UNDUE PREJUDICE
By Mark Thompson
markthomp@yahoo.com
Posted 03-19-08
Kings County Justice Bernadette Bayne gave an ambulance driver named Alice McGloin such a rough ride in a trial that the Appellate Division threw out the verdict.
The jurors concluded that a traffic accident on the FDR Drive was McGloin’s fault, but according to the appellate panel, several bad rulings from Bayne on evidence and jury instructions may have had something to do with that. “The cumulative effect of the errors was unduly prejudicial,” the appellate panel concluded, awarding McGloin a new trial. McGloin v. Golbi (March 11)
According to the Appellate Division, Bayne committed her first reversible error in the case by “giving the jury a missing document charge regarding the plaintiff's failure to produce a driver log” when, in fact, there was no evidence that the log existed or was requested in discovery.
Bayne also erred in precluding McGloin from introducing an accident report she had filed on the ground that it merely bolstered her testimony. In fact, she needed that to rebut the charge that her account of the accident was a recent fabrication, the appellate division said.
Bayne erred again when she instructed jurors that the common-law standard of negligence automatically applied in assessing the parties’ conduct. In doing so, she took away from the jury the question of whether the ambulance driver was responding to an emergency at the time of the accident. If so, a higher “reckless disregard” standard of care would have applied to McGloin, the appellate panel said.
An occasional reversal from the Appellate Division may not ruffle Bayne. In the past, she has taken rebuffs in stride.
Less than a year after she was appointed to the bench by then Mayor David Dinkins in 1991, dozens of Legal Aid lawyers staged a wildcat walkout at the Brooklyn Criminal Court to protest her treatment of one of their colleagues. A former Legal Aid lawyer herself, she had no patience for the one in question, who showed up 20 minutes late for court one day and ended up handcuffed to a chair.
A decade later, after then Mayor Rudolph W. Giuliani's declined to reappoint her, Bayne waived his rejection like a badge of honor, and road it to a victory in an election for a court seat.
Lately, Bayne has picked up somewhat more than her fair share of reversals from the Appellate Division. The latest brings her total to 15 since the start of 2007. Two of the other reversals resulted in overturned trial verdicts.
In a case that resulted in a reversal last May, Bayne dismissed a complaint at the close of evidence in a jury trial involving an elevator mishap. The jurors reasonably could have concluded that the elevator operator was at fault, if Bayne had let them do their job, the appellate division said.
Last December, the Appellate Division reversed a $20 million-plus medical malpractice verdict after a trial before Bayne. Among other reversible shenanigans cited by the appellate panel, Bayne gave a holiday gift to the child who was suing for damages in the presence of the jury while regularly doling out undue tongue-lashings to attorneys for the defendants.
OTHER NOTABLE REVERSALS
NEW YORK COUNTY
EMPLOYMENT: Justice Karla Moskowitz didn’t give quite enough respect to the “bid form” used to complete an online auction, according to the Appellate Division. In the deal roughed out online, UBS agreed to acquire Emigrant Bank’s mortgage portfolio. The bank sued after negotiations to consummate the sale bogged down. Moskowitz concluded that the bid form wasn’t an enforceable sales contract because it stated that the ultimate sale was “subject to” agreement on other details. The gaps didn’t trouble the appellate judges. The bid form “was reasonably certain as to its material terms,” including the price that UBS agreed to pay for the loan portfolio, and therefore it was binding on the parties, the appellate panel concluded. Emigrant Bank’s allegation that UBS ginned up an impasse on the final details as a pretext for reneging on the deal raised issues of fact that can’t be resolved in a summary proceeding. So Moskowitz jumped the gun in dismissing causes of action for breach of contract and breach of duty to negotiate, the appellate judges said. Emigrant Bank v. UBS Real Estate Securities Inc. (March 13)
CONTRACT: In another case, Justice Moskowitz approved a no-compete clause in an employment contract that was much too broad, according to the Appellate Division. Moskowitz properly granted the employer’s motion for an injunction enforcing certain restrictive convenants signed by Chris Kosachuk, a former employee. But the covenant not to compete, while reasonable in terms of its five-year duration, was unreasonable in several other respects. For instance, it purports to cover the entire United States, even though the company operates in only eight states, observed the appellate panel. Moskowitz, therefore, should have modified the injunction in order to limit the scope of the no-compete agreement in that and other respects. Good Energy, L.P. v. Kosachuk (March 11)
LICENSING: Justice Karen S. Smith had no good reason to second guess the taxi commission over whether Boutros Mankarios should be let back behind the wheel of a New York City taxicab, the Appellate Division said. He had lost his license three years earlier after pleading guilty to a charge stemming from an altercation with two teenaged female passengers. Under that deal, Mankarios was barred from reapplying for only a year, a factor that seemed to sway Smith. But the appellate judges noted that the plea agreement clearly stated that there was no guarantee he would ever get his license back. The commission’s refusal to grant him a license in this instance was rationally based on a determination that the offense was too serious, not enough time has passed, and his recent educational and occupational achievements didn’t outweigh those considerations, the appellate division concluded. Matter of Mankarios v. New York City Taxi and Limousine Commission (March 11)
DAMAGES: Justice Faviola A. Soto approved a jury’s award of damages that the Appellate Division found to be exorbitant compensation for the future pain and suffering of a woman who was dragged by a train for 40 feet along a station platform. The evidence supported the jury's finding that the transit authority was 100 percent liable for the “catastrophic” injuries suffered by Alice Huang, the appellate judges said, because the accident could have been averted if the conductor had followed regulations requiring him to check the platform in both directions before signaling the motorman to proceed. But the award of $27 million for future pain and suffering, medical expenses and lost earnings was way out of line, concluded the appellate panel, which ordered a new trial on damages unless Huang agrees to a accept a reduced award of $9 million. Huang v. New York City Transit Authority (March 11)
RICHMOND COUNTY
INSURANCE: The excuse that Gloria Donovan sold to Justice Christoper Mega for why she waited 19 months to notify the insurer of her business premises about a possible claim was patently unreasonable, according to the Appellate Division. Donovan claimed that she failed to send notice because she honestly didn't think she would get sued for an alleged slip and fall on the sidewalk outside her business on Amboy Road in Staten Island. The appellate judges thought it should have dawned on her that she might get sued when she received a claim letter from a lawyer for Barbara Kearney, indicating that his client intended to pursue legal remedies for a slip and fall on the sidewalk in front of Donovan’s business address. In response, Donovan didn’t even “investigate the facts surrounding the accident to determine if Kearney did, in fact, fall on her property.” That was unreasonable, the appellate panel concluded, leaving Donovan with no good reason to believe she was in the clear, and no excuse for failing to promptly notify her insurer. Since Donovan violated the notice provision in her policy, Mega should have freed the insurer from any obligation to defend and indemnify her in the slip-and-fall lawsuit, the appellate panel concluded. Donovan v. Empire Insurance Group (March 11)
QUEENS COUNTY
MEDICAL MALPRACTICE: Justice Patricia Satterfield erred in allowing George Aronis to add a punitive damage claim to his medical malpractice suit against an eye clinic, the Appellate Division said. New York does not recognize an independent cause of action for punitive damages, the appellate judges informed Satterfield. Punitive damages can be exacted, but only if the alleged tort-feasor engaged in grossly reckless, malicious or reprehensible conduct that was aimed at the public generally. In the case at hand, Aronis isn’t accusing the eye clinic of anything other than mere negligence. So Satterfield should have dismissed the punitive damage claim and, while she was at it, she should have struck the “prejudicial and inflammatory language” from the plaintiff's bills of particulars, since that language pertained to the punitive-damages claim, the appellate panel concluded. Aronis v. TLC Vision Centers, Inc. (March 11)
CONTRACT: Justice Peter O'Donoghue appointed a temporary receiver for the defendant corporation’s business and assets though there was no evidence that such an “extreme remedy” was warranted, the Appellate Division said. The “unsupported allegations and accusations” tossed out by the plaintiff “fell far short” of demonstrating that property of the corporation was “in danger of being removed from the state, or lost, materially injured or destroyed,” a showing that is required before a company can be put into receivership, the appellate panel said. Vardaris Tech, Inc. v. Paleros Inc. (March 11)
KINGS COUNTY
TORT: Justice Lawrence Knipel is the latest in an ongoing parade of trial judges to get reversed by the Appellate Division for buying a procrastinating litigant’s flimsy excuse for missing a deadline. Knipel let the Tora Research Academy file a late amended answer in a personal injury suit based on its claim that it missed the filing deadline quite simply because the academy’s law firm wasn’t contacted by the academy about the case and retained by the academy's insurance carrier to handle the matter until after time to answer had expired. Their admission that they, in short, dilly dallied “did not establish a reasonable excuse for Tora's default,” the Appellate Division said, reversing Knipel and directing him to enter a judgment on liability in favor of the plaintiff. Miller v. Ateres Shlomo, LLC (March 11)
LEGAL MALPRACTICE: Justice Larry Martin started the statute-of-limitations clock running too soon on Yelena Kvetnaya’s legal-malpractice claim against her divorce lawyer, Marino Tylo, the Appellate Division said. As Martin saw it, Kvetnaya’s claim accrued, and thus the clock started running, at the point during the divorce proceedings when her lawyer gave her allegedly bad advice on her equitable distribution rights and failed to disclose a conflict of interest. By the time she sued, in October 2004, the three-year statute of limitations had expired, Martin concluded. According to the appellate panel, however, since Tylo continuously represented Kvetnaya at least until the judgment of divorce was signed in November 2001, the clock didn’t start running until then, so her malpractice claim was timely and should be reinstated. Kvetnaya v. Tylo (March 11)
BRONX COUNTY
DAMAGES: Justice Edgar Walker correctly found that a Bronx jury went overboard in compensating Alberta Harris for torn ligaments in her knee incurred in a trip and fall on a floor map in a public hospital, the Appellate Division said. But Walker went too far in trimming the award for future pain and suffering from $1 million to $120,000. Although the 76-year-old plaintiff is doing well enough for now, and can still live independently as before the accident, she may need knee replacement surgery and other treatment in the years to come as a result of the accident. An award for future pain and suffering of $250,000 is more appropriate than either the exorbitant sum awarded by the jury or the relatively paltry award granted by Walker, the appellate panel concluded. Harris v. City of New York Health and Hospitals Corp. (March 11)
Bayne also erred in precluding McGloin from introducing an accident report she had filed on the ground that it merely bolstered her testimony. In fact, she needed that to rebut the charge that her account of the accident was a recent fabrication, the appellate division said.
Bayne erred again when she instructed jurors that the common-law standard of negligence automatically applied in assessing the parties’ conduct. In doing so, she took away from the jury the question of whether the ambulance driver was responding to an emergency at the time of the accident. If so, a higher “reckless disregard” standard of care would have applied to McGloin, the appellate panel said.
An occasional reversal from the Appellate Division may not ruffle Bayne. In the past, she has taken rebuffs in stride.
Less than a year after she was appointed to the bench by then Mayor David Dinkins in 1991, dozens of Legal Aid lawyers staged a wildcat walkout at the Brooklyn Criminal Court to protest her treatment of one of their colleagues. A former Legal Aid lawyer herself, she had no patience for the one in question, who showed up 20 minutes late for court one day and ended up handcuffed to a chair.
A decade later, after then Mayor Rudolph W. Giuliani's declined to reappoint her, Bayne waived his rejection like a badge of honor, and road it to a victory in an election for a court seat.
Lately, Bayne has picked up somewhat more than her fair share of reversals from the Appellate Division. The latest brings her total to 15 since the start of 2007. Two of the other reversals resulted in overturned trial verdicts.
In a case that resulted in a reversal last May, Bayne dismissed a complaint at the close of evidence in a jury trial involving an elevator mishap. The jurors reasonably could have concluded that the elevator operator was at fault, if Bayne had let them do their job, the appellate division said.
Last December, the Appellate Division reversed a $20 million-plus medical malpractice verdict after a trial before Bayne. Among other reversible shenanigans cited by the appellate panel, Bayne gave a holiday gift to the child who was suing for damages in the presence of the jury while regularly doling out undue tongue-lashings to attorneys for the defendants.
OTHER NOTABLE REVERSALS
NEW YORK COUNTY
EMPLOYMENT: Justice Karla Moskowitz didn’t give quite enough respect to the “bid form” used to complete an online auction, according to the Appellate Division. In the deal roughed out online, UBS agreed to acquire Emigrant Bank’s mortgage portfolio. The bank sued after negotiations to consummate the sale bogged down. Moskowitz concluded that the bid form wasn’t an enforceable sales contract because it stated that the ultimate sale was “subject to” agreement on other details. The gaps didn’t trouble the appellate judges. The bid form “was reasonably certain as to its material terms,” including the price that UBS agreed to pay for the loan portfolio, and therefore it was binding on the parties, the appellate panel concluded. Emigrant Bank’s allegation that UBS ginned up an impasse on the final details as a pretext for reneging on the deal raised issues of fact that can’t be resolved in a summary proceeding. So Moskowitz jumped the gun in dismissing causes of action for breach of contract and breach of duty to negotiate, the appellate judges said. Emigrant Bank v. UBS Real Estate Securities Inc. (March 13)
CONTRACT: In another case, Justice Moskowitz approved a no-compete clause in an employment contract that was much too broad, according to the Appellate Division. Moskowitz properly granted the employer’s motion for an injunction enforcing certain restrictive convenants signed by Chris Kosachuk, a former employee. But the covenant not to compete, while reasonable in terms of its five-year duration, was unreasonable in several other respects. For instance, it purports to cover the entire United States, even though the company operates in only eight states, observed the appellate panel. Moskowitz, therefore, should have modified the injunction in order to limit the scope of the no-compete agreement in that and other respects. Good Energy, L.P. v. Kosachuk (March 11)
LICENSING: Justice Karen S. Smith had no good reason to second guess the taxi commission over whether Boutros Mankarios should be let back behind the wheel of a New York City taxicab, the Appellate Division said. He had lost his license three years earlier after pleading guilty to a charge stemming from an altercation with two teenaged female passengers. Under that deal, Mankarios was barred from reapplying for only a year, a factor that seemed to sway Smith. But the appellate judges noted that the plea agreement clearly stated that there was no guarantee he would ever get his license back. The commission’s refusal to grant him a license in this instance was rationally based on a determination that the offense was too serious, not enough time has passed, and his recent educational and occupational achievements didn’t outweigh those considerations, the appellate division concluded. Matter of Mankarios v. New York City Taxi and Limousine Commission (March 11)
DAMAGES: Justice Faviola A. Soto approved a jury’s award of damages that the Appellate Division found to be exorbitant compensation for the future pain and suffering of a woman who was dragged by a train for 40 feet along a station platform. The evidence supported the jury's finding that the transit authority was 100 percent liable for the “catastrophic” injuries suffered by Alice Huang, the appellate judges said, because the accident could have been averted if the conductor had followed regulations requiring him to check the platform in both directions before signaling the motorman to proceed. But the award of $27 million for future pain and suffering, medical expenses and lost earnings was way out of line, concluded the appellate panel, which ordered a new trial on damages unless Huang agrees to a accept a reduced award of $9 million. Huang v. New York City Transit Authority (March 11)
RICHMOND COUNTY
INSURANCE: The excuse that Gloria Donovan sold to Justice Christoper Mega for why she waited 19 months to notify the insurer of her business premises about a possible claim was patently unreasonable, according to the Appellate Division. Donovan claimed that she failed to send notice because she honestly didn't think she would get sued for an alleged slip and fall on the sidewalk outside her business on Amboy Road in Staten Island. The appellate judges thought it should have dawned on her that she might get sued when she received a claim letter from a lawyer for Barbara Kearney, indicating that his client intended to pursue legal remedies for a slip and fall on the sidewalk in front of Donovan’s business address. In response, Donovan didn’t even “investigate the facts surrounding the accident to determine if Kearney did, in fact, fall on her property.” That was unreasonable, the appellate panel concluded, leaving Donovan with no good reason to believe she was in the clear, and no excuse for failing to promptly notify her insurer. Since Donovan violated the notice provision in her policy, Mega should have freed the insurer from any obligation to defend and indemnify her in the slip-and-fall lawsuit, the appellate panel concluded. Donovan v. Empire Insurance Group (March 11)
QUEENS COUNTY
MEDICAL MALPRACTICE: Justice Patricia Satterfield erred in allowing George Aronis to add a punitive damage claim to his medical malpractice suit against an eye clinic, the Appellate Division said. New York does not recognize an independent cause of action for punitive damages, the appellate judges informed Satterfield. Punitive damages can be exacted, but only if the alleged tort-feasor engaged in grossly reckless, malicious or reprehensible conduct that was aimed at the public generally. In the case at hand, Aronis isn’t accusing the eye clinic of anything other than mere negligence. So Satterfield should have dismissed the punitive damage claim and, while she was at it, she should have struck the “prejudicial and inflammatory language” from the plaintiff's bills of particulars, since that language pertained to the punitive-damages claim, the appellate panel concluded. Aronis v. TLC Vision Centers, Inc. (March 11)
CONTRACT: Justice Peter O'Donoghue appointed a temporary receiver for the defendant corporation’s business and assets though there was no evidence that such an “extreme remedy” was warranted, the Appellate Division said. The “unsupported allegations and accusations” tossed out by the plaintiff “fell far short” of demonstrating that property of the corporation was “in danger of being removed from the state, or lost, materially injured or destroyed,” a showing that is required before a company can be put into receivership, the appellate panel said. Vardaris Tech, Inc. v. Paleros Inc. (March 11)
KINGS COUNTY
TORT: Justice Lawrence Knipel is the latest in an ongoing parade of trial judges to get reversed by the Appellate Division for buying a procrastinating litigant’s flimsy excuse for missing a deadline. Knipel let the Tora Research Academy file a late amended answer in a personal injury suit based on its claim that it missed the filing deadline quite simply because the academy’s law firm wasn’t contacted by the academy about the case and retained by the academy's insurance carrier to handle the matter until after time to answer had expired. Their admission that they, in short, dilly dallied “did not establish a reasonable excuse for Tora's default,” the Appellate Division said, reversing Knipel and directing him to enter a judgment on liability in favor of the plaintiff. Miller v. Ateres Shlomo, LLC (March 11)
LEGAL MALPRACTICE: Justice Larry Martin started the statute-of-limitations clock running too soon on Yelena Kvetnaya’s legal-malpractice claim against her divorce lawyer, Marino Tylo, the Appellate Division said. As Martin saw it, Kvetnaya’s claim accrued, and thus the clock started running, at the point during the divorce proceedings when her lawyer gave her allegedly bad advice on her equitable distribution rights and failed to disclose a conflict of interest. By the time she sued, in October 2004, the three-year statute of limitations had expired, Martin concluded. According to the appellate panel, however, since Tylo continuously represented Kvetnaya at least until the judgment of divorce was signed in November 2001, the clock didn’t start running until then, so her malpractice claim was timely and should be reinstated. Kvetnaya v. Tylo (March 11)
BRONX COUNTY
DAMAGES: Justice Edgar Walker correctly found that a Bronx jury went overboard in compensating Alberta Harris for torn ligaments in her knee incurred in a trip and fall on a floor map in a public hospital, the Appellate Division said. But Walker went too far in trimming the award for future pain and suffering from $1 million to $120,000. Although the 76-year-old plaintiff is doing well enough for now, and can still live independently as before the accident, she may need knee replacement surgery and other treatment in the years to come as a result of the accident. An award for future pain and suffering of $250,000 is more appropriate than either the exorbitant sum awarded by the jury or the relatively paltry award granted by Walker, the appellate panel concluded. Harris v. City of New York Health and Hospitals Corp. (March 11)