In the other case, the Appellate Division reinstated a Bronx County jury verdict that Justice Maryann Brigantti-Hughes had tossed aside as too indulgent of finger pointing by a careless worker. Jurors had assigned just 40 percent of the fault to the plaintiff, Victor Verdi, for injuries inflicted by a power jack that he was using admittedly in violation of written instructions. The jury concluded that the supplier of the equipment bore the rest of the blame for making negligent repairs to an emergency button that malfunctioned.

Though defense witnesses dispute Verdi’s claim that the emergency button had been fouled up, it was the jurors’ prerogative to believe Verdi on that point, the appellate panel observed. Based on that finding, a perfectly rational decision about how to allocate blame had been made, and there was no good reason to set aside the verdict, the appellate panel concluded. Verdi v Top Lift & Truck Inc. (April 29)

OTHER NOTABLE REVERSALS

NEW YORK COUNTY

EDUCATION: Justice Kibbie F. Payne erred according to the Appellate Division in denying reimbursement for attorneys fees to a teacher who was dragged into a criminal case by the apparently unfounded accusations of a couple of students. The criminal proceeding brought against the teacher clearly stemmed from disciplinary actions that he had taken against the students, said the appellate judges, so the action fell within the scope of an Education Law provision requiring the board of education to pay legal defense costs incurred by employees who get into trouble for doing their jobs. Timmerman v Board of Education of the City School District of the City of New York (April 29)

LANDLORD TENANT: Justice Karla Moskowitz let a Hooters restaurant proceed with a claim for damage to its business caused by an unsightly scaffold obscuring the establishment’s trademark façade, despite a clause in the lease in which the tenant waived all rights to recover consequential damages. Since the damages for which Hooters was seeking compensation from the insurer were clearly consequential in nature, Moskowitz should have summarily dismissed the claim, a unanimous appellate panel concluded. Hooters of Manhattan, Ltd. v 211 West 56 Associates (May 1)

BRONX COUNTY

TORT: Justice Betty Owen Stinson was too quick to let a bus driver off the hook for coping with a sudden “emergency” that may have been of his own making, the Appellate Division said. Stinson summarily dismissed the bus company from the suit brought by passengers who were on the bus when it got in an accident on grounds that the driver was not liable for the accident because he was responding to an emergency. As far as the appellate panel was concerned, however, the actions of defendant bus driver in attempting to pass two other vehicles in rainy weather raised a questions as to whether the emergency doctrine should apply, because it cannot be said as a matter of law that defendant bus driver was faced with an emergency that was not of his own making. Martinez v Academy Bus LLC (May 1)

While Justice Stinson regularly gets reversed for too hastily dismissing complaints, she was recently reversed in another case for a rare tilt too far in favor of a plaintiff. In this case, Stinson erred in allowing a kitchen worker to proceed with a suit against an equipment maintenance company, the Appellate Division said. The worker admitted that she had never bothered pointing out a long-standing problem with a stove grate to workers from the company who regularly visited to fix problems just like that, so the company couldn’t be blame for failing to take care of that, the appellate panel said. Fairclough v All Service Equipment Corp. (April 29)

COMPETENCE: Justice Lucy Billings overestimated the psychiatric fitness of a public hospital patient named Brian H., the Appellate Division said. Billings’ belief that he no longer posed a danger to himself was belied by the circumstances that brought him to the hospital in the first place, the appellate panel observed. Brian showed up several days after blowing up his hand in a 4th of July fireworks explosion. His hand had to be amputated, yet just a few days later, defying instructions about how to care for his injury, he demanded to be let out of the hospital. That conduct together with his long history of mental illness and pleas from his family members not to let him out was more than enough evidence to convince a unanimous appellate panel to reverse Billings and grant the hospital’s petition to keep the patient confined for his own good. New York City Health and Hospitals Corp. v Brian H. (May 1)

KINGS COUNTY

DIVORCE: Justice Sarah Krauss was reversed for letting a father nitpick his children’s tuition bill. Under the terms of his divorce settlement, he was obligation to pay private school education costs for his five children. He contended, and Krauss agreed, that under the terms of the agreement, he could deduct from the school’s bill items for such things as "registration," "building fund," and "annual dinner.” Nixing that gambit, the Appellate Division said the father must pony up for the full bill, seemingly extraneous items and all. Under the circumstances of this case, the term "education expenses" must be construed to include all fees necessary for enrollment, the appellate panel explained. Weinschneider v Weinschneider (April 29)