Half of the 14 cases that required appellate intervention were modified for the technical reason that the judge found the juvenile guilty of an offense such as robbery and also a lesser included offense such as assault, which should have been dropped. Three of Cordova’s rulings were modified for that reason.

Out of the seven substantive reversals in juvenile cases so far this year, appellate panels in two cases tossed out or downgraded one of several counts, leaving the delinquency adjudication otherwise intact. In another of those cases, a judge dismissed a delinquency proceeding that an appellate panel reinstated. That leaves four cases citywide in which the Appellate Division has reversed outright a delinquency adjudication this year. Three of those cases emanated from Cordova’s court.

In the latest such reversal, four of the five judges on an Appellate Division panel concluded that Cordova was too hard on a teenager identified as Carlique P. He was one of a group of five ruffians on a bus who ordered two other boys to disembark “or else,” then followed them off the bus and proceeded to join the group of five in pummeling the victims. One of the assailants used brass knuckles. The two victims eventually managed to escape back onto a bus, though one left his leather jacket behind after it was ripped off during the melee.

As the bus drove away, the victims saw Carlique pick the jacket off the ground and hand it to one of the other assailants. Cordova’s error, the majority insisted, was in adjudicating Carlique as a juvenile delinquent on grounds that in picking up the jacket, he committed the offenses of larceny and criminal possession of stolen property. In fact, there was not enough evidence to support a finding of larcenous intent beyond a reasonable doubt, the majority asserted.

A lone dissenter on the panel belittled that notion, and came to Cordova’s defense. Cordova “reasonably inferred that [Carlique] intended to dispose of the jacket under such circumstances as to render it unlikely that the complainant would recover it,” said the dissenter, who would have affirmed the ruling that Carlique is a delinquent. Matter of Carlique P.  (July 19)

The two other juvenile cases in which Cordova has been reversed outright by the Appellate Division this year include one in which she allowed a juvenile facility to extend a recalcitrant teen’s term in custody even though the facility failed to make the request 60 days ahead of time, as required by law. In the other case, Cordova found that a teen who possessed an unmodified kitchen knife, apparently the kind used to spread butter, was guilty of possessing a “dangerous” weapon.

OTHER NOTABLE REVERSALS

NEW YORK COUNTY

CONTRACT: Last week, Justice Karla Moskowitz was reversed for improperly invoking the parol evidence rule to exclude evidence that undermined the viability of a written contract. This week, Moskowitz was reversed for improperly employing the statute of frauds to declare that an oral contract setting up a joint venture was void as a matter of law. Moskowitz concluded that the ostensible agreement could not be performed within a year and therefore, it was barred by the statute of frauds because it was not in writing. She granted the defendant’s motion to dismiss the complaint seeking enforcement of the contract. The Appellate Division reinstated the complaint with a unanimous ruling that set Moskowitz straight on the uses and abuses of the statute of frauds. The parties had indeed discussed the possibility that the joint venture might last longer than one year, the appellate panel acknowledged. But there was nothing in the agreement that would have precluded its completion with one year, and that being the case, the statute of frauds should not have been deployed to summarily halt litigation over the alleged agreement. The defendants may ultimately succeed with their argument that the parties merely had an agreement to agree, not a binding contract, the appellate panel concluded. But the defendants did not prove as a matter of law that there was no contract. Foster v. Kovner (July 19)

ARBITRATION: Justice Charles E. Ramos overstepped his authority in second guessing an arbitration panel’s interpretation of the agreement settling claims by New York and other states against tobacco manufacturers. As the Appellate Division pointed out, the economists, acting in the capacity of arbitrators as called for in the agreement, did not exceed their authority or violate public policy with their decision adjusting the payment obligations of various tobacco companies to account for their loss of market share. So Ramos had no authority to vacate the economists’ award and supplant it with his own interpretation of the settlement agreement, the appellate panel said. State of New York v. Philip Morris Inc. (July 19)

ATTORNEY’S FEE: Justice Karen S. Smith detected some ambiguity where the Appellate Division found none in a retainer agreement under which the law firm of Arkin Kaplan LLP represented Thomas W. Jones in a wrongful termination action against Citigroup. The appellate panel concluded that the law firm was correct in its interpretation of the agreement and is therefore entitled to summary judgment on its claim for a success fee for obtaining a $5 million settlement from Citigroup. Smith properly dismissed Jones’s counterclaim in which he sought to blame the law firm for the fact that he didn’t get more. Arkin Kaplan LLP v. Jones (July 19)

TORT: Justice Debra A. James properly denied a landlord’s motion to dismiss a suit by Simonette Hakim, a tenant who was injured when a metal security gate attached to the façade of the storefront she leased fell off the building. But according to the Appellate Division, James should have dismissed part of the claim seeking to hold the sole shareholder of the corporate landlord individually liable. He was not in complete and exclusive control of the premises, and individual liability can not be based on an allegation that amounts to mere nonfeasance, the appellate panel said, modifying James’s judgment to correct the error. Hakim v. 65 Eighth Ave., LLC (July 19)

KINGS COUNTY

TORT: Justice Martin Solomon was reversed, for the second time this year, for holding a transit authority responsible for the condition of pavement adjacent to transit authority property. In this most recent such case, Solomon erred, according to the Appellate Division, in allowing Olga Arpi to proceed with a suit against the transit authority for her trip and fall on a cracked and uneven section of sidewalk that was located three to five feet away from an entrance to a subway station.  A unanimous appellate panel reminded Solomon that the transit authority does not own, maintain, operate, or control public sidewalks that abut transit facilities, and therefore had no duty to exercise reasonable care with respect to the area where Arpi fell. Solomon should have summarily dismissed her claim against the transit authority, the appellate judges concluded. Arpi v. New York City Transit Authority (July 17)

Back in January, Solomon was reversed for allowing a woman who fell on the street while attempting to board a bus to proceed with a suit holding the transit authority accountable for the condition of the pavement. In June, Solomon was reversed in a similar case, though this time the defendant who he erroneously refused to let off the hook was the owner of private property adjacent to the sidewalk where the plaintiff tripped and fell.

TORT: M. Randolph Jackson erred in allowing Dontai King and his mother to file a late notice of claim against the city hospital corporation, seeking damages for injuries allegedly caused by medical malpractice during the infant petitioner's birth seven years earlier. The plaintiffs had no good excuse for the long delay in filing a claim, said the Appellate Division. Although the hospital had records of the birth, that did not mean the city had de facto notice of the potential claim, the appellate panel said, because their was little in the record to hint that the baby was injured due to medical malpractice. Matter of King v. New York City Health and Hospitals Corp. (July 17)

BRONX COUNTY

TORT: Justice Janice L. Bowman should have dismissed Ruben Rivera's claims against a pair of contractors for the injuries he allegedly sustained when a car veered out of control and hit him shortly after it had passed over a raised manhole cover. The Appellate Division acknowledged that Rivera has a viable claim asserting that the manhole cover, on a street undergoing paving, contributed to the accident. But there is no evidence that the contractors whom Rivera sought to sue were responsible for the condition, or that the raised manhole cover created a nonconformity with the contract specifications requiring any action on their part to report it. Bowman therefore should have dismissed the claims against those defendants, the appellate panel concluded. Rivera v. City of New York (July 19)

QUEENS COUNTY

TORT: Justice Peter Kelly improperly allowed William Misa to amend his complaint against the driver of a car who was allegedly responsible for an accident. The amended sought to add Misa’s employer as a defendant. Misa failed to make diligent efforts to learn the name of the employer at an earlier date, and by the time he got around to doing that, the statute of limitations had expired, said the Appellate Division, which refused to let Misa escape the consequences of his procrastination. Misa v. Hossain (July 17)