In another case, a unanimous appellate panel reinstated a portion of the product liability complaint brought by Miguel Reyes, who was injured when a parking lift collapsed. The panel found that Stinson properly dismissed Reyes’ claim against the manufacturer of the lift on evidence that the original telescopic lift rods, the part that apparently failed, had been replaced. But testimony indicating that after the accident, the replacement rods were broken at the threads and had “opened up like a flower” was sufficient to raise an inference that those parts had not performed as intended and were the cause of the lift’s collapse, the appellate judges said. Reyes, therefore, should have been allowed to proceed with his suit against the retailer, which had expressly warranted the parking lift, as well as the manufacturer of the replacement rods, the appellate panel concluded. Reyes v. Harding Steel, Inc. (April 15)

Earlier this year, an appellate panel in Hill v. Stahl reinstated a Labor Law claim that Stinson had dismissed on the defendant’s motion for summary judgment.

Stinson’s reversals for errant summary dismissals last year came in an employment discrimination case (Clayton v. Best Buy Co., Inc.), a suit brought by a law firm seeking a contingency fee (Matter of Wingate, Russotti & Shapiro, LLP v Friedman, Khafif & Associates), a personal injury claim by a tenant (Carlos v 395 East 151st Street LLC), a medical malpractice case (Dallas-Stephenson v. Waisman), and three cases in which Stinson summarily dismissed viable claims alleging that the plaintiffs had suffered a “serious injury,” as defined in the no-fault auto insurance law (Joyce v Lacerra, Thompson v. Ramnarine, and Engles v. Claude)

Stinson has been reversed in full or in part in only three other cases since the start of 2007.  Two of the rulings were on procedural matters that went against the plaintiff. In the other cases, Stinson was reversed for denying the parole board's motion to change the venue of hearing from the Bronx to Albany County.

OTHER NOTABLE REVERSALS

BRONX COUNTY

TORT: Appellate Division panels last year intervened in six cases to reduce what they regarded as exorbitant personal-injury damage awards handed out by trial courts in the Bronx, offering a total of $13.6 million in saving to the defendants. Appellate panels have reduced just one Bronx tort award so far this year (by $400,000). They have stepped in on two other occasions to increase awards for pain and suffering that, in their view, overly vigilant trial judges in the Bronx cut by too much.

In the latest such case, the jurors who heard the lawsuit brought against the transit authority by 14-year-old Jesse Cintron Jr. did little to dispel the reputation that Bronx County juries have for being overly generous to injured plaintiffs. The jury assessed a total of $20 million for past and future pain and suffering for the injuries sustained by the teenager, who was sideswiped by a train while he was painting graffiti in a subway tunnel. The jury ordered the city to fork over half that amount on the theory that the transit authority bore half the blame for the tagger’s injuries. Bronx County Justice Diane T. Renwick, concluding that the jury’s award was excessive, ordered a new trial on damages unless the plaintiff stipulated to a reduced award of $2.5 million (subject to a further 50 percent reduction for Cintron’s negligence).

The Appellate Division agreed with Renwick that the jury award was way over the top, but concluded that in light of the serious brain injuries sustained by Cintron, the judge reined in the pain-and-suffering award by too much. The appellate panel nearly doubled the stipulated award to $4.75 million, and ordered the city to pay half of that, if Cintron accepts the deal. Cintron v. New York City Transit Authority (April 17)

In another case out of the Bronx, Justice Mark Friedlander went along with the jury’s decision to impose liability on a public hospital for the purported failure of doctors to adequately inform Marilyn Rodriguez about the risks of scarring from breast reduction surgery. Rodriguez convinced the jury and trial judge that the defendants failed to obtain her informed consent before proceeding with the surgery because information about the risks was conveyed in English, a language she said she doesn’t fully understand.

A unanimous appellate panel wasn’t buying it. Her claim that she doesn’t speak much English was belied by the fact that she never bothered asking for a Spanish consent form or interpreter, and she acknowledged that she acted as a translator for another Spanish-speaking patient while she was at the hospital. Rodriguez also failed to establish that she would not have proceeded with the surgery, which she sought on her own accord, had she been fully informed of the risks, benefits and alternatives. Friedlander, therefore, should have set aside the verdict and dismissed the complaint, the appellate panel concluded. Rodriguez v. New York City Health and Hospitals Corp. (April 17)

NEW YORK COUNTY

BANKING: Justice Milton A. Tingling concluded that a $200,000 check given by Harry Kalt to Sidney Ritman was a loan that must be repaid. Luckily for Ritman, the case was tried without a jury, which meant that the Appellate Division’s “reach in reviewing the evidence …[was] as broad as that of the trial court,” as the appellate panel that heard Ritman’s appeal put it. Upon delving into the evidence, the appellate judges found no support for Tingling’s conclusion. No loan agreement existed, no repayment period or interest rate was ever agreed to between the parties, and the uncontroverted testimony of the parties' accountant established that the payment was made in consideration for the release of Kalt as a personal guarantor of a corporate debt. The check, in short, was not a loan at all, the appellate panel concluded, reversing Tingling and freeing Ritman from the obligation to pay it back. Kalt v. Ritman (April 17)

FAMILY: Justice Joan B. Lobis took it upon herself to rewrite a child-care provision in a divorce agreement that didn’t need rewriting because it was unambiguous, the Appellate Division said. The stipulation granted each party the right of first priority to care for the children whenever the other party is unavailable, a provision that the father invoked when he sought to take over care of the children after school, in lieu of child-care arrangements that the mother had made between the time they got out of school and she finished work. Lobis had no right to insert a condition into the agreement that the parties chose not to insert themselves, the appellate panel concluded. Camaiore v. Farance (April 17)

JURORS: Justice Eduardo Padro was reversed for keeping a doctor on the jury that convicted Paul George of drug dealing, despite the doctor’s assertion that he very well might be “judgmental” due to his exposure to drug-ravaged patients in his medical practice. During questioning of prospective jurors, the doctor said he would try to be fair. But according to the Appellate Division, Padro never got an unequivocal assurance from the prospective juror that he would be unbiased, so the judge should have granted the defendant’s challenge and kept the doctor off the case. People v. George (April 15)

PLEA: Justice Philip M. Grella failed to inform Paul Boyd that he would face a lengthy period of post-release supervision if he pleaded guilty, denying him due process and invalidating the plea, the Appellate Division said. People v. Boyd (April 17)