The ruling in People v. Aleman (September 25) was the second in two months in which unanimous appellate panels have sharply rebuked Stadtmauer for conducting slapdash plea hearings. In a ruling in July, People v. Colon, the Appellate Division castigated Stadtmauer for his “woefully deficient” attempt to ascertain in a 2002 proceeding whether the defendant understood what rights he was giving up by pleading guilty.

In its latest reversal of Stadtmauer, the Appellate Division noted that on three occasions, Aleman’s attorney, “frustrated at defendant's adamant refusal to admit anything of an inculpatory nature, asked that the matter proceed to trial. On the last occasion, counsel stated, ‘Judge, you can't take this plea . . . . Every time you ask him a question, his first response is, No, I didn't do it, or No, I didn't give the money.' It's my opinion that he's claiming he didn't do this. If he didn't do this, then we have to go to trial." Yet Stadtmauer wouldn’t give up, until he heard Aleman mutter “yes” to a question about whether he gave $100 to an undercover officer for the purpose of having the undercover kill the intended target of the conspiracy.

Aleman never sought to withdraw his guilty plea. But the plea hearing was so corrupted by the judge’s overbearing manner that appellate review was warranted, despite the absence of such a motion, the appellate panel said. “Defendant's statements throughout the plea proceeding called his guilt into question and suggested he was not pleading guilty voluntarily, but rather out of necessity… Reviewing the plea proceeding as a whole, it is clear that [Stadtmauer] failed to exercise the diligence required to assure that the plea was knowing, intelligent and voluntary,” the appellate judges noted.

Stadtmauer erred in another respect. He failed to inform defendant of a single right he was waiving by pleading guilty. “There was no explanation whatsoever regarding the waiver. As the sentencing minutes make clear, defendant had no understanding of its import.” As a result, “the record fails to reflect that defendant's plea was entered knowingly and intelligently,” said the Appellate Division, vacating the plea and reversing Aleman’s conviction.

OTHER NOTABLE REVERSALS

QUEENS COUNTY

TORT: Justice Arnold Price, who has been reversed 10 times in the last year for prematurely sending plaintiffs packing, gave way too much leeway to a procrastinating personal injury plaintiff in his latest case called up for review by the Appellate Division. The plaintiff, Mikhail Ovchinnikov, who allegedly tripped and fell on stairs in a parking garage in 1994, commenced a medical malpractice suit in 1996 against the doctor who reset his fractured wrist and filed personal injury claims the next year against the owners of the garage. More than eight years later, he still hadn’t filed a notice of issue, and failed to do so even after the defendants filed 90-day notices. Price was willing to give Ovchinnikov an extension of time to file a note of issue anyway. It was a break that the Appellate Division insisted Ovchinnikov didn’t deserve, given that he offered no excuse to justify his extensive delay in seeking an extension, or his lengthy delay in prosecuting the action. He also failed to demonstrate the existence of a meritorious malpractice cause of action, concluded the appellate panel, which brought the hammer down on Ovchinnikov’s aging lawsuit and kicked it out of court. Ovchinnikov v. Joyce Owners Corp. (September 25)

NEW YORK COUNTY

CORPORATIONS: Justice Karla Moskowitz let a flimsy derivative suit proceed to trial that, according to the Appellate Division, deserved to be dismissed. The plaintiffs, who owned shares in Omnicom Group Inc., asserted that the company transferred its investments in Internet firms to a new subsidiary after the dotcom bubble collapsed in order to conceal the true financial condition of those holdings. In fact, Omnicom’s management offered the reasonable explanation that the new subsidiary included partners with turnaround expertise. That sufficed to establish that the move could have been the product of sound business judgment, knocking the props out from under the derivative suit, concluded the appellate panel, reversing Moskowitz and dismissing the case. Matter of Omnicom Group Inc. (September 25)

ATTORNEY’S FEE: Justice Karen Smith erred in allowing disbarred attorney Gary J. Rothman to sue a law firm for a share of a legal fee pursuant to a referral agreement. As the Appellate Division explained, a disbarred attorney may not share in any fee for legal services performed by another attorney during the period of his removal from the bar, so Rothman is out of luck with his contract claim. He might have had a viable unjust-enrichment claim for compensation for legal services personally rendered prior to disbarment, but to proceed on that theory, a court rule requires that the clients must be given notice, and Rothman gave none to the clients in this case. Rothman v. Benedict P. Morelli & Associates P.C. (September 25)

TORT, REAL ESTATE: Justice Emily Jane Goodman was reversed by the Appellate Division for keeping former owners of a piece of property on the hook for a slip and fall on the premises several months after they sold it and transferred the deed to the new owners. The former owners still had a mortgage on the property. But even if they had agreed to keep insurance and their mortgage on the property until the new owners secured their own financing and insurance, as the new owners argue, that still would not raise any questions about who actually owned and controlled the building when Laura Smith took a tumble down icy stairs at the entrance. The new owners were fully responsible for the property, said the appellate panel, so Goodman should have dismissed the claims against the former owners. Smith v. Andre (September 25)

CIVIL PROCEDURE: Justice Michael D. Stallman placed all the blame on Angel Nunez for a 15-month delay in enforcement of a prior court decision ordering the city to reinstate Nunez to his city job. In fact, the city was also at fault, the Appellate Division said. That misperception led Stallman to dismiss as untimely the new complaint filed by Nunez seeking enforcement of the prior order. Stallman should have given Nunez a procedural break by converting his complaint into proper form as an action seeking to hold the city in contempt, the appellate panel concluded. Nunez v. City of New York (September 27)

LABOR LAW: Justice Jane S. Solomon dismissed a complaint brought under the Labor Law provision covering elevation related risks for an irrelevant reason, the Appellate Division said.  Solomon kicked Roy Fischetto’s case out of court on grounds that the cleaning work he was performing when he was injured was routine maintenance, not construction, demolition or repair work. As the appellate panel noted, however, all that mattered for the purposes of a suit brought under the Labor Law provision cited in the pleadings is that Fischetto fell out of a window and arguably should have been provided with safety equipment that would have averted the accident. While that claim should be reinstated against Fischetto’s employer, the appellate panel said Solomon properly dismissed another claim against the property owner because the allegedly dangerous condition arose from the employer's methods, over which the owner had no supervisory control. Fischetto v. LB 745 LLC, York (September 27)

ATTORNEYS FEES: Justice Edward H. Lehner sought to put an end to the latest installment of a 15-year-old dispute concerning the division of money among former partners in a dissolved law firm by awarding payouts to two of the lawyers with a claim to funds. The Appellate Division sent the matter back to a referee for further findings on issues including the parties' capital account and fees and disbursements from litigation brought into the firm before the dissolution but resolved later.  Sexter v. Kimmelman, Sexter, Warmflash & Leitner (September 27)

CONTRACT: Justice Helen E. Freedman failed to give an insurance broker’s former administrative and processing agent all of the credits to which the Appellate Division said the agent was entitled in a suit brought by the broker alleging that the agent had breached its contract to provide administrative and processing services. By Freedman’s reckoning, the broker was entitled to just over $48,000 while the agent was entitled to $35,000 for sums paid to settle prior lawsuits relating to office and furniture leases. As the appellate panel saw it, the agent was entitled to additional credits of more than $64,000 for other items including "earned premiums" that the agent paid an insurance carrier but that were never reimbursed by the broker. Zapin, Endlich & Lombardo, Inc. v. CBS Coverage Group, Inc. (September 27)

MEDICAL MALPRACTICE: Justice Sheila Abdus-Salaam was too quick to dismiss Grace Mirabella’s medical malpractice claim against a doctor who admitted that he failed to double check a surgical stapler, despite indications that it had misfired when he used it to staple Mirabella’s bowel, said the Appellate Division, unanimously reversing Abdus-Salaam and reinstating the complaint. Mirabella v. Mount Sinai Hospital (September 25)

FIREARMS: Justice Leland DeGrasse should have granted Lamont Huber authorization to purchase a firearms collection that he was licensed to possess but that police had seized from his unlicensed mother’s apartment after her death. DeGrasse’s insistence on upholding the police seizure of the guns would, under the peculiar circumstances of the case, constitute an “unjust forfeiture,” the Appellate Division said. Matter of Huber v. Kelly (September 25)

KINGS COUNTY

TORT: Justice Martin Solomon rapped the city too harshly for failing to comply with a discovery order. The city apparently failed to meet a 90-day deadline to produce a deposition from a witness with knowledge of the planning and installation of the stop sign. But there was no clear showing that the failure was “willful and contumacious,” and in fact, the city made a good faith effort to comply, the Appellate Division said. Thus, the sanction imposed by Solomon of conditionally striking the city’s answer was not warranted, the appellate panel concluded. Barnes v. City of New York (September 25)

TORT: Justice David Schmidt was swayed by medical testimony offered by defense experts that was, in the Appellate Division’s estimation, “wholly unsupported and conclusory” and “irrelevant.” Schmidt summarily dismissed Joseph Cinquemani’s complaint alleging that he incurred serious pulmonary injuries from one-time exposure to paint vapors seeping into his apartment from another unit in the building. Schmidt evidently was convinced by two defense experts who insisted that the exposure couldn’t possibly have produced the injuries claimed by the plaintiff. Yet one of the experts, who insisted that his opinion to that effect was based on “medical and scientific articles,” didn’t deign to provide citations for a single one. The other expert asserted that paint fumes could not have caused neurological injuries, an irrelevant observation given that Cinquemani’s complaint focused on pulmonary damage. Considerably less impressed by the defense testimony than Schmidt was, the Appellate Division reinstated Cinquemani’s complaint. Cinquemani v. Old Slip Associates, LP (September 25)

TORT: Justice Allen Hurkin-Torres was unduly swayed by evidence produced by an elevator maintenance company suggesting that it was unaware of a problem with the car that allegedly injured Marva Fyall when it came to an abrupt stop out of line with the first floor. Whether the company had notice of an unsafe condition or not was beside the point, said the Appellate Division, which concluded that the misaligned stop was the sort of mishap that would not have ordinarily occurred in the absence of negligence. Since the maintenance contractor, Centennial Elevator, had exclusive responsibility for servicing the elevator in question, and since there was no indication that Fyall did anything to cause the accident, the facts add up to a case of liability against Centennial under the doctrine of res ipsa loquitur, and the plaintiff must be allowed to proceed to trial on that theory, the appellate panel said.  Fyall v. Centennial Elevator Industries Inc. (September 25)

INSURANCE: Justice Lewis Douglass let an insurer out of its obligation to indemnify a policyholder for no good reason, according to the Appellate Division. Douglass concluded that since the insured, Compass Construction, failed to give timely written notice of an accident at a worksite, Empire Fire was off the hook for the costs it shouldered to settle the resulting personal injury claim. Contrary to the judge's finding, however, oral notice was sufficient because the policy did not unambiguously call for notification in writing. Compass gave notice “as soon as practicable” through Empire’s agent, so the insurer can’t shirk its obligation to the policyholder, the appellate panel concluded. Douglass was correct in one respect: the agent owed no duty to Compass and deserved to be let out of the case. Compass Construction of New York v. Empire Fire & Marine Co. (September 25)

SENTENCING: Justice Louis Marrero imposed an excessive sentence of 15 years on Jose Echevarria following his plea of guilty to a second-degree burglary charge, said the Appellate Division, slicing Echevarria’s sentence in half. People v. Echevarria (September 25)

RICHMOND COUNTY

CONTRACT: Justice Robert Gigante punished a would-be buyer of real estate for failing to have enough funds to proceed with the purchase on the closing day by letting the seller pocket a $300,000 down payment. Never mind that the seller failed to hold up its end of the bargain. Just five days before closing, the seller produced a survey showing that the dimensions of the parcel were two to three feet shorter than promised, exceeding the 12-inch leeway allowed in the contract. That meant the title produced by the seller was invalid, said the Appellate Division, which reversed Gigante, assigned blame for the scuttled transaction to both parties and concluded that the prospective buyer should get her deposit back. Nowak v. Rametta (September 25)