The most oft-reversed of the bunch, Justice Martin Solomon, has been reversed in full or in part 17 times this year, including 13 times for pro-plaintiff rulings. In the latest such case, Solomon allowed Tadeusz Karwowski to proceed to trial with a claim for a slip and fall on subway stairs, even though he couldn’t say exactly what tripped him up. “In the absence of such evidence, the jury could not return a verdict in favor of the plaintiff without engaging in improper speculation as to the cause of the accident,” the Appellate Division said, reversing Solomon and dismissing the suit. Karwowski v. New York City Transit Authority (October 16)

Justice Sylvia Hinds-Radix, another judge who is often at odds with the Appellate Division, has been reversed 16 times so far this year, including 12 times for rulings that favored plaintiffs. Her latest reversal came in a case in which she allowed Keith Groves to file a late notice of claim six months after he was allegedly assaulted by a bus driver. He blamed his late filing on the fact that he wasn’t aware of the 90-day time limit and the lawyer who initially agreed to take his case backed out, an excuse which passed muster with Hinds-Radix but not with the five appellate judges who reviewed the case. The transit authority would be prejudiced by the delay because it had no prior notice of the alleged incident, so this was not a case in which the plaintiff deserved leeway, the appellate judges explained. Matter of Groves v. New York City Transit Authority (October 16)

Justice Martin Schneier’s 16 reversals in the year to date are evenly split between rulings that favored the prosecution and defense. In the most recent case, he was reversed for allowing a plaintiff who tripped over computer wires in a classroom to proceed with discovery against a computer service company that had done wiring at the school four years earlier, but in a room that housed computer servers, not in the classroom where the plaintiff was injured. According to the Appellate Division, Schneier erred in concluding that further discovery was needed to determine whether the computer service company bore any blame for the plaintiff’s injuries. Camoia v. Custom Computer Specialists, Inc. (October 16)

Justices Howard Ruditzky, Phyllis Flug and Laura Jacobson have been reversed 22 times between them so far this year. In 16 of those cases, their rulings that got reversed were in favor of the plaintiff. Ruditzky’s latest reversal came in a case in which he vacated a default judgment entered against a plaintiff who had allowed his case to languish. Ruditzky accepted an excuse for the plaintiff’s delay in pursuing the case that the appellate panel dismissed as a “conclusory, undetailed, and uncorroborated claim” that his lawyer had somehow dropped the ball. Lugauer v. Forest City Ratner Co. (October 16)

Justice Flug similarly gave more slack to a procrastinating plaintiff than the appellate division was willing to tolerate, allowing a late notice of claim on behalf of infant plaintiff a full decade after the alleged medical malpractice that gave rise to his injuries. Bucknor v. New York City Health and Hospitals Corp. (October 16)

Jacobson’s error in a personal injury case compelled the Appellate Division to vacate a jury’s award of nearly $1 million in damages to Erica Ruiz, who tripped on an obvious hole in the carpet at the top of a staircase, tumbled down the stairs and severely broke her ankle. According to the Appellate Division, Jacobson should have instructed the jurors that if they concluded that the hazard was “open and obvious,” the landlord had no duty to warn about it. Ruiz v. Hart Elm Corp. (October 16)

OTHER NOTABLE REVERSALS

KINGS COUNTY

Not all of the Second Department’s reversals of Kings County rulings cut against the plaintiff.

TORT: Justice Patricia Satterfield was reversed for too hastily dismissing a personal injury suit against a landlord who kept a refrigerator in a narrow stairway for more than a month before Cidia Fabish allegedly fell while trying to squeeze past it to get to her apartment. That landlord, who admittedly was aware that Fabish had complained several times about the refrigerator, did not made out a case warranting summary judgment in its favor, the Appellate Division said. Fabish v. Garden Bay Manor Condominium (October 16)

TORT: Justice Lawrence Knipel properly denied the motion by the estate of Colleen Boskin for leave to file a late notice of claim against the city and the police department because those defendants had no prior notice of the accident at issue in the case and therefore would be prejudiced by the late claim. However, in the case of another defendant, the transit authority, its employees were directly involved in the events leading up to and culminating in Boskin's electrocution. So the transit agency had reasonable notice from which it could infer that it was potentially liable, and since the complaint appear to have merit, Knipel should have allowed the plaintiff to file a late claim against that defendant, the appellate judges said. Matter of Boskin v. New York City Transit Authority (October 16)

BRONX COUNTY

TORT: Justice Janice L. Bowman found open questions where the Appellate Division found none regarding whether the city was to blame for the injuries sustained by a pedestrian, who was hit by a car that jumped a curb.  As Bowman saw it, Djelina Lekutanovic has a viable argument that the city should have installed metal guardrails around the parking lot. But the Appellate Division said the parking lot, bordered as it was by ordinary curbs, was reasonably safe for those who obey the rules of the road, and Bowman should have let the city out of Lekutanovic’s personal injury lawsuit. Lekutanovic v. City of New York (October 16)

TORT: Justice Douglas E. McKeon allowed Elizabeth Joseph to proceed to trial in a slip and fall case against a carpet store based on a claim that according to the Appellate Division boiled down to “rank speculation.” Joseph asserted that the store should be held liable for a slippery sidewalk because the store’s effort to remove snow made conditions worse. In fact, said the Appellate Division, while the store's efforts to remove snow from the adjacent sidewalk were incomplete, Joseph offered no evidence that the effort made the sidewalk any more hazardous than it would have been, and her claim should have been dismissed. Joseph v. Pitkin Carpet, Inc. (October 16)

CRIMINAL: Justice Edward M. Davidowitz prevented Manuel DeJesus from presenting evidence that could have persuaded the jury he wasn't guilty of the most serious drug-sale charge he faced, said the Appellate Division. Given the paucity of other evidence, the appellate panel was compelled to vacate his conviction on that count. Davidowitz erred in denying the defendant’s motion to reopen the case to allow testimony from a witness who would have explained that people other than DeJesus had keys to a truck in which drugs were found that defendant was convicted of constructively possessing. Because of the paucity of evidence linking DeJesus to the drugs in the trunk, the additional testimony could have created reasonable doubt about his guilt on the criminal possession count and therefore, the error by Davidowitz was not harmless, the appellate panel concluded. People v. DeJesus (October 16)

NEW YORK COUNTY

LANDLORD/TENANT: Bianca Jagger got more satisfaction from Justice Leland DeGrasse in a dispute over a rent controlled apartment than she was entitled to get, at least according to three of the five judges on an Appellate Division panel that reviewed the case. DeGrasse and the two dissenters who sided with him saw no reason why Jagger shouldn’t be able to claim for visa purposes that her “permanent residence” is in England while at the same time claiming her “primary residence” is a rent-controlled apartment in New York.  The majority disagreed, ruling that DeGrasse should have granted summary judgment to the landlord in this action to eject Jagger from her apartment on grounds that it is her nonprimary residence. Katz Park Avenue Corp. v. Jagger (October 18)

SENTENCING: Justice Arlene D. Goldberg correctly discerned that Joel Vasquez deserved to be resentenced under the 2005 Drug Law Reform Act. But the reduced term of nine years that she imposed was still excessive, said the Appellate Division,which reduced the term to six years. People v. Vasquez (October 16)

SENTENCING: Justice Edward J. McLaughlin sentenced Johnny Rios too harshly, according to the Appellate Division, which cut the 37-year sentence imposed on defendant for his conviction on charges of attempted sodomy, sexual abuse and public lewdness, by directing that all sentences run concurrently, resulting in a new aggregate term of 15 years. Modified. People v. Rios (October 18)

QUEENS COUNTY

MEDICAL MALPRACTICE: Justice Valerie Brathwaite Nelson should have dismissed the claim against a doctor filed by survivors of a patient who allegedly sustained fatal injuries when he fell from his bed in a nursing home, the Appellate Division said. The doctor proved to the satisfaction of a unanimous appellate panel that he had ordered the use of side rails on the decedent's bed in order to prevent exactly the sort of accident that happened, so Nelson should have let the doctor out of the suit. Kane v. Ausubel (October 9)

JURORS: Justice Ronald Hollie committed a reversible error when he replaced two regular jurors with two alternate jurors, after jury deliberations had begun, without obtaining written consent signed by the defendant in open court in the presence of the judge, as required by law. Even prosecutors conceded that Hollie’s screw-up compelled the Appellate Division to vacate the conviction of Robert Martin on charges of robbery, tampering with a witness and intimidating a victim or witness. People v. Martin (October 9)

LEGAL MALPRACTICE: Justice Joseph P. Dorsa should have granted the motion of attorney Andrew P. Jones to vacate his default in answering a legal malpractice complaint, and Dorsa should have dismissed the complaint for lack of personal jurisdiction, the Appellate Division said. The plaintiff’s unsuccessful attempt to serve the summons and complaint at the attorney’s law office, even though it appeared to be vacant, did not constituted "due diligence" under the circumstances, the appellate panel concluded. Jones, after all, was suspended from the practice of law at the time of the attempted service of process. The affidavit of service does not mention any efforts by the plaintiff to finds out where Jones lives and to serve process at that location. Estate of Edward S. Waterman v. Jones (October 16)

TORT: Justice Thomas Polizzi was too quick to let the condominium board off the hook for a personal injury suit brought by Maria Soto-Lopez, who slipped on a greasy spot in a common area. As the Appellate Division noted, “The defendants offered no evidence to establish when the area in question was last inspected or cleaned on the day of the accident, and their submissions reveal the existence of a triable issue of fact as to whether they had constructive notice of the alleged greasy substance which caused the plaintiff to fall.” Soto-Lopez v. Board of Managers of Crescent Tower Condominium (October 16)