Judicial Reports:
SPINAL MANTRA
By Mark Thompson
markthomp@yahoo.com
Posted 02-27-08
The Appellate Division’s Second Department called two more judges onto the carpet last week for a lesson about the state’s no-fault auto insurance law. They joined a list of approximately two dozen other judges who have been overturned by Second Department appellate panels in the past year for setting the “serious injury” threshold too low for lawsuits attempting to get past the state’s no-fault law and into court. About half of the reversals, including the latest two, have included the identically worded admonishment that without something more, “the mere existence of a herniated or bulging disc is not evidence of a serious injury.”
In one of last week’s pair of reversals, the Appellate Division said Kings County Justice Martin Schneier gave too much credence to Shmuel Deutsch’s “serious injury” claim, though it was built on little more than the “mere existence of a herniated or bulging disc.” Besides that, there was no competent medical evidence of loss of range of motion in his spine that was “even roughly contemporaneous” with the accident, the appellate division said, reversing Schneier and booting the case out of court. Deutsch v. Tenempaguay (February 19)
Queens County Justice Peter Kelly was beguiled by the “mere existence of a herniated or bulging disc” in a lawsuit brought by Elvira Penaloza. The main trouble with her case was that her treating neurologist, Dr. David Zelefsky, failed to adequately address the fact that Penaloza had injured her back and neck in two previous accidents. He took her word that she had recovered from any prior injuries, and never bother to check any medical records about those accidents, the appellate panel observed, “rendering speculative” any opinion he could offer about whether the bulges and herniations in her spine stemmed from the accident at issue in this case. Penaloza v. Chavez (February 19)
The Second Department has recited the line about the “mere existence” of bulging and herniations in at least 20 rulings since the start of 2007. In 11 of those cases, including nine from Kings County, the trial judges were reversed for setting the “serious injury” bar too low. In the other cases, appellate panels affirmed the trial judges and praised them for resisting the entreaties of plaintiffs’ bearing CAT scans and MRI reports showing the “mere existence” of those problems in their spinal column.
In contrast with the Second Department, the First Department has largely opted out of trying to fine-tune trial judges’ interpretations of a statute that is less than clear-cut on a number of key points. Last year, the First Department reversed just nine “serious injury” threshold rulings in the two New York City counties that it covers, compared with 57 reversals handed down by the Second Department in “serious injury” cases from Brooklyn, Queens and Staten Island.
In a 2005 ruling, a divided panel of the First Department explained that it prefers to stay out of the business of interpreting the law. In short, it’s a mess best left to the Court of Appeals and/or the legislature to straighten out.
“[W]e respectfully and simply urge that the ‘serious injury’ threshold be the subject of High Court interpretation or statutory reform aimed at drawing a brighter line between those cases where a plaintiff's injuries are truly and verifiably ‘serious’ within the meaning and intent of [the law] and those which are neither,” the First Department panel stated in Thompson v. Abbasi. “One need only examine the scores of repetitive judicial and legal debates on this issue to conclude reasonably and quickly that the status quo is a diversion of precious court resources which is correctable in the interests of fairness, justice and efficiency.”
OTHER NOTABLE REVERSALS
KINGS COUNTY
SENTENCING: Justice Robert Holdman has picked up his fourth reversal in the past year for railroading a defendant facing weapons charges. In the latest case, which like the others concerned sentencing proceedings handled by Holdman in 2006, the judge failed to properly inform Michael Pittman of his rights on appeal, the Appellate Division said, and then he proceeded to impose an excessive sentence that was more than twice has long as he deserved. Pittman was incorrectly informed in a preprinted waiver form, that his right to appeal did not include the right to appellate review of an excessive sentence. Therefore, he didn’t waive that right and has a right to challenge the seven year prison term imposed by Holdman, concluded the appellate panel, cutting the prison term to three years and also halving the three-year period of post-release supervision to a year and a half. People v. Pittman (February 19)
HOUSING: Justice Bernadette Bayne second-guessed a Housing Authority ruling for no good reason that the Appellate Division could discern. Bayne overturned the authority’s denial of Tyefia McLeon’s claim that she was entitled to take over a deceased relative’s apartment as a "remaining family member." According to the Appellate Division, the evidence demonstrated that McLeon failed to obtain the project management's written permission to reside in the apartment and produced no evidence that the authority knew about and implicitly allowed her to reside in the apartment prior to the death of the tenant of record. Matter of McLeon v. NYCHA Hope Gardens (February 19)
NEW YORK COUNTY
SECURITIES: Justice Charles E. Ramos must loosen up his tight rein on a pair of insurance company executives caught up in an investigation of securities violations, the Appellate Division said. The two former directors of the AIG insurance company are entitled to examine legal memoranda created during their tenure at the corporation, said an appellate panel, giving them access to material that a discovery order issued by Ramos barred them from obtaining. According to the Appellate Division, the executives demonstrated that access to the material is necessary to prepare their defense, and therefore, whether New York or Delaware law regarding privileged communications governs in this case, they have a qualified right to inspect the books and records. People v. Greenberg (February 19)
TORT: Justice Joan A. Madden stretched the concept of “special use” of a public sidewalk too far in a ruling that allowed Florence Taubenfeld to proceed with a suit against a Starbucks outlet, the Appellate Division said. The coffee shop clearly made “special use” of parts of sidewalk where tables and chairs for its customers were placed, and the shop therefore assumed a duty to keep those areas safe. But according to the appellate panel, the portions of sidewalk for which it assumed responsibility did not extend to the tree well where Taubenfeld tripped over a tree root. Though she claimed that she was forced to try to step around the tree to avoid Starbucks patrons crowding around the tables outside the shop, Madden should have summarily dismissed her suit against the coffee shop, the appellate panel concluded. Taubenfeld v. Starbucks Corp. (February 21)
BRONX COUNTY
TORT: Justice Janice L. Bowman was reversed for adopting an overly expansive view of “special use” in a case brought after a slip and fall on a sidewalk near a supermarket in the Bronx. The store’s occasional use of the sidewalk for deliveries was not enough to impose on the store a duty to keep that stretch of city sidewalk safe, the Appellate Division said. Rodriguez v. City of New York (February 19)
FAMILY: Justice Bowman was reversed in a second case last week for allowing an allegedly abusive and neglectful mother to proceed with a suit blaming the Administration for Children's Services for exposing her child to sexual abuse in a foster home. The Appellate Division concluded that the case was a tragedy that the agency, based on the information it had, couldn’t have reasonably been expected to prevent. A hospital alerted the agency about possible abuse in the first home, a location well known to caseworkers from past investigations of domestic violence. As for the foster parents with whom the child was temporarily placed pending a hearing on those allegations, they had served as foster parents twice without complaint and the agency had no reason to suspect they might commit sexual abuse of the child, the appellate panel said. Bowman therefore should have summarily dismissed the complaint. The record contains no evidence of willful misconduct or gross negligence, which is required to overcome the statutory presumption that the agency and city acted in good faith, the appellate panel explained. Chapdelaine v. Administration for Children's Services (February 21)
QUEENS COUNTY
In three Queens County cases, the Appellate Division dismissed lawsuits that had been let past the starting gate by trial judges who were a bit too fast and loose with procedural rules for the appellate judges’ liking.
TORT: Justice Phyllis Flug let Hilary Vartanian proceed to court with a personal injury claim against the New York City Transit Authority, even though she never submitted to an oral exam as required by the Public Authorities Law. Vartanian backed out of six appointments for an examination, and never rescheduled. She blamed her procrastination on the pressures of a new job and poor communications with her attorney. Flug apparently sympathized, and let Vartanian proceed with her suit against the transit authority anyway. But Vartanian's excuse for failing to follow the law wasn't good enough for the Appellate Division, which reversed Flug and dismissed the complaint. Vartanian v. City of New York (February 19)
TORT: Flug was reversed in a second case for letting Osvaldo Angulo proceed with a late claim against the city, even though, according to the Appellate Division, the would-be plaintiff missed the deadline for filing a notice of claim, and then failed to follow procedures for seeking leave to serve a notice of claim. Angulo v. City of New York (February 19)
INSURANCE: Justice Patricia Satterfield was reversed for letting Maria Guayara get away with procedural shortcuts in her bid for reimbursement from an insurance company for an unsatisfied judgment against one of the insurer’s policyholders. As the harder-hearted Appellate Divison noted, Guayara failed to serve the insurer with a copy of the unsatisfied judgment, with notice of entry, 30 days before she commenced this direct action against it. She also violated the law’s service requirements by sending a letter to the broker of the insured, rather than to the insurer. For those reasons, Satterfield should have laid down the law and dismissed Guayara’s complaint, the Appellate Division said. Guayara v. Hudson Insurance Co. (February 19)
Posted by Ennis on February 27, 2008 01:45 AM to Judicial Reports