Judicial Reports:
Custodial Scrutiny
By Mark Thompson
Posted 12-19-07
New York County Family Court Judge Sara P. Schechter’s finding that a mother identified as Josefina C. neglected her children got “due deference” from the Appellate Division. Or so a unanimous panel of the appellate court dutifully said in a ruling which ultimately concluded that Schechter’s finding flew in the face of the evidence laid out before her in a fact-finding hearing.
Josefina’s apartment was “messy,” the appellate panel conceded. And her 16-month-old daughter suffered “a minor burn on her bottom.” But according to the uncontradicted testimony, the injury occurred when she touched an uncovered steam pipe while she was bouncing and playing on a bed with her father and sister, and it was promptly treated. Neither that nor the condition of the apartment supported the finding of neglect, the appellate panel concluded, reversing Schechter and dismissing the neglect petition. Matter of Allison B. v Josefina C. (December 13)
The Appellate Division rarely overrules a decision of a Family Court judge who, after hearing all the evidence and sizing up the witnesses face to face, concludes that a child is a victim of parental neglect. But the appellate panel that reviewed Schechter’s ruling probably found it somewhat easier to give her finding in that case somewhat less deference than the conclusions of judges in such cases ordinarily warrant. That’s because Schechter gets it wrong, in the eyes of the Appellate Division, far more often than most.
The ruling in Josefina’s case, in fact, was the second reversal handed out to Schechter that day, and her sixth reversal of the year in a case involving children from broken or troubled homes. There have been just 32 reversals in such cases citywide in the year to date.
In the second case in which she was most recently reversed, Schechter ruled that a father identified as Clarence D. harassed Ebony J., the mother of their child. As a result, Schechter slapped a two-year order of protection on Clarence, imposing unspecified restrictions on his access to his child. Schechter didn’t say whether she thought he had committed second- or first-degree harassment. According to the Appellate Division, the evidence presented at the fact-finding hearing did not support a finding of harassment in either degree.
There was no evidence of any physical contact between the parties on the date when the conduct that was the basis for the family offense petition allegedly occurred, so there was no basis for a finding of first-degree harassment. Nor was there evidence that Clarence engaged in conduct intended to harass, annoy or alarm, which is required to support a finding of harassment in the second degree. Clarence showed up at her home that day. But Ebony had given him her address so that he could visit his child. She claimed he threatened her, but she didn’t file a police report, and she admitted that she called him later that day.
Schechter, in short, had no good reason to issue a protective order, the appellate panel concluded, reversing her finding and vacating the order. Matter of Ebony J. v Clarence D. (December 13)
In other cases this year, Schechter was reversed on Nov. 1 for a finding of neglect against parents who kept an autistic child out of school for 14 days while seeking a special education placement for him and for failing to take another child to the doctor after he suffered a minor scrape in a fall.
She was reversed on Sept. 13 for continuing with a custody proceeding in the absence of a mother and her attorney, and on Aug. 23 for putting two teenagers up for adoption with no viable plan to make that actually happen, given that they were resistant to the idea. On March 27, Schechter was reversed for denying the request of an adoptive boy to locate and visit his sisters. The judge explained that they had no relationship, but according to the Appellate Division, she didn’t consider the possibility that they had been prevented from contacting each other against their will.
OTHER NOTABLE REVERSALS
KINGS COUNTY
MEDICAL MALPRACTICE: Justice Bernadette Bayne wasn’t shy about letting it be known that she was fond of Patrick DeCrescenzo, a child suing for damages in a medical malpractice case in her court. While the jury watched, she gave him a present. The jurors, too, each got a gift from the judge before a holiday recess. During the lengthy and acrimonious trial, Bayne made it equally clear, in the Appellate Division’s view, that her fondness didn’t extend to the defendant, Dr. Orlando Gonzalez, or to the legal team defending him and the hospital where he worked.
Throughout the proceeding, Bayne “demonstrated a propensity to admonish the defense counsel at a substantially more frequent rate than she did the plaintiffs' counsel, often admonishing the defense counsel for actions about which she failed to comment when committed by the plaintiffs' counsel,” the appellate panel wrote. Bayne also gave the plaintiffs' attorney “significantly more leeway in cross-examining witnesses and in making extraneous comments than she gave the defense counsel.”
The cumulative effect of Bayne’s improper conduct, the appellate panel concluded, denied Dr. Gonzalez a fair trial and swayed jurors to such an extent that they “could not have considered the issues at trial in a fair, calm, and unprejudiced manner.” One possible indicator of that was the damage award exceeding $20 million. That apparently was too much even for Bayne, who reduced the award to around $14 million in a stipulated verdict. Her post-trial gesture didn’t begin to undo the damage in the view of the Appellate Division, which reversed the judgment and sent the case back for a new trial, pointedly insisting that it should be sent this time to a different judge. DeCrescenzo v Gonzalez (December 11)
TORT: Justice David Vaughan evidently didn’t need much convincing that Beth Israel Medical Center was liable for causing Bartolo Lopez emotional and psychological distress. The judge granted partial summary judgment on liability to Lopez, leaving only the amount of damages to be considered, after hearing the plaintiff’s tale. Lopez had learned from the Social Security Administration, which was in the process of reviewing his disability claim, that the medical center had discovered that he had tested positive for HIV. He immediately got another blood test, and received the results two weeks later, which revealed that in fact he was free of HIV. The medical center, it turned out, had mixed his filed up with that of another patient, resulting in the false alarm. The Appellate Division didn’t dispute his story. But it didn’t add up to enough proof to support Vaughan’s summary judgment in his favor, concluded the unanimous appellate panel, which sent the case back to court for further proceedings. Lopez v Beth Israel Medical Center (December 11)
QUEENS COUNTY
CRIMINAL EVIDENCE: Justice John Latella let the prosecution get away with introducing evidence against Robert Trott that had been ruled inadmissible in a pretrial hearing, forcing the Appellate Division to reverse Trott’s conviction for selling $60 worth of cocaine to an undercover officer. At the evidentiary hearing, a judge ruled that the undercover officer could not testify about his purported identification of the defendant on the date of his arrest, one week after the drug sale, because the judge found that the officer was subjected to an “unduly suggestive pretrial identification procedure.” That didn’t stop the prosecutor from eliciting testimony from the officer that permitted the jury to infer that he had identified the defendant when he was arrested. Latella brushed aside the defense attorney’s objection, but the appellate panel wasn't so blasé about it. The prosecutor’s questioning of his chief witness “not only violated the hearing court's suppression ruling, but it also constituted impermissible bolstering,” the Appellate Division said. The error was not harmless because the only evidence against Trott was the officer’s in-count identification of him, said the appellate panel, reversing Latella and vacating the conviction. People v Trott (December 11)
CIVIL PROCEDURE: Justice Martin Schulman was reversed for allowing a litigant to back out of a settlement of a dispute over the partition of real estate more than a year and a half after sealing the deal. Deonarine Ramnarain reached the settlement with a relative without reserving any right to appeal. But Schulman let him renege on the deal anyway. That might have been permissible if he had offered evidence that the settlement agreement was the product of fraud, collusion or mistake. But there was no evidence of any such shenanigans, the appellate panel observed, reversing Schulman and dismissing the suit that Schulman had allowed Ramnarian to restore to the trial calendar. Ramnarain v Ramnarain (December 11)
RICHMOND COUNTY
INSURANCE: Justice Philip Minardo erred, at least according to three of five appellate judges, when he allowed Continental Casualty to show the door to a policyholder who appeared to be determined to make it as hard as possible for the insurer to defend him in a lawsuit. The appellate panel majority agreed that the defendant in the underlying action, Terrance Stradford, was guilty of “willful and avowed obstruction.” But in the majority’s view, Continental tolerated his behavior for so long that by the time they got around to disclaiming coverage, they were a bit too late. For six years, Stradford ignored numerous letters and phone calls from the insurer and its lawyers, repeatedly refused to provide requested documents, records, and evidence, failed to appear for scheduled depositions and meetings, and unreasonably refused to consent to a recommended settlement. Though Stradford himself at one point requested a new attorney, he refused to execute stipulations consenting to a change of attorney. Continental’s seemingly bottomless patience finally ran out after several letters to Stradford were returned unclaimed. Two months later, the insurer notified him that the company was formally disclaiming coverage in the case. In his ruling, Minardo granted summary judgment to Continental on its motion seeking a declaration that it had no obligation to defend or indemnify Stradford in the suit, but the appellate division majority reversed. The disclaimer of coverage was untimely, the panel majority concluded, citing Continental’s two-month wait after its final letters were returned. Two of the five judges on the appellate panel voted to uphold Minardo and sharply disputed the majority opinion, asserting that it leaves insurer companies “trapped between the proverbial rock and a hard place.” The ruling will “encourage precipitous disclaimers, contrary to the public policy of requiring the carrier to make diligent efforts and to defer the decision to disclaim until after the insured has demonstrated ‘willful and avowed obstruction’,” the dissenters explained. Continental Casualty Co. v Stradford (December 11)
BRONX COUNTY
TORT: Justice Wilma Guzman might benefit from a refresher course on the section in driver’s ed concerning safe spacing between moving cars, to hear the Appellate Division tell it. Though there was no question that Arshad Rehmat, the defendant in a case in her court, had rear-ended the plaintiff, David Sosa, after Sosa brought his car to a sudden stop, Guzman wasn’t convinced that Rehmat was at fault. After all, he testified that his car was 15 feet behind Sosa’s car as both vehicles proceeded down the street at the speed limit. It was never established exactly how fast they were going, other than that they were “moving well.” But 15 feet was clearly not enough spacing, said the appellate panel, which concluded that Guzman should have granted partial summary judgment on liability to Sosa. Sosa v Rehmat (December 11)
NEW YORK COUNTY
TORT: Justice Alice Schlesinger allowed a suit to proceed against the owner of an apartment building based on what the Appellate Division regarded as rank speculation about the cause of a tenant’s fatal fall from his fourth-floor apartment. The lawsuit alleged that a sliding glass door was defective, but there were no witnesses, and no evidence that the alleged defects had anything to do with the tenant’s death. Thus, the lawsuit failed to raise any triable issues regarding the building owner’s liability, and Schlesinger should have summarily dismissed the suit, the appellate panel concluded. Morris v Solow Management Corp. Townhouse Co., L.L.C. (December 13)
Posted by Ennis on December 19, 2007 12:53 AM to Judicial Reports