed to have endured. The accident caused her to miss more than three months of work immediately following the accident, she said. The defendant failed to overcome Yaser’s claim on the motion for summary judgment, which, in the appellate panel’s view, Price should have denied. Staubitz v. Yaser (June 19)

OTHER NOTABLE REVERSALS

BRONX COUNTY

FAMILY: Justice Alma Cordova was rapped by the Appellate Division for callously brushing off a father in the Bronx who was trying to modify a New York child custody decision after the mother of his children moved to North Carolina with his kids in tow. Cordova insisted that she had no jurisdiction, never mind his allegations that the kids had been taken to a strange religious commune where they were subjected to excessive corporal punishment, and that the North Carolina courts had declined to review the New York custody order. In ducking the case, Cordova failed to properly apply the law that governs jurisdiction in custody cases, the Appellate Division said. Under the law, New York courts clearly still have jurisdiction over the custody order in this case. The children had resided outside the state less than six months when the petition was initially filed, they retained substantial connections with New York, and significant evidence is present in this state, said the appellate panel, sending the case back to court in the Bronx — just not to Cordova. “In light of the particular and unusual circumstances of this matter, the case on remand should be heard by a different Family Court judge,” the appellate panel said. Matter of Blerim M. v. Racquel M. (June 26)

TORT: Justice Yvonne Gonzalez was too quick to dismiss Carmen Bido’s slip and fall suit against her landlord. Bido said she slipped when she stepped into an oily substance while tiptoeing over trash in a stairwell. Gonzalez rejected the complaint because Bido couldn’t prove that the landlord knew about and had to time clean up the refuse that tripped her up. The Appellate Division reinstated the complaint on grounds that some of the evidence marshaled by Bido suggested that debris in the stairwell was a recurring problem that the landlord routinely ignored, in which case it wouldn’t be necessary to prove that the landlord had notice of the specific hazard that caused her injury. Bido v. 876-882 Realty, LLC  (June 26)

INSURANCE LAW: Justice Sallie Manzanet vacated default judgments against several plaintiffs who, according to the Appellate Division, had no reasonable excuse for waiting more than two years to ask for relief from the default, and a case with little or no apparent merit. In support of their claim that they suffered a “serious injury,” the plaintiffs presented no medical reports from around the time of the accident. About all they had were reports from Dr. Hausknecht, a specialist at finding accident-related injuries years after the fact and a prolific medical expert witness whose cases have been repeatedly reversed by the Appellate Division. Reversing Manzanet and rebuffing another of Hausknecht’s patients, the appellate panel reinstated the default judgment against the plaintiffs. Vargas v. Ahmed (June 26)

VENUE: Justice Douglas E. McKeon’s suspicions apparently got the better of him when it came time for him to decide whether Joann Nunez was a Bronx resident or not. Evidently skeptical of her explanation for why she was staying with a friend in the Bronx, the judge decided that Nunez was only pretending to reside in the county to avail herself of a pool of potential jurors who presumably would be highly sympathetic to her medical malpractice claim against the Ellenville Community Hospital out in the boondocks. On that basis, McKeon granted the defendant’s motion to transfer the case to the defendant’s neck of the woods, Ulster County. The Appellate Division sent the case back to the Bronx. McKeon’s suspicions about where Nunez really lives were unfounded, the appellate panel found. She had been a Bronx resident for most of her life, and her explanation for her temporary residence at the time of the commencement of the action stacked up. She was living in the apartment of a friend to get her life back in order, not for the sole purpose of obtaining an advantageous venue, the appellate panel said, reaffirming her right to proceed with her suit in her home county court. Nunez v. Ellenville Community Hospital  (June 21)

NEW YORK COUNTY

SENTENCING: Justice John Cataldo got whipsawed by a change in the law that took effect while a drug trial was underway in his court. The new Drug Law Reform Act has one provision in particularly that had an important bearing on the case, a provision raising the weight threshold for a first-degree drug possession offense from four ounces to eight ounces. Before the jurors began deliberating, Cataldo gave them instructions based on the old law with its four-ounce threshold for first-degree crimes. By the time the jurors returned with a verdict finding the defendant guilty of possessing more than four ounces, Cataldo evidently had changed his mind and had decided that the new statutory eight-ounce threshold applied. Since the jury made no finding that the defendant possessed more than eight ounces, he reasoned, the crime must be downgraded to a second-degree offense. The Appellate Division didn’t allow Cataldo to get away with his bait and switch on the jury. The defendants were properly convicted of first-degree possession under the charge that he delivered without reservation, the appellate panel said. There was more than sufficient evidence that defendants possessed in excess of four ounces, so Cataldo had no lawful basis upon which to modify the verdict, the appellate panel said. People v. Caceres (June 26)

TORT: Justice Marilyn Shafer allowed a plaintiff to proceed to trial for a slip and fall in the Port Authority terminal with a complaint that was a little too flimsy for four of the five judges on the Appellate Division panel. The plaintiff, Natasha Kudrov, didn’t recall seeing any water or debris before she fell, but she said the floor was “shiny” and “slippery.” Four of the five judges on the appellate panel were underwhelmed. The fact that the floor was “slippery by reason of its smoothness or having been polished” does not give rise to an inference of negligence, the majority said. One dissenter, backing Shafer’s decision to let the case proceed to trial, insisted that Kudrov was alleging that the floor wasn’t just shiny, it was overwaxed, as she suspected when she picked herself up after her fall and felt a waxy substance on her clothes. insisted there was no evidence that the floor was negligently waxed, which might have tipped the scales in the summary judgment proceeding. Kudrov v. Laro Services Systems, Inc. (June 26)

LANDLORD TENANT: Justice Marcy Friedman erred in letting Evelyn D. Giaccio’s proceed with a negligence cause of action against the owner of the building where she lived on a speculative  theory about the origins of a fire in her apartment. Giacco asserted that the fire in her apartment was caused by the long term effect of high heat from hot water pipes on the wood sub-flooring, which caused the wood to combust. The Appellate Division found no credible evidence to support that theory, but plenty of other evidence indicating the fire began above the floor, near Giacco’s couch. In any event, the owner had no reason to suspect anything was wrong. Giacco’s occasional complaints about fluctuating water temperatures weren’t a tipoff about the possibility of an unrelated fire hazard caused by the pipes, so the owner had no duty to remove the floor for an inspection, the appellate panel concluded, reversing Friedman and dismissing the suit. Giaccio v. 179 Tenants Corp. (June 21)

JUDICIAL REVIEW: Justice Walter Tolub went well beyond his prerogatives as a reviewer of an administrative proceeding when he ordered New York University to lighten up on Michael Quercia, a student caught running a marijuana dealing operation out of his dorm room. NYU suspended him for a year and said he’d have to spend 500 hours in community service to win readmission. Tolub cut the service commitment to 100 hours and ordered the university to reinstate Quercia as soon as he fulfills that requirement. Tolub was out of line, the Appellate Division said. Judicial review of an educational institution's disciplinary determination involving nonacademic matters is limited to whether a determination and punishment are arbitrary and capricious or not. In this case, the university followed its own rules in meting out punishment, the appellate panel said. In light of the evidence against Quercia, which included 10 ounces of marijuana, $1,740 in United States currency, a digital scale, boxes of baggies and various and sundry other items of alleged drug paraphernalia, the penalty was, whatever Tolub may think, neither shocking nor disproportionate. Matter of Quercia v. New York University (June 21)

RIGHT TO COUNSEL: Justice Lewis Bart Stone told Benjamin Anderson that he couldn’t act as his own lawyer in his robbery trial because he had admitted that he had a memory problem. Judge Stone is the one who suffered a memory lapse in the case, the Appellate Division concluded. He forgot that defends have a right to represent themselves unless they are mentally unfit for the task. Stone failed to determined whether Anderson is mentally impaired and his denial of the defendant’s request was a reversible error, the appellate panel concluded, reversing Anderson’s robbery conviction. People v. Anderson (June 21)

TORT: Justice Milton A. Tingling decided that Sener Cavus was liable for a traffic accident involving another vehicle driven by Franklin Zhinminay. The Appellate Division reversed and sent the case back to court. Tingling could not really know who was to blame, the appellate panel explained, given the imprecise, equivocal and conflicting accounts of the two parties involved about what happened immediately before the accident. Zhinminay v. Cavus (June 21)

KINGS COUNTY

SENTENCING: Justice Abraham Gerges was reversed in five separate cases in which the defendants pled guilty to selling drugs, because he sentenced them to relatively lenient six- and eight-year prison terms under the Drug Law Reform Act — despite the fact that they committed their crimes before the effective date of the new law. The sentences were invalid as a matter of law, and the defendants must be resentenced under the law applicable at the time of their offenses, the appellate panels in each case said. People v. Denton; People v. Faison; People v. Javaris; People v. Opharrow; People v. Warren (June 19)

TORT: Justice Sylvia Hinds-Radix was reversed for the second time in a week for allowing a bus passenger to proceed with a suit against the transit authority for injuries he sustained when he fell on a raised section of roadway near a bus stop. Hinds-Radix should have dismissed Harold Shaller’s complaint, said the Appellate Division, because the transit authority isn’t responsible for street maintenance, and the mound on the road wasn’t the result of negligence, but instead was created by the normal operation of buses. Shaller v. City of New York  (June 19)

QUEENS COUNTY

LIBEL: Justice Allan Weiss was reversed for overturning a big jury verdict against a bank that had admittedly dishonored many of a car dealership’s checks for no good reason. The jury was convinced by evidence that the dishonored checks over a period of nearly a year seriously damaged the dealership’s reputation, costing it business and raising the interest rates that its suppliers charge, ultimately inflicting nearly $3 million in damage. The Appellate Division said the jury could have rationally reached the verdict it handed down, and Weiss had no good reason to trump that verdict with his own assessment. Goldsmith Motors Corp. v. Chemical Bank (June 19)

SENTENCING: Justice Seymour Rotker punished Theil Stapleton twice for the same crime by sentencing him to serve two sentences, back to back, for each of the two counts of burglary on which he was convicted. The Appellate Division reversed, noting that since the two counts arose from a single act against a single person, it was essentially the same criminal act and the sentences should run concurrently. People v. Stapleton (June 19)