According to the Appellate Division, Cooperman got some of his evidentiary rulings right. He properly allowed prosecutors to use evidence that Borrell possessed on his person and in his vehicle when he was arrested. The judge also correctly ruled that the marital privilege did not apply to Borrell’s communications with his wife. But according to a unanimous appellate panel, he should have granted Borrell’s motion to suppress physical evidence seized from his apartment because the police had no right to conduct a warrantless search of the apartment once it became apparent that the key provided to them by the defendant's estranged wife didn’t work.

The unauthorized intrusion into the apartment also corrupted some of the testimony identifying Borrell as the masked man responsible for the robberies and burglary charged under one of two indictments because that testimony was based on distinctive items of clothing recovered by police during the search. In fact, the illegal evidence so thoroughly corrupted the case against Borrell on those counts that those convictions must be vacated, the appellate panel concluded. If prosecutors want to try him again, they'll have to proceed without any evidence connected with the apartment search.  People v. Borrell (March 25)

Click here for our February profile of Justice Cooperman.

QUEENS COUNTY

CRIMINAL: Justice Richard Buchter allowed a detective to slip inadmissible hearsay evidence into his testimony in the trial of Oliver Berry for second-degree murder and other offenses, the Appellate Division said. Since there wasn't much other evidence against Berry in the single-witness case, the panel of appellate judges was compelled to reverse the conviction. The detective’s testimony veered out of bounds when he clearly insinuated that a witness who was not called to testify at the trial had identified Berry as the shooter. The admission of that statement violated Berry's right to confront his accusers, an affront that was magnified, the appellate panel said, by the prosecutor, who asserted during her opening statement that the uncalled witness knew Berry did the shooting and “identified the defendant to the police.” People v. Berry (March 25)

MEDICAL MALPRACTICE: Justice Peter O'Donoghue erred in rejecting the testimony of a neurologist offered by the plaintiff in a medical malpractice lawsuit, the Appellate Division said. The estate of James Breland is suing the doctors who examined him at a hospital where he went with complaints of severe headache, dizziness, and blurred vision, two days before he died of a brain hemorrhage. Reversing O'Donoghue and reinstating the complaint, the appellate panel concluded that the neurologist was sufficiently knowledgeable to testify about how hospital emergency rooms handle patients who arrive by ambulance with severe headaches. The appellate judges found what he had to say compelling enough to warrant a trial on whether the way the hospital's staff treated Breland was in line with accepted standards of care. Breland v. Jamaica Hospital Medical Center (March 25)

NEW YORK COUNTY

New York County Justice Robert D. Lippmann is the latest trial judge to get tripped up over the murky line that separates excusable explanations for missing hearings or filing deadlines from laughable excuses for procrastinating.

The Appellate Division insisted last fall that a “perfunctory claim of law office failure” is not sufficient to extricate a malingering lawyer from a default judgment. In another ruling just three weeks later, however, the Appellate Division let a plaintiff’s attorney wiggle out of a default judgment with a concededly “weak” explanation that he missed a hearing because of an otherwise unexplained “computer glitch.”

The appellate judges seemed to be back in a permissive frame of mind on the day when Lippmann’s hard-hearted ruling granting a default judgment to a plaintiff in a suit against the transit authority came up for review. The city was six months late in serving an answer to Lifsha Spira’s claim because of “understaffing,” an excuse that was awfully perfunctory as far as Lippmann was concerned.

It was, indeed, “not particularly compelling,” the appellate panel conceded.  But it was just good enough, particularly since Spira was not prejudiced by the delay, a unanimous panel concluded, reversing Lippmann, denying the default judgment against the city and sending the case back to court. Spira at least got a consolation prize. The Appellate Division reversed Lippmann’s ruling, but only on condition that the city pay $5,000 in sanctions to her attorney within 30 days. Spira v. New York City Transit Authority (March 27)

BRONX COUNTY

LABOR LAW: The Appellate Division reversed one Bronx judge for stretching the Labor Law too far to cover a plaintiff who wasn’t meant to be protected by the statute, while reversing another Bronx judge for adopting an overly restrictive view of the scope of the law.

Justice Sallie Manzanet-Daniels is the judge who got reversed for overextending the law to cover a superintendent who was injured while passing through a part of the building that was undergoing demolition and construction. As the appellate panel explained, the superintendent was not in the class of workers covered by the Labor Law because he was not a member of the crew that carried out the construction contract and did not perform work integral or necessary to the completion of the project. Coombs v. Izzo General Contracting, Inc. (March 27)

TORT: Justice Betty Owen Stinson erred, according to the Appellate Division, in concluding that Barry Hill wasn’t covered by the Labor Law provisions he cited in his lawsuit. In Stinson’s view, he was solely to blame for the arm injury he sustained when he mistakenly tried to use the brake to control a scaffold that was descending too rapidly instead of relying on his safety harness to save him from harm. The appellate division took one step further back along the chain of events that led to Hill’s injury, and noted that the scaffold was falling because it was connected to an outlet set at an improper voltage, thereby causing the electric motor and brake on the scaffold to fail. That snafu was the contractor’s fault, while Hill’s ill-considered attempt to stop the scaffold’s rapid descent constituted at most contributory negligence. “The purpose of the statute is to protect workers by placing the ultimate responsibility for safety practices where such responsibility belongs, on the owners and general contractors, instead of on the individual workers who are not in a position to protect themselves,” said the appellate panel, adding that the law “is to be construed as liberally as necessary to accomplish the purpose for which it was framed.” Hill v. Stahl (March 25)

TORT: Justice Douglas E. McKeon should have summarily dismissed Francis Vitello’s product liability suit based on her own testimony that she presented in her suit against the manufacturer of the automobile in which she was injured, the Appellate Division said. The expert testimony she offered in her attempt to link the accident to a recall related to the car’s suspension control arm shaft was based entirely on speculation, the appellate judges said. A much simpler, obvious explanation emerged from Vitello’s description of the accident, which makes it clear that the vehicle hydroplaned on a wet road, the appellate panel concluded. Vitello v. General Motors Corp. (March 25)

KINGS COUNTY

NO-FAULT INSURANCE:  The Appellate Division’s Second Department delivered the latest installments in a long-running lecture to a bunch of wayward judges in Brooklyn about the ins and outs of the state’s no-fault auto insurance law. The latest lessons, in the form of four reversals, should be starting to sound familiar to the King County trial bench. The Appellate Division has used the same lines in prior reversals, and plenty of those have been handed out in Brooklyn. Including this latest batch, the Second Department reversed Kings County trial judges in Insurance Law cases a total of 18 times in the first three months of the year. The appellate department reversed Queens County trial judges in Insurance Law cases seven times during the same period. The First Department, meanwhile, saw fit to second guess judges in Manhattan and the Bronx in such cases just three times in the first three months of the year.

The latest reversals of Kings County cases were all handed down March 25. In one, Justice Leon Ruchelsman was reversed for, among other things, allowing a plaintiff to slip by the no-fault law’s “serious injury” threshold with medical testimony that was based on unsworn doctors’ reports. Doherty v. Ajaib  

Justice David Schmidt was reversed in two cases for being equally lax with unsworn doctor’s reports. Laurent v. McIntosh & Piperis v. Wan
 
In contrast with the other three, Justice Diana Johnson was reversed for siding with the defense and prematurely dismissing a “serious injury” claim. The defendant's medical testimony was flawed, the Appellate Division said, because the doctors failed to compare their findings with regard to the range of motion in the plaintiff’s spine and shoulders to what is considered normal. Cruz v. Rosenbaum (March 25)

TORT: For the fifth week in a row, the Appellate Division faulted Justice Martin Solomon for giving too much credence to a personal complaint. His previous reversal came in a case in which he allowed a plaintiff to proceed with a suit against the city for a trip and fall on a loose metal plate on a sidewalk. This time, Solomon was reversing for denying a construction company’s motion to dismiss a suit for a trip and fall on the raised lip of sidewalk flagstone. According to the Appellate Division, the company evidence demonstrating that it did not perform any work on the portion of the sidewalk where the accident occurred, and thus, there was no reason for Solomon to keep the company tied up in the lawsuit. Cino v. City of New York (March 25)