The attorney’s excuse was that some sort of “glitch” in his law office computer caused it to tell him that the hearing was in Nassau County, and that’s why he missed the hearing at the courthouse in the Bronx.  That excuse was offered up “without any further explanation as to any other actions counsel took, such as appearing in Nassau County, or what they did upon discovery of the ‘computer glitch.’ Nevertheless, this amounts to law office failure, which is a recognized excuse for vacatur of a default,” said the all-forgiving appellate panel, reversing Thompson and vacating the default. Matter of Lancer Insurance Co. v. Rovira (November 20)

In three other rulings handed down on the same day, Appellate Division panels adopted a more characteristically stern stance towards dilatory, bumbling and oblivious litigants whom kinder-hearted trial judges had been inclined to forgive for their defaults.

Queens County Justice Augustus Agate was reversed for vacating a default judgment against Viorika Vicki Anka in a suit for fraud and conversion after buying her story that she was never served with the summons and complaint. The story didn’t hold water, as far as the Appellate Division was concerned. The process server's sworn affidavit of service indicated that the paperwork was served by mail, and in person to a female adult, at the address which Anka admitted was her home. In response, Anka simply said no adult female relative of hers was “residing” at the house at the time. But she didn’t say no such person could have been there that day, nor did she explain why she didn’t respond to the suit when she was informed about it by a lawyer in a related case in the Surrogate’s Court. Still, the excuse was good enough for Agate. He not only vacated the default against Anka, Agate also slapped sanctions on the plaintiff for frivolous litigation in the proceedings that followed the judge’s decision to send the case back to court. Agate was way out of line, according to the Appellate Division. Rejecting Anka’s unsupported claim that she was never served with the suit, the appellate panel reinstated the default judgment and also vacated the award of sanctions imposed on the plaintiff. To carry out its orders, the appellate panel remanded the case to the Supreme Court, pointedly insisting that it must be handled by a different judge. Roberts v. Anka (November 20)

Kings County Justice Sylvia Hinds-Radix was also reversed for letting a defendant weasel out of a default judgment. Fulton Street Realty Venture blamed its insurance carrier for dropping the ball, an excuse that was good enough for Hinds-Radix but not for a unanimous appellate panel. Grinage v. City of New York (November 20)

Bronx County Justice Paul A. Victor was reversed for the third time this year for being too forgiving of procrastination by plaintiffs with claims against city agencies. In the most recent case, Victor gave Michael Doddy one break too many for missing filing deadlines. He granted Doddy leave to file a late notice of claim, which didn’t seem to trouble the Appellate Division. But when Doddy proceeded to miss the next deadline for following up the notice of claim with a lawsuit, Victor’s willingness to forgive again was too much for the appellate panel. The statute of limitations had expired, and the claim should have been summarily dismissed as time-barred, the appellate judges said. Doddy v. City of New York (November 20)

OTHER NOTABLE REVERSALS

NEW YORK COUNTY

SECURITIES: For the second time this year, Justice Karla Moskowitz was reversed for overextending the statute of limitations to keep alive causes of action in a lawsuit stemming from the collapse of the Lipper Convertibles hedge fund. In this case, she ruled that the Lipper partnership and its founder, Kenneth Lipper, filed a timely accounting malpractice claim against PricewaterhouseCoopers in 2005 for allegedly shoddy audits conducted between 1995 and 2000. The statute of limitations had not expired, according to Moskowitz, because the accounting firm provided ongoing representation even after delivering the last of the allegedly flawed audit reports in 2001. Not so, said the Appellate Division. The accounting firm’s ongoing work for Lipper had nothing to do with the audits in question. Therefore, the statute of limitations started to run when the fund managers received that last audit report in 2001, and it had expired by the time the Lipper plaintiffs got to court, the appellate panel concluded. Serino v. Lipper (November 20)

Back in June, Moskowitz was reversed by an appellate panel for overextending the statute of limitations to keep alive a claim by the hedge fund’s liquidating trustee seeking to recover distributions paid to limited partners in the fund. Williamson v. Culbro Corp. Pension Fund (June 19)

ARBITRATION: In another recent case, an appellate panel rapped Moskowitz for overstepping her prerogatives as a trial judge in second-guessing an arbitration panel’s decision allowing a group of plaintiffs to proceed with a class arbitration against a health plan. Even if the panel’s split decision on that issue was wrong on the law, at least the arbitrators carefully considered the points and authorities offered by both sides before making their decision, the appellate panel said. Therefore, they did not act in “manifest disregard of the law,” which is what the Federal Arbitration Act requires before a trial judge can step in and vacate an arbitration award. Cheng v. Oxford Health Plans, Inc. (November 13)

TORT: Justice Robert D. Lippmann, who regularly gets reversed for summarily dismissing claims against transit agencies, added to his tally of such reversals in a case brought by an 84-year-old bus passenger named Grace DiSalvatore. Limppmann didn’t think her description of the bus’s movement, while she was making her way down the aisle to a seat, depicted anything other than the normal motions of a city bus underway. The Appellate Division, however, focused on words in DiSalvatore’s testimony such as "shakily," "speeding," and "swaying" to conjure up a picture of bus movement that was “extraordinary and violent,” the threshold a passenger must get past to proceed with a lawsuit blaming injuries on a bus driver’s negligence. Reversing Lippmann, the appellate panel reinstated the elderly passenger’s claim. DiSalvatore v. New York City Transit Authority (November 15)

FINANCE: Justice Richard B. Lowe III picked up reversals in two cases in which he tried to give breaks to beleaguered mortgage lenders. In one case, he sought to spare the mortgagees from the prospect of facing a jury in a suit brought by plaintiffs who are seeking to rescind mortgages. Lowe bought the lenders’ argument that since the plaintiffs were seeking equitable relief including an injunction, they had no right to a jury trial. The Appellate Division found, to the contrary, that since all of the equitable relief sought by plaintiffs was incidental to their contract rescission claim, they had not waived their right to a trial by jury. Decana Inc. v. Contogouris (November 13)

In the second case, brought by plaintiffs claiming that mortgage lenders breached a number of warranties and representations, Lowe properly dismissed claims related to five of the seven mortgages at issue on grounds that the plaintiffs had access to the same information as the defendants and therefore could have seen for themselves that the loans were ill advised. Lowe also correctly concluded that the lender was at fault for making misrepresentations regarding two of the mortgages, the Appellate Division said. But Lowe erred, according to the appellate panel, in concluding that the plaintiffs weren’t entitled to any damages because they failed to take any steps to mitigate their loss. Since there was no evidence that the plaintiffs could have done anything to avoid all financial injury, they are entitled to some compensation, the appellate panel reasoned, sending the case back to Lowe for a calculation of damages. LaSalle Bank National Association v. Nomura Asset Capital Corp. (November 13)

KINGS COUNTY

TORT: The Appellate Division’s Second Department tossed out a couple more Brooklyn slip-and-fall lawsuits that had gotten a green light from trial judges. Justice Laura Jacobson erred, according to an appellate panel, in allowing Maya Jones to proceed with a suit against Brooklyn Union Gas for her trip and fall in a hole in the sidewalk surrounding a gas valve belonging to the defendant. The company demonstrated that it hadn’t done any work in the area in the two years prior to the accident, which proved to the appellate judges’ satisfaction that there was no negligence on the gas company’s part that Jones could blame for her stumble. Jones v. City of New York (November 20)

Justice Martin Solomon was reversed for allowing Mary Noia to sue the adjacent landowner for her trip and fall on a gas valve cover on a public sidewalk. The defendant, Maria Maselli, demonstrated that she did not have exclusive access to or the ability to exercise control over the purported obstruction and therefore, according to the Appellate Division, Solomon should have let her out of the lawsuit. Noia v. Maselli (November 20)

QUEENS COUNTY

FAMILY: Justice Marybeth Richroath rejected a mother’s bid to win back custody of her two children in the face of evidence that according to the Appellate Division cried out for a contrary ruling. A caseworker from the city’s child protective agency testified that the mother had attended parenting classes, was demonstrating that she could care for her children and was not a danger to them, so they should be returned to her forthwith, the appellate panel said. Matter of Jeremiah L. v. Monique J. (November 20)

MEDICAL MALPRACTICE: Justice Allan Weiss approved a jury award in a medical malpractice case that was way out of line with what the Appellate Division thought was reasonable compensation for the injury at issue: a scar on the forehead of a baby inflicted by an errant incision during a delivery by C-section. Weiss correctly ruled that the doctor in charge of the delivery was fully liable, though a third-year resident under his supervision actually made the fateful cut. But Weiss should have stepped in and reduced the jury’s award of $550,000 for past and future pain and suffering. At the time of the trial three years after the birth, the child had a two-inch scar, but it was “near the hairline, and not readily noticeable,” and it had lightened over time, the appellate judges observed. For that, an award of $125,000 for pain and suffering was about right in the estimation of the appellate panel. If the plaintiffs won’t agree to a stipulated award in that amount, the case will be sent back to court for a new trial on damages. Ross v. Mandeville (November 20)

ZONING: Justice Peter Kelly prematurely liberated the Abundant Life Alliance Church in College Point from the clutches of city planners. Despite what Kelly seems to think, the church hasn’t yet proved that its land use application should be certified by the city, the Appellate Division said. City of New York v. Abundant Life Alliance Church of N. Y. (November 20)

RICHMOND COUNTY

TORT: Justice Eric Vitaliano approved a jury award of $43,333 to James Smith for his future pain and suffering, a sum that struck the Appellate Division as grossly skimpy. The jury, after all, had correctly seen fit to award $460,000 for past pain and suffering for Smith’s serious injuries, which weren’t described to the appellate decision. The award for future damages was so out of line with the award for past pain that it defied explanation, the appellate panel said. Unless the defendants stipulate to an increased award of $300,000 for future pain and suffering, the case should be sent back to court for a new trial on damages, the panel concluded. Smith v. Sheehy (November 13)