The two Appellate Division departments that cover the five counties of New York City handed down just over 1,300 decisions in 2007 that reversed a trial court ruling in whole or in part. Just 11 percent of the appellate reversals were in criminal cases, and a majority of those concerned errors in sentencing. Only about 45 of the criminal reversals handed down in New York City in 2007 (give or take a handful, depending on how you are counting) were reversals of the highest order – ones that overturned all or most of a conviction.

The Appellate Division’s First Department, which covers Manhattan and the Bronx, managed to find twice as many conviction-reversing errors as the Second Department, including 17 in New York County and another 13 in Bronx County. The Second Department reversed 10 criminal convictions in Kings County, just five in Queens County and none in Richmond County in all of 2007.

Bronx County Justice David Stadtmauer and New York County Justice John Cataldo each picked up three reversals resulting in an overturned conviction in 2007. The other multiple offenders for the year were New York County Justice Charles J. Tejada and Queens County Justice Arthur Cooperman, with two such reversals each. The First Department closed out 2007 by overturning three convictions in the last two weeks, handing the judge in each case his first such reversal of the year.

In one of the cases, New York County Justice William A. Wetzel seems to have allowed a wily defendant to provoke him into committing a reversible error. William Rodriguez, who was on trial for robbery and burglary, had already switched attorneys twice, so Wetzel can hardly be blamed for suspecting that his demand for yet another new attorney, just as jury selection was getting underway, was a brazen stalling tactic. Certainly, the fact that he had already changed attorneys twice was a factor to be considered in assessing whether the latest request was justified or not, the Appellate Division said. But Wetzel “had no basis to completely cut off the discussion without hearing any explanation,” added the appellate panel, which was compelled to reverse Rodriguez’s conviction on all counts and the sentence of 20 years in prison because Wetzel did just that.  When Rodriguez said he didn’t want to proceed with his attorney, the judge “immediately admonished defendant for interrupting and emphatically informed him there would be no reassignment of counsel,” telling the defendant that he “would not discuss this subject further,” the appellate panel disapprovingly observed. People v. Rodriguez (December 20)

Justice Bruce Allen, also of New York County, was reversed for refusing to vacate a conviction he had entered against Louis Cyrus for robbery after a trial in which the defense attorney so badly bungled the job that it was clear to the Appellate Division that Cyrus did not get a fair trial. The attorney didn’t investigate a surveillance tape that supposedly captured the crime, yet attempted to cross-examine an officer about the tape anyway, opening the door to damaging testimony about its contents. He also failed to point out that when Cyrus was interrogated and supposedly gave a confession, he was in the throes of withdrawal from heroin. People v. Cyrus (December 18)

In the third most recent case, the Appellate Division tossed out a conviction and seven-year prison sentence that Bronx County Justice Dominic R. Massaro imposed on Charles Woods because the judge failed to inform him that the sentence would also include a five-year period of post-release supervision. Since Woods was kept in that dark about that part of the bargain, his participation in the deal cannot be considered voluntary, the appellate judges concluded. People v. Woods (December 18)

OTHER NOTABLE REVERSALS:

KINGS COUNTY

TORT: The Appellate Division’s Second Department ended the year with a salvo of opinions addressing one of its pet peeves: what it regards as an overly accommodating attitude towards personal injury claims exhibited by some Kings County judges. Appellate panels reversed three judges for letting plaintiffs who filed late claims slip through the gate despite having no good reason for missing statutory filing deadlines.

Justice Martin Solomon, the most oft-reversed judge on the Kings County bench in 2007, picked up his 16th reversal of the year for a ruling that the Appellate Division regarded as unduly sympathetic to the plaintiff (to go with five reversals on the year for rulings that favored the defense), when he allowed a mother and son to proceed with a late medical malpractice claim against the city. The case was based on alleged withholding of appropriate care while the boy was confined in a juvenile facility, but he and his mother waited more than 15 months after their claim accrued to commence legal action, and offered no excuse for the delay, the appellate panel said in reversing Solomon and dismissing the suit. Laroc v. City of New York (December 18)

Justice Joseph Levine was also reversed for allowing what an appellate panel considered an inexcusably late claim in a medical malpractice case. Levine evidently was persuaded by the plaintiff’s argument that the medical defendants had notice of the claim in their own hospital record, but the appellate judges disagreed. The medical records provided no notice of elevated levels of lead in the plaintiff's blood, so the defendants had no notice of the claim, which Levine should have dismissed as untimely, the appellate panel concluded. Aceituno v. Lai On Chan (December 18)

Justice Gerald Held was reversed for letting Lucille Etienne proceed with an uninsured motorist claim even though she failed to file a sworn statement with the insurance company within 90 days of the alleged hit-and-run accident, as required by the policy. Matter of Hanover Ins. Co. v. Etienne (December 18)

LABOR LAW: Second Department appellate panels reversed two other Kings County judges who handed down rulings in favor of workers who slipped on ladders in the workplace. Both judges may have been led astray, to hear the appellate panels tell it, by tall tales offered up by the workers about how their employers were to blame for their own sloppy habits on the job, which were actually to blame for their injuries.

Justice Lawrence Knipel had granted summary judgment on liability to Abul Kaylam Azad for injuries he claimed to sustain when a ladder slipped on garbage that was strewn in the alley where he was working. Azad didn’t explain why he hadn’t simply cleared a small place in the alley in the spot where he set up the ladder, so it was clearly his own action in placing the ladder on top of the debris that was to blame, said the appellate panel. Knipel therefore not only should not have granted summary judgment to Azad. He should have summarily dismissed Azad’s complaint, the appellate panel said. Azad v. 270 5th Realty Corp. (December 18)

Justice David Schmidt was reversed for committing a similar error in granting summary judgment on liability to Ronald Kozlowski for his fall from a ladder, which got slippery while he was using it to remove wallpaper and prepare walls for painting. Since Kozlowski arguably should have kept his shoes clean instead of allowing wallpaper paste to build up, he is not entitled to the summary judgment that Schmidt granted but deserves a chance to prove his case at trial, the Appellate Division said. Kozlowski v. Grammercy House Owners Corp. (December 18)

DAMAGES: Appellate Division panels modified 21 pain-and-suffering awards in 2007, boosting eight of them by a total of about $1.9 million but reducing the other 13 by nearly $18.6 million. Six of the modifications, including most of the big ones worth a total of $13.6 million, were from damage awards handed down in Bronx County. But Kings County led all five counties in the number of punitive-damage modifications, with a total of seven, including the last of the year.

In that case, Justice Arthur Schack’s award of $1.65 million for pain and suffering damages to Ashraff Ali for injuries that were blamed on the transit authority was found by the Appellate Division to be excessive. An appellate panel called for a stipulated verdict reducing the pain and suffering award to $600,000, but leaving intact the rest of the award of more than $3.5 million for future home care and other medical costs. Ali v. New York City Transit Authority (December 18)

NEW YORK COUNTY

As of late summer, Justice Richard B. Lowe III had twice as many reversals in the year to date as any of the other six judges assigned to the New York County Supreme Court’s Commercial Part, which handles complex commercial cases. In the last four months, Justice Charles E. Ramos closed the gap, ending the year with 18 total or partial reversals, including two in the final two weeks of the year. But Lowe, who added three reversals to his total in the last two weeks of the year, ended with a Commercial Part-leading total of 25 reversals for the year. Among the remaining four judges in the unit, Karla Moskowitz was reversed 15 times, Helen Freedman 14 times, Herman Cahn 11 times and Bernard Fried ended the year with seven reversals.

The last two reversals of the year for Justice Ramos came in cases in which the Appellate Division found that he erred in favor of the plaintiffs in Wall Street cases.

In a lawsuit involving an allegedly fraudulent hedge fund, Ramos allowed disgruntled investors to proceed with claims against the fund’s legal counsel and designated auditor. According to the Appellate Division, however, the law firm's legal advice to the fund was solely related to the fund's formation, not to the fund offering to investors, and in addition, the law firm's fiduciary responsibility was to the fund, not to plaintiffs, so Ramos should have dismissed their claim against the firm. The auditor, likewise, had no fiduciary relationship with the investors, so Ramos should have dismissed their claim against that defendant, as well, the Appellate Division said. Eurycleia Partners, LP v. Seward & Kissel, LLP (December 20)

Ramos was reversed a second time in the final two weeks of the year in a suit brought by plaintiffs who sold their memberships in the New York Stock Exchange shortly before the exchange announced a merger that greatly increased the value of exchange memberships. Ramos agreed with the plaintiffs that they had a viable claim for breach of fiduciary duty, but the Appellate Division noted that a corporation such as the stock exchange does not owe any fiduciary duty to its members or shareholders, so the claims brought by the former members of the exchange should have been summarily dismissed. Hyman v. New York Stock Exchange Inc. (December 18)

Justice Lowe picked up his last three reversals of the year in a diverse trio of cases.

In one case, Lowe ruled that the city is entitled to reimbursements totaling more than $500,000 from the Patrolmen's Benevolent Association for overpayments to a legal fund and welfare fund operated by the association. The Appellate Division reversed on grounds that the agreement between the city and association calling for regular contributions to the fund is riddled with ambiguities regarding whether the city is entitled to reimbursement for overpayments, so Lowe’s grant of summary judgment to the city should be reversed. Patrolmen's Benevolent Association of the City of New York, Inc. v. City of New York (December 20)

In two other cases, Lowe was reversed in part. In one case, he properly dismissed most of a suit alleging various breaches of a franchise agreement but failed to recognize that some of the claims were still viable. Emfore Corp. v. Blimpie Associates Ltd. (December 20)

In another case, Lowe correctly ruled against a cell phone company that was seeking past and future income under a license agreement that allowed it to install communications equipment on the roof of a residential cooperative. But Lowe erred in declaring that the cooperative is owner, based on adverse possession, of any transferable development rights to the roof.  Modified. Jumax Associates v. 350 Cabrini Owners Corp. (December 20)

SENTENCING: Justices Edwin Torres and Laura A. Ward imposed sentences on criminal defendants that were trimmed by the Appellate Division on grounds that they were excessively harsh. Torres imposed a 20-year prison term on a defendant who was convicted of three counts of first-degree burglary. And the appellate panel trimmed the sentence to 15 years behind bars. People v. DelaCruz (December 18)

Ward imposed a sentence of 3 to 9 years on a defendant who pleaded guilty to drug possession and sales charges, a prison term that the Appellate Division cut to 2 to 7 years. People v. DeFort (December 18)

QUEENS COUNTY
 
CIVIL PROCEDURE: The appellate division reversed half a dozen rulings in 2007 in which trial judges failed to properly evaluate claims by attorneys that they missed filing deadlines because of “law office failure.” More often that not in such cases, appellate panels put more stock in the excuse than the trial judges, as was the case in the last such reversal of the year. Justice Jeffrey Lebowitz entered a default judgment against Louis De Bartolo on a claim for attorney’s fees brought by his ex-wife after he and his attorneys failed to show up for a hearing, a lapse that De Bartolo’s attorneys blamed on law office failure. According to the Appellate Division, the claim was sufficiently “detailed and corroborated” that Lebowitz should have accepted it as a legitimate excuse and vacated the default judgment. The husband's opposition papers had been completed and notarized on time, the evidence showed, but an employee of the law firm simply failed to serve and file the papers on time. Moreover, that lapse was an isolated incident, and the ex-wife’s claim for fees was notably weak on the merits, the appellate panel observed in reversing Lebowitz and vacating the award of attorney’s fees. De Bartolo v. De Bartolo (December 18)

BRONX COUNTY

Justice Myrna Martinez-Perez was reversed in November for what the Appellate Division called a “precipitous” decision in awarding custody of a child to its father in violation of the mother’s rights. Martinez-Perez was reversed again in December for being much too lackadaisical about allegations that a mother, identified in the court ruling as Sylvia B., was abusing her children. The child himself reportedly told counselors that his mother struck him with a belt and metal buckle five times, but Martinez-Perez awarded custody to her anyway, without even conducting a hearing. A court may dispense with a hearing only where a change in custody is sought upon speculative and frivolous reasons, the appellate panel observed, but there certainly were legitimate reasons for the proposed change in this case, the appellate panel concluded. Sylvia B. v. Nelson R. (December 20)

VENUE: Justice Mary Ann Brigantti-Hughes ended up on the wrong side of a long-running dispute over whether the neighborhood on upper Broadway known as Marble Hill is part of New York County or part of the Bronx. Hughes opted for placing the neighborhood in the Bronx because the plaintiff’s postal service is provided by a Bronx post office, and Marble Hill residents use a Bronx zip code and telephone area code. The Appellate Division said those facts were trumped by the fact that the New York City Administrative Code explicitly states that Marble Hill is part of Manhattan. Brigantti-Hughes therefore erred in denying the defendant’s motion to change venue to New York County from the Bronx, said the Appellate Division, which was quick to add that no insult was intended. The ruling handing the neighborhood to Manhattan “in no way dims the luster of its neighbor to the north, the borough of universities, home of the Grand Concourse and the New York Yankees and the only county in the City of New York on the United States mainland. Nor does it diminish the accomplishments of its sons and daughters, who, over the generations, have contributed so much to this great City and State, and to the nation,” the appellate panel said. Montesano v. New York City Housing Authority (December 18)