Bronx County Justice Dianne T. Renwick dutifully followed the law, despite the unwelcome outcome — the release of a violent, paranoid schizophrenic from the Bronx Psychiatric Center. The state facility’s authority to detain him under the Mental Hygiene Law had expired, and that was that, as far as Renwick was concerned.

Justice is supposed to be blind, but not that blind, the Appellate Division seemed to say, in a ruling that rewarded Renwick with a reversal for her strict adherence to the law.

That the patient had “continued to be held without a legal basis” after the psychiatric center failed to apply for an extension was “troubling,” the appellate panel conceded. But under the circumstances, Renwick should have weaseled her way out of the bind.

The Appellate Division found a way out in a provision of the Mental Hygiene Law that requires judges to “examine the facts concerning the person's alleged mental disability and detention.” The appeals judges found that Renwick did not do that. If she had, she would have reached a different conclusion, the appellate division said.

“The patient's documented history of physical violence both prior to and during his time at BPC raise concerns regarding whether he poses a threat to others, and under the circumstances presented, rather than directing the patient's immediate release, [Renwick] should have considered the merits of BPC's retention application,” despite the fact that it was filed late, the appellate judges concluded. State of New York ex rel. Anup Karur v Carmichael  (June 28)

OTHER NOTABLE REVERSALS

BRONX COUNTY

ATTORNEYS FEES:  Justice Betty Owen Stinson stiffed a law firm that spent more than three years working on a case and took it to the brink of a settlement. Stinson concluded, erroneously in the Appellate Division’s opinion, that the firm, which had accepted a $600,000 settlement offer contingent upon the plaintiff’s consent, was discharged for misconduct and therefore didn’t deserve a penny of the $950,000 settlement that the plaintiff and successor law firm accepted just a month later. The original firm’s chief error, in Stinson’s view, was failing to file a derivative claim on behalf of the injured plaintiff’s wife. According to the appellate panel, however, the law firm had a good reason not to file a derivative claim. The plaintiff had insisted in the intake interview, and had sworn under oath in an unrelated workers compensation matter, that he was single. The appellate panel concluded that the law firm was entitled to its negotiated contingency fee on the first $600,000 of the amount awarded in the settlement. The successor firm deserved no more than its negotiated fee on the $350,000 extra that it obtained in the final settlement. Matter of Wingate, Russotti & Shapiro, LLP v Friedman, Khafif & Associates  (June 28)

TORT: Justice Edgar G. Walker evidently put a little too much stock in the city law that shifted a considerable amount of authority over city schools from the Board of Education to the mayor. The judge allowed Nancy Torres to proceed with a suit against the city for injuries allegedly sustained by her child in a fight at a public school. The aggrieved mom picked the wrong defendant, the Appellate Division said. The 2002 legislation that shifted some authority over education to the mayor, after all, did not abrogate the statutory scheme for bringing lawsuits arising out of torts allegedly committed by school employees. Thus, Walker should have dismissed Torres’s suit against the city. The proper defendant was the Board of Education. Perez v City of New York (June 28)

INSURANCE: Justice John A. Barone concluded that an insurance company had properly cancelled Jason Kitchen’s assigned-risk auto insurance policy. The Appellate Division disagreed. The company had taken the initial steps to cancel the policy but couldn’t prove to the satisfaction of the appellate panel that it had taken the final step required by law: filing a copy of the notice of cancellation with the Department of Motor Vehicles within 30 days of the effective date of the cancellation. Matter of Progressive Classic Insurance Co. v Kitchen (June 28)

DEPRAVED INDIFFERENCE: Justice David Stadtmauer is the latest judge to stumble over the distinction between “depraved indifference” murder and other categories of homicide. In a case in which Johnny Hernandez shot and killed a man who resisted when Hernandez’s friend tried to take a chain from around his neck, Stadtmauer told jurors that they could choose among first-degree murder, intentional murder, felony murder, and first- or second-degree manslaughter, as well as depraved indifference murder. Jurors chose to convict on the latter offense, which didn’t fit the facts of the case, said the Appellate Division. The evidence would have supported a conclusion that Hernandez either deliberately shot the victim or did so accidentally when the victim began to struggle during the robbery, but there was no evidence from which the jury could have correctly concluded that Hernandez acted under circumstances evincing a depraved indifference to human life, said the appellate panel, reversing the conviction. People v Hernandez (June 28)

NEW YORK COUNTY

EMPLOYMENT: Justice Barbara R. Kapnick erred in allowing M'Hammed Soumayah, Liza Minelli’s former bodyguard and personal assistant, to sue the singer and actress for the value of services he allegedly provided that were outside the scope of his contract with her. The majority of a divided panel of the Appellate Division noted that Minelli had recently informed him that she could no longer afford to pay his $230,000 annual fee and wanted to negotiate a pay cut. Under those circumstances, he can’t claim that he performed the noncontractual services with an expectation that he would be compensated, a prerequisite for invoking the doctrine of quantum meruit, the theory on which he based his claim. Krapnick also should have dismissed two other causes of action, including one that raised the irrelevant and prejudicial allegation that she offered him a settlement to drop his suit, said the appellate majority. Soumayah’s other causes of action against Minelli, including wrongful discharge and sexual harassment, survived the appeal. Two dissenters on the appellate panel, however, sided with Kapnick and insisted that the fired bodyguard should have been allowed to proceed to trial on all counts. Soumayah v Minnelli (June 28)

LEGAL MALPRACTICE: Justice Judith J. Gische evidently believed that since Erran Kagan, the owner of an electronics firm, was a sophisticated businessman and a lawyer to boot, who had admittedly read a contract line by line before signing it, he can hardly accuse the law firm that represented him in the negotiations of malpractice for failing to alert him about the implications of one provision in the deal. Gische dismissed the client’s malpractice counterclaim in the firm’s suit for unpaid legal fees. The Appellate Division reversed Gische and reinstated the counterclaim. Kagan could make a viable argument that he was justified in relying on the attorneys to produce an agreement that accurately reflected his perception of the transaction, the appellate panel concluded. Mandel, Resnik & Kaiser, P.C. v E.I. Electronics, Inc. (June 28)

CRIMINAL: Justice Robert H. Straus entered a judgment of conviction against Floyd Smith for third-degree assault, on the strength of evidence that, in the Appellate Division’s view, wasn’t sufficient to establish that the victim suffered a physical injury, an element of the offense. The conviction therefore should be downgraded to attempted third-degree assault, and Smith should be released on time served, the appellate panel said. People v Smith (June 28)

KINGS COUNTY

TORT: Justice Bernadette Bayne erred in concluding that Brooklyn Union Gas Company was entitled to indemnification from a construction company, even though a jury found that both were guilty of negligent conduct that contributed to the injuries sustained by the plaintiff. Since the gas company’s negligence was a substantial factor in causing the accident, the Appellate Division concluded that the General Obligations Law barred the utility from seeking contractual indemnification. Kalinsky v Square (June 26)

TORT: Justice Bayne was flagged for a reversible error in a second case when she allowed Zenona Baez, who was injured in a mishap involving a fire escape, to proceed with a suit against a company that made a limited repair to a portion of the fire escape with no connection to the accident. Baez v Jovin III, LLC (June 26)

TORT: Justice Ira Harkavy dismissed the complaint against the owner of a building in which Wing Cheong Woo was assaulted, evidently satisfied that the owner had installed the minimal security precautions against crime required in its industrial loft building. Judging from the Appellate Division’s contrary finding, Harkavy should have looked beyond the question of whether the security systems had been installed to whether they worked. The appellate panel reinstated the complaint on grounds that Woo raised viable questions about whether the owner properly maintained the building’s security devices. Harkavy also erred in letting the owner proceed with a claim against Woo’s employer for indemnification. The employer was a tenant in the building, but the indemnity provision in the lease is unenforceable for a number of reasons including the fact that it failed to make an exception for the owner's own negligence, the appellate panel concluded. Po W. Yuen v 267 Canal St. Corp. (June 26)

LABOR LAW: In another case, Harkavy erred in refusing to dismiss Labor Law and common law negligence claims against a general contractor that did not supervise or control the dismantling of the crane that led to the injury. McLeod v Corporation of Presiding Bishop of Church of Jesus Christ of Latter Day Saints (June 26)

TORT: Justice Leon Ruchelsman allowed Sonia Nunez to proceed with a suit against Bell Atlantic and Verizon because they had destroyed documents that Nunez’s lawyers had sought in discovery in the suit to recover damages for the injuries she allegedly sustained when she tripped and fell over a telephone cord as she was cleaning a guest room during the course of her employment at a hotel. Ruchelsman overreacted, according to the Appellate Division, which noted that the destroyed documents were not central to the plaintiff's case, and in any event the phone companies sued by Nunez demonstrateed that they did not own, install, maintain, or repair the telephone equipment in the hotel room. Nunez v Bell Atlantic Corp. (June 26)

QUEENS COUNTY

TORT: Justice Thomas Polizzi had an overly narrow view of what constitutes recreational space, according to the Appellate Division. Polizzi refused to let the owner of a two-acre wooded parcel near a residential complex in Queens invoke the “recreational use statute” to fend off a suit by Michael Rivera, who was riding his bicycle on a dirt path through the lot and was injured when his front tire dropped into a three-foot-deep hole. A unanimous appellate panel concluded that the case met the two requirements of the law, which aims to encourage landowners to allow members of the public to make recreational use of their land by protecting them from liability for any injuries. First, Rivera was engaged in bicycle riding, one of the recreational activities listed in the statute. Secondly, the lot in question had not been designated for any other use and is an appropriate place for cycling, particularly in an urban setting where wide open spaces are in short supply. Polizzi should have done his part to encourage landowners to allow member of the public to use their property for recreational purposes by summarily dismissing Rivera’s suit, the Appellate Division said. Rivera v Glen Oaks Village Owners, Inc. (June 26)

RICHMOND COUNTY

MEDICAL MALPRACTICE: Justice Philip Minardo erroneously applied the continuous treatment doctrine to allow Ann DiGiaro to sidestep the 2-1/2-year statute of limitations for medical malpractice claims in her suit against Dr. Vincent M. Sottile. In her first visits to the doctor in 1997, he treated her for hemorrhoids. As the Appellate Division saw it, that condition was unrelated to the colon cancer that was detected later, so there was no continuance treatment and therefore, Sottile is potentially liable only for conduct during the 2-1/2-year period immediately prior to commencement of the malpractice suit. DiGiaro v Agrawal (June 26)