In the most recent such case, Hausknecht issued a report asserting that Gerardo Pazmino should be allowed to bypass the no-fault insurance law and sue for damages because he suffered a “serious injury” in the traffic accident caused by the defendant, resulting in a permanent loss of range of motion in his spine. The doctor mentioned in passing that Pazmino had been involved in “several” other accidents since the collision at issue in this case. But Hausknecht made no attempt to describe what, if any, injuries he suffered in those mishaps and whether they contributed to his alleged permanent spinal deficiencies.

That didn’t seem to trouble Kurtz, who ruled that Pazmino should be allowed to proceed with his lawsuit. But a unanimous panel of the Appellate Division concluded that the doctor’s conclusions about the damage inflicted by the defendant “were clearly rendered speculative” by the unexplained subsequent accidents.

“Rather than address those accidents, Dr. Hausknecht simply concluded that the significant range of motion limitations in the plaintiff's cervical and lumbar spine, as well as the injuries noted in the plaintiff's magnetic resonance imaging reports, were the result of the subject accident,” observed the appellate panel, which rejected the doctor’s conclusion, reversed Kurtz, and kicked Pazmino’s claim out of court. Pazmino v. Universal Distributors, LLC (November 7)

OTHER NOTABLE REVERSALS

KINGS COUNTY

HOUSING: Justice Leon Ruchelsman may have been correct in concluding that the $400 monthly charge for rent for an apartment in Park Slope was well below market value. But that was irrelevant to the question that confronted him in a dispute involving the city’s rent control law, the Appellate Division said. The landlord who was sued in the case boosted the rent on Fred Ellis’s apartment from $300 a month to $400 in 2000 without entering into a renewal lease, as the law clearly requires. The law is equally clear that, under those circumstances, the Division of Housing and Community Renewal was justified in slapping the landlord with treble damages, leaving Ruchelsman with no good reason to overturn that determination, the appellate panel said. Matter of Ellis v. Division of Housing and Community Renewal of State of New York (November 7)

MEDICAL MALPRACTICE: For the third time this year, the Appellate Division reversed Justice Howard Ruditzky for giving a procrastinating plaintiff undeserved relief from a default judgment. In this case, Ruditzky vacated a default in favor of the defendant in a medical malpractice suit based on an excuse offered by the plaintiff’s attorney that the appellate panel rejected, without elaboration, as “unreasonable.” Francis v. Long Island College Hospital (November 7)

BRONX COUNTY

EMPLOYMENT: Justice Betty Owen Stinson threw out a viable discrimination claim by a Best Buy cashier along with other claims that were unsupported by the evidence and deserved to be summarily dismissed, the Appellate Division said. The cashier, Natoya Clayton, was unable to demonstrate that Best Buy participated in or approved of conduct by various employees who allegedly bothered her with sexual remarks and other inappropriate conduct. Therefore, Stinson was correct in concluding that the employer couldn’t be held to account for sex discrimination and sexual harassment under New York’s Human Rights Law. Nor were the off-color hijinks sufficiently outrageous to support Clayton’s claim of intentional infliction of emotional distress. On the other hand, the evidence was sufficient to support her claim that Best Buy retaliated against her for complaining by reducing her hours on the pretext that business had slowed, so she should have been allowed to proceed towards trial on that cause of action, the appellate panel concluded, reversing Stinson on that point and modifying the judgment accordingly. Clayton v. Best Buy Co., Inc. (November 8)

TORT: Justice Kenneth L. Thompson, Jr. was reversed for holding the police to account for a crash by a stolen car that occurred blocks away from the nearest ostensibly culpable officer. A police van that briefly took off after the stolen car clearly broke police department rules that bar pursuits by vans. That is apparently why Thompson refused to dismiss the lawsuit filed against police by the family of the innocent victim of the fatal crash. But as a unanimous panel of the Appellate Division observed, the crash occurred two minutes after the police ended their pursuit when the stolen car barreled through a red light, and therefore, the momentary lapse by an overeager officer can’t be blamed for the accident. Aqeel v. Tony Casale, Inc. (October 30)

NEW YORK COUNTY

INSURANCE: Justice Charles E. Ramos should have dismissed a legal malpractice claim filed by an excess-liability insurer against a law firm that allegedly bungled the defense of the policyholder in the underlying personal injury suit, the Appellate Division said. As the court explained in its unanimous ruling reversing Ramos, under New York law, attorneys are not liable to third parties for negligence in representing clients in the absence of evidence of a close connection between the third party – in this case the insurance company -- and the law firm. Federal Insurance Co. v. North American Specialty Insurance Co. (November 8)

LEGAL MALPRACTICE:  Justice Jane S. Solomon was too quick to dismiss a legal malpractice claim against a law firm that had represented David H. Engelke in the sale of a business and then represented the plaintiff in a suit against the company that acquired Engelke’s business, the Appellate Division said. Whether the law of New York or Florida applies, Engelke’s complaint sets forth viable claims for legal malpractice and breach of fiduciary duty against the law firm, the appellate panel concluded. Engelke v. Brown Rudnick Berlack Israels, LLP (November 8)

ATTORNEYS: Justice Karen S. Smith jumped the gun in disqualifying attorney Jeffrey Ween from representing Richard DeSilva in a case involving alleged slander of title, the Appellate Division said. There is no indication, at least at this stage of the litigation, that Ween will be a necessary witness in a related case involving allegations of encroachment and nuisance in connection with the same piece of property, so Smith should have rejected, at least for now, the defendant’s claim that the attorney has an insurmountable conflict. Plot Realty LLC v. DeSilva (November 8)

INSURANCE: Justice Walter B. Tolub was reversed for roping a Pennsylvania insurance company with no connections to New York into an uninsured motorist arbitration in the state. As the Appellate Division noted in overturning Tolub’s ruling, the insurer in question maintains no offices, bank accounts or sales agents in New York, and does not own real estate or have a license to do business in New York, nor is the driver of the offending vehicle a resident of this state. It is true that he has driven a car in New York, but that does not amount to the sort of "purposeful activity" needed to give Tolub jurisdiction over the company, the appellate panel concluded. Matter of American Transit Insurance Co. v. Hoque (November 8)

QUEENS COUNTY

TORT: Justice Phyllis Flug put too much credence in the unfounded report of a plaintiff’s investigator in allowing Keith McCabe to proceed with a suit for a broken ankle he suffered in a baseball game, the Appellate Division said. McCabe blamed his injury, which occurred when he slid into second base, on the fact that the base was fixed in place. He filed a suit for damages against the Little League division and also against the city parks department. Trouble is, there was no evidence of negligence on the parks department’s part, the appellate judge said. And officials with the Little League insisted in depositions that they never used immovable bases on playing fields because they are too dangerous. McCabe attempted to refute that testimony with a report by an investigator who inspected the baseball diamond where the accident occurred and found that the bases were fixed in place. That apparently struck Flug as compelling evidence. But the appellate panel noted that the inspection by the plaintiff’s investigator took place after the Little League's permit had expired and it was no longer using the field. The expert therefore had no foundation for opining about the condition of the field at the time of the accident. So Flug should have rejected his testimony and summarily dismissed the case, the appellate panel concluded. McCabe v. City of New York (November 7)