In one of the cases, the Appellate Division faulted Rivera for holding a commercial tenant in a building accountable for the condition of exterior stairs. Marietta Quarless slipped and fell on the allegedly hazardous stairs outside of a shop called House of Styles, and Rivera allowed her to proceed to trial to seek damages against the shop and its proprietor. The appellate panel, noting that the House of Styles did not make any “special use” of the stairs that would have give the shop a duty to keep them safe, and the tenant had no contractual obligation to repair the alleged structural defect that caused Quarless to take her tumble. So Rivera should have let that defendant off the hook, according to the appellate judges. Quarless v. Dengler (February 5)

Chandan Sharma is another plaintiff whose complaint passed muster with Rivera, only to get kicked out of court by a unanimous panel of appellate judges. Rivera was persuaded that Sharma offered sufficient evidence that he had incurred a “serious injury” in a traffic accident which would allowed him to bypass the no-fault compensation system and sue for damages in court. The Appellate Division, however, noted that even Sharma’s own treating physician concluded that within three months of the accident, he had a full range of motion in his spine. Another doctor who conducted range of motion tests backed up the plaintiff’s assertion that he suffered an injury that met the statutory definition of “serious,” but the appellate division dismissed that report because it was unaffirmed and also because it failed to compare the findings to  normal ranges of motion. Sharma v. Diaz (February 5)

In a third case that resulted in a Super Tuesday reversal, Rivera erred, according to the Appellate Division, in granting an insurer’s motion to summarily dismiss an insurance claim on grounds of an exclusion for damage from overflowing drain pipes. The damage at issue was, indeed, caused by water flowing from a drain pipe. But the failure occurred because the pipe got clogged up with construction debris and pressure from the column of water that backed up when a rooftop tank was emptied causing the pipe to separate somewhere inside the building, releasing water into the lower floors. That wasn’t the same as water overflowing from a drain, said the Appellate Division, reversing Rivera and reinstating the claim against the insurer. Junius Development, Inc. v. New York Marine & General Insurance Co. (February 5)

In the fourth reversal of the day, the Appellate Division said Rivera committed a procedural error when he tossed out the defendant’s counterclaims along with the plaintiff’s complaint, which sought title to a parcel of real property by adverse possession. The counterclaims “remained viable, independent causes of action,” so Rivera should have granted the defendant’s motion to sever them from the case and let them proceed on their own, the appellate panel said. Hawkins-Bond v. Konefsky (February 5)

OTHER NOTABLE REVERSALS

NEW YORK COUNTY

LABOR LAW: Justice Walter B. Tolub fixated on the fact that there was nothing wrong with the ladder from which Edward Cohen took a tumble in a workplace accident. According to the majority of an Appellate Division panel, he should have focused instead on the fact that the ladder provided by his employer was too small for the room where he was working on wiring in the ceiling, and as a result, when it was wedged into the tight space, a pipe blocked the bottom rung. That forced Cohen to step from the second rung all the way to the floor as he was descending after finishing his task, a maneuver that caused him to fall and injure himself. According to four of the five judges on the appellate panel, the ladder, though sound in its own right, was inadequate for Cohen’s work. That meant the employer violated the Labor Law provision requiring workers to be supplied with proper protection from elevation-related risks, and Tolub should have granted Cohen’s motion for summary judgment on liability. A dissenter disagreed, explaining in a lengthy opinion that Tolub’s view of the case was consistent with rulings of the Court of Appeals. The ladder allowed Cohen to safely complete his work on the ceiling, and that’s all the Labor Law provision in question requires, said the dissenter, who added that the appellate majority’s ruling extends the Labor Law provision beyond its intended, narrow purpose, something the state’s high court has repeatedly warned against. Cohen v. Memorial Sloan-Kettering Cancer Center (February 5)


CIVIL PROCEDURE: Justice Rolando T. Acosta came down too hard on a mentally ill plaintiff who defied a court order to show up for a medical examination by the defendant's psychiatrist, the Appellate Division said. To punish her for the discovery violation, Acosta dismissed her complaint. Some sanction certainly was in order, the Appellate Division said. But the plaintiff’s failure to comply with the discovery order wasn’t “willful or contumacious,” it was due to her significant mental illness. So Acosta should have imposed a lesser punishment of precluding her attorney from presenting at trial evidence of her mental condition or of the defendant's alleged discrimination based on that condition, unless she shows up for a medical examination within 90 days, the appellate panel concluded. Weissman v. 20 East 9th Street Corp. (February 7)

SENTENCING: Justice Budd G. Goodman (now retired) was a bit too heavy with the sentence imposed on Anthony Elwood following his plea of guilty to robbery, said the Appellate Division, knocking a year off his six-year term. People v. Elwood (February 5)

QUEENS COUNTY

WORKERS COMPENSATION: Justice Joseph P. Dorsa apparently thought Santo D'Angelo, president of S & V Foods, Inc., deserved a second shot at asserting that he was entitled to coverage under his company’s workers' compensation policy. Dorsa declined to dismiss D’Angelo’s complaint seeking a declaratory judgment to that effect. The Appellate Division, however, said the issue was already put to rest in proceedings before the Workers' Compensation Board, and Dorsa shouldn’t have allowed him to relitigate the same issue again. D'Angelo v. State Insurance Fund (February 5)

TORT: Justice Janice Taylor erred in summarily dismissing a lawsuit arising from a traffic accident, according to the Appellate Division. The deposition testimony of the two drivers presented contrasting views of what happened, raising numerous issues that should be sorted out in a trial, the appellate panel said. Young Hee Kim v. Handelsman (February 5)

DIVORCE: Justice Maryellen Fitzmaurice gave Linda DiBlasi short shrift in several respects while dividing the marital assets in a divorce proceeding, and awarding spousal maintenance for a shorter period of time than was deserved, in the Appellate Division’s view. The judge had ordered support payments for two years when seven years was warranted, given the length of time that she was out of the workforce while raising the parties’ five children, the appellate judges said. On the other hand, Fitzmaurice was too generous in her award of fees to the ex-wife’s attorney, ordering Thomas DiBlasi to hand over more than $133,000 when $100,000 was quite enough, in the appellate panel’s opinion. DiBlasi v. DiBlasi (February 5)

BRONX COUNTY

TORT: Justice Kenneth L. Thompson, Jr. was reversed for allowing a child who fell and cut her eyebrow on the edge of a shelf to proceed to trial against the Mosholu-Montefiore Community Center with a claim alleging, among other things, that the shelving unit holding toys was “play equipment.”  The Appellate Division unanimously reversed Thompson and dismissed Brianna Dalal Hamdan’s lawsuit on grounds that there was no explanation about what caused the fall and no evidence that the property was not in a reasonably safe condition, or that the edges of the shelves were hidden or defective. A claim in the lawsuit based on a Health Code section prohibiting “play equipment” with sharp edges also failed to raise a triable issue because the shelves were not play equipment, the appellate judges concluded. Hamdan v. Mosholu-Montefiore Community Center (February 7)

TORT: Justice Mary Ann Brigantti-Hughes approved a jury’s exorbitant award of damages to a teacher who was injured when an emotionally disturbed student slammed a door with a broken hydraulic controller against his head, the Appellate Division said. A fair interpretation of the evidence supported the jury’s conclusion that the Board of Education bore full blame for the injuries sustained by the teacher, Rodrigo Villaseca, because the district failed to properly inspect and maintain the controller that intended to prevent the heavy door from slamming shut. There was also no question that Rodrigo was seriously injured. In fact, he lost his one good eye as a result of the accident.  But the aggregate award of $12.2 million in damages to Rodrigo and his wife was more than twice the amount that would have been reasonable under the circumstances, said the appellate panel, remanding the case for a new trial on damanges unless the plaintiffs stipulate to a reduced award of about $5.67 million. Villaseca v. City of New York (February 5)