Judicial Reports:
ACCIDENTAL JURIST
By Mark Thompson
Posted 07-20-07
New York County Justice Milton A. Tingling has been flagged down by the Appellate Division — yet again — for allowing a driver injured in a collision to sue the owner of a vehicle that had nothing whatsoever to do with the accident. And this one's a real head-scratcher.
RR last toted up Tingling’s reversals in traffic-accident cases in February. At that time, he had picked up seven in less than five months, including one in which he allowed a speeding motorcyclist who lost control of his bike and careened into the path of an oncoming car to sue its driver. Since then, Tingling has picked up six more reversals in traffic-accident cases, including one in which he declined to dismiss a complaint against a driver whose vehicle was hit by another car that suddenly backed out of a driveway into a busy street, and another in which he allowed a driver to sue a bystander, despite the record in the case, as the appellate panel noted, having been “bereft of legally credible evidence” that the defendant was anything other than a witness to the accident.
The latest reversal corrects a ruling by Tingling that is arguably the most inexplicable of all. He allowed Eileen Bisogna, who collided with a car driven by Donna Economos, to sue Verizon. Why? Because according to the testimony, somewhere between 30 seconds and a minute before the accident, Economos had passed through an intersection where a Verizon truck was parked. “There is not a scintilla of evidence that the Verizon truck had anything to do with the accident between plaintiff and defendant Economos,” a confounded appellate panel pointed out, reversing Tingling and letting Verizon out of the suit. Bisogna v. Economos (July 12)
OTHER NOTABLE REVERSALS
NEW YORK COUNTY
INSURANCE: Justice Richard B. Lowe III got reversed for getting sidetracked in a dispute over an insurance claim. The insurer disclaimed coverage on grounds that the policyholder failed to promptly notify it of the loss, as required by the policy. Lowe allowed the policyholder to proceed with its suit seeking coverage anyway, on grounds that the insurance broker failed to obtain the full coverage that the policyholder sought. True or not, that’s irrelevant, the Appellate Division noted. Even if the policyholder had obtained the policy it wanted, its claim would have been rejected for its failure to provide timely notice of the loss.
The appellate panel’s ruling in the case, US Pack Network Corp. v. Travelers Property Casualty (July 12), is the twelfth of the year in which Lowe has been reversed, in full or in part, putting him well ahead of the five other judges in the Commercial Part. In the year to date as of July 12, Justice Helen Freedman has been reversed eight times, Justices Herman Cahn and Karla Moskowitz have picked up seven reversals each, Justice Charles Ramos has been flagged six times, and Justice Bernard Fried trails the pack with four.
CONTRACT: Justice Karla Moskowitz earned her sixth reversal of the year by taking a loan agreement between Polygram Holding and Al Cafaro, a former top executive, at face value. Moskowitz, who excluded testimony from an array of executives suggesting that the contract was a sham, adhered too rigidly to the parol evidence rule, the Appellate Division said. Since the loan agreement was unambiguous, there was no need to look beyond the wording of the document itself to figure out what it meant, Moskowitz insisted. It was a loan, plain and simple, she concluded, granting summary judgment to Polygram in its suit for repayment. As the appellate panel pointed out, however, the testimony that Moskowitz chose to ignore wasn’t being introduced to elucidate the meaning of the document. It was being offered by Cafaro to prove that the supposed contract requiring him to repay the loan was not a contract at all, and the parole evidence rule can’t be used to exclude evidence in that circumstance, the appellate panel said. As several company officials acknowledged, in the testimony that Moskowitz kept out of the case, Polygram had a long standing practice of compensating executives with supposed loans that were never meant to be repaid, and Cafaro was told the payment to him was a “loan” of that sort. Reversing Moskowitz’s judgment in favor of Polygram, the appellate panel sent the parties back to court and granted Cafaro’s motion to compel the company to answer his questions about the so-called loan. Polygram Holding, Inc. v. Cafaro (July 12)
SEARCH: Justice Charles H. Solomon denied Mark Johnson’s motion to suppress a gun that a police officer allegedly found in his waistband without giving the defendant a chance to fully explain why, in his view, the police had no reason to stop and frisk him in the first place. Solomon’s failure to hold a suppression hearing forced the Appellate Division to toss out the evidence and reverse Johnson’s conviction on weapons possession counts and 13-year prison sentence imposed on the repeat offender. People v. Johnson (July 12)
TORT: Justice Saliann Scarpulla was reversed for allowing Mindy Hodges to sue the owner of a building where she was injured in an elevator that plummeted for several floors before stopping abruptly. The owner contracted with an elevator company, which provided a full-time, on-site mechanic to maintain and repair the equipment, that that company was the proper defendant, the Appellate Division said. Hodges v. Royal Realty Corp. (July 12)
REAL ESTATE: Chase Home Finance didn’t even have to ask Justice Faviola A. Soto to dismiss Declan O'Brien’s complaint seeking to annul a non-judicial sale of his cooperative apartment. She dismissed the complaint “in the absence of any request for such relief,” said the Appellate Division, which signaled its displeasure by reversing Soto. O’Brien’s suit shouldn’t have gotten the boot even if Chase had asked for a summary dismissal, said the appellate panel. His complaint raises questions that deserve answers about whether the sale was conducted in a commercially reasonable manner and whether Chase's rejection of a payment that O’Brien had been told would bring him back into the lender’s good graces provides him with an equitable defense to the default. O'Brien v. Chase Home Finance, LLC (July 12)
FRIVOLOUS LITIGATION, DEFAMATION: Justice Leland DeGrasse correctly dismissed Alison R. Minton’s sexual harassment suit against her former employer, The Wings Club. But he overreached in slapping a sanction on Minton for bringing a frivolous claim, said the Appellate Division. The complaint was unfounded but not entirely frivolous, the appellate panel concluded, reversing DeGrasse’s order requiring Minton to pay the club’s legal fees for fending off the harassment claim. DeGrasse got something else about the case partly right. He correctly denied the club’s motion to dismiss a defamation claim for allegedly false statements that hurt her reputation. But he erred in barring her from citing the employer’s allegation that she was responsible for the embezzlement and allowed it to happen. That statement was not, as DeGrasse maintained, “nonactionable opinion,” the appellate panel said. Minton v. Wings Club (July 12)
MEDICAL MALPRACTICE: Justice Alice Schlesinger should have set aside a jury verdict in favor of the estate of a suicide victim holding the staff at a psychiatric facility liable for carelessly discharging him a week before he killed himself. As the Appellate Division saw it, the estate’s medical expert failed to demonstrate that the defendants' evaluation and treatment of the decedent for major depression deviated from the proper standard of care. In retrospect, it may well have been a mistake to release him from the hospital, but medical providers can’t be held liable for a mere error in professional judgment, the appellate panel explained in vacating the judgment. Durney v. Terk (July 12)
BRONX COUNTY
CRIMINAL PROCEDURE: Justice Megan Tallmer found Philip McMillan guilty of robbery even though there was no evidence that he took anything from the victim. On appeal, prosecutors conceded that the lack of evidence of larceny knocked the legs out from under the robbery conviction. The Appellate Division duly vacated the conviction on that count. Luckily for prosecutors, Tallmer told the jurors to stop deliberating after they reached a guilty verdict on the robbery count. Since they never got around to considering the lesser included offense of first-degree assault count, prosecutors can retry McMillan for that crime without putting him in double jeopardy. People v. McMillan (July 12)
TORT: In more than a century since the city erected an iron fence on the Macombs Dam Bridge Approach in the Bronx, nothing like the accident that took the life of Mamady Square had ever happened before. Justice Douglas E. McKeon apparently thinks the city should have taken steps in anticipation of such an accident anyway. Square was on the bridge in his car, waiting to make a turn onto the down ramp to east 161st Street, when he was struck in the rear by a hit and run driver, propelling his car through the fence to the roadway 25 feet below and killing him. McKeon allowed his estate to proceed with a negligence suit against the city. The Appellate Division reversed McKeon and dismissed the claim on grounds that in the absence of similar accidents or complaints, the city had no duty to inspect or modify the fence. Diakite v. City of New York (July 12)
KINGS COUNTY
TORT: Justice Lewis Douglass was reversed for keeping a building owner on the hook for burns sustained by Raul Garcia, a mechanic at an auto body shop that leased part of the premises. As the Appellate Division pointed out, because there were no allegations about any defect in the building itself, Douglass should have dismissed the suit against the landlord. The judge also erred in refusing to dismiss the suit against the body shop owner. Garcia’s exclusive remedy against his employer was through the worker’s compensation system, the appellate panel explained. Garcia v. Pepe (July 10)
TORT: Justice Sylvia Hinds-Radix was reversed for refusing to dismiss a suit against the YMCA by day-camper who broke his knee while playing with other kids during free time. Schools and childcare facilities have a duty to provide adequate supervision, but they are not insurers of students’ safety at all times, the Appellate Division said. In this case, there was no evidence that the child was engaged in anything other than normal play at the time of the accident, so Hinds-Radix should have summarily dismissed the complaint. Santos v. New York City Department of Education (July 10)
LEGAL MALPRACTICE: Justice Francois Rivera allowed Robert Iannucci to pile on with a redundant cause of action in his suit against the law firm of Kucker & Bruh. Rivera correctly allowed Iannucci’s to proceed with claims accusing the firm of legal malpractice and seeking to recover allegedly excessive legal fees. But Iannucci’s causes of action alleging negligent misrepresentation and fraud should have been dismissed because they arise from the same facts as the legal malpractice claim and do not allege distinct damages, the Appellate Division said. Iannucci v. Kucker & Bruh, LLP (July 10)
QUEENS COUNTY
GUARDIANSHIP: Justice Charles Thomas got ahead of himself in bringing down the hammer on the Holliswood Care Center for the way it handled a 93-year-old patient identified by the court as Mr. T. He was admitted after a Meals-on-Wheels volunteer alerted authorities about a wound on his arm that appeared to be a human bite mark. Ostensibly for his own safety, the center held him against his wishes for more than three months and refused to release him to his daughter, who had cared for him for many years, until she prevailed in a guardianship proceeding. Thomas awarded guardianship to the daughter, a ruling that was affirmed by the Appellate Division. He ran afoul of the appellate panel, however, by using the guardianship proceeding to slap the center with the daughter’s $26,000 bill for legal fees. Holliswood should have been informed that the guardianship hearing would serve as a basis for the award of attorneys' fees, giving the facility a change to explain why it had refused to release Mr. T. for more than three months, the appellate panel said. Matter of T. (July 10)
TORT: Justice Alan LeVine was reversed for allowing Yan Quan Wu to proceed with a suit against the city and a home owner for his alleged slip and fall on a snow-covered grassy strip between the sidewalk and a bus stop. In an affidavit in response to the motion to dismiss, Wu for the first time mentioned that ice on the sidewalk contributed to the accident. LeVine evidently went along with the revised storyline, but the Appellate Division cried foul, rejecting Wu’s “new and contrived assertions” that were “clearly designed to raise feigned factual issues in order to avoid the consequences of his earlier deposition testimony.” In his deposition, Wu had insisted that he slipped on snow covering the grass, and, as the Appellate Division noted, the homeowners had no duty to clear that area. Even if the city was responsible for the grassy strip since it was next to a bus stop, the obligation to clear that area didn’t kick in until a reasonable time had passed after the snowstorm, which was still underway when Wu took his tumble. Yan Quan Wu v. City of New York (July 10)
Posted by Dirk on July 19, 2007 05:51 PM to Judicial Reports