The appellate panel faulted Balter for drawing a “rigid analytical line” between medical malpractice and negligence when no such distinction is warranted. But the ruling wasn’t unanimous. Two dissenters on the five-judge panel agreed with Balter that the plaintiffs have no triable claim.

The nursing home presented an affidavit from a medical expert who asserted that the patient’s health had declined so precipitously in the days preceding the second fall that it was reasonable to believe she was much too weak to get out of bed on her own. In light of that, the home’s staff did not depart from accepted medical practice in failing to use restraints, the defense expert asserted, in an opinion that the plaintiff’s failed to counter with evidence from an expert of their own.

No such expert testimony was needed, according to the appellate panel majority. Whether a nursing home that has identified a frail and elderly patient as a risk for falling should take reasonable steps to prevent that from happening is a question that “does not involve specialized knowledge of medical science or diagnosis,” the three-judge majority concluded, in sending the parties back to court. D'Elia v. Menorah Home and Hospital for the Aged and Infirm (May 20)

OTHER NOTABLE REVERSALS

BRONX COUNTY

JURORS: An attorney for a defendant on trial on charges of offering a false instrument for filing told Justice Dominic R. Massaro that his client intended to exercise her right to be present for “all material stages” of the trial, but Massaro proceeded to hold sidebar conferences with 10 prospective jurors in her absence anyway. The judge’s chats with three of the panelists, one of whom had previously worked with the defendant, constituted “material stages” of the proceeding because the discussions concerned their ability to be impartial, concluded the majority of an Appellate Division panel, which reversed the conviction. Two dissenters on the panel weren’t prepared to go that far. They called for a reconstruction hearing to determine whether the defendant, who was seated just eight feet away from the bench, could see and hear Massaro’s sidebar conferences with the prospective jurors. People v. Williams (May 22)

NEW YORK COUNTY

SEARCH: Now retired Justice Budd G. Goodman was reversed—for the fifth time in less than six months—for denying a motion to suppress evidence in a criminal case without benefit of a hearing. In a 2005 ruling, Goodman summarily denied the motion of Ismael Otero to suppress money recovered from him by an undercover officer, prompting a unanimous appellate panel to hold sentencing in abeyance pending a suppression hearing. People v. Otero (May 22)

SENTENCING: Justice Edwin Torres failed to comply with the statutory mandate of the Drug Law Reform Act when he brushed off Sergio Gutierrez’s bid for resentencing under the law with the barebones statement that "substantial justice requires that this motion be denied," said the Appellate Division, which sent the case back to Torres with orders to do it right next time. Torres must give Gutierrez a hearing and issue written findings of fact and a statement of reasons for his decision as to whether the inmate deserves a shorter prison sentence or not. People v. Gutierrez (May 20)

ATTORNEYS, ARBITRATION: Justice Richard B. Lowe III erred in disqualifying the attorneys for the plaintiff in an action for breach of a loan agreement, the Appellate Division said. Lowe based his decision on the fact that the attorneys had previously represented both parties in the loan transaction at issue. But that was no reason to kick the attorneys off the case, said the appellate panel, because the defendants were fully aware during negotiations over the loan that the attorneys were representing both sides. Consequently, they had no reasonable expectation of confidentiality in their dealings with the lawyers. Lowe was also faulted for denying the defendant's motion to compel arbitration of the dispute. The arbitration clause governs "any" dispute "arising out of" the loan agreement, and that is plenty broad enough to encompass the claims at issue in this case, the appellate panel concluded. Volo Logistics LLC v. Varig Logistica S.A. (May 22)

CIVIL PROCEDURE: Justice Leland DeGrasse should have appointed a referee or judicial hearing officer to supervise the ongoing deposition of Solomon Rapoport, the plaintiff in a suit against a retirement home, the Appellate Division said. The transcript of that part of the deposition that had already taken place corroborated the complaint of attorneys for the defendant that Rapoport's attorney repeatedly obstructed their examination of the plaintiff, the appellate panel explained. Modified. Rapoport v. Cambridge Development, LLC (May 20)

DIVORCE: Justice Jacqueline W. Silbermann was faulted by the Appellate Division for turning down Gregory Healy's bid for a reduction in his child support and spousal maintenance obligations based on her calculation of his average income over a four year period through 2004. Since Healy’s tax return for the last of the four years showed that his earnings had fallen sharply, and since Silbermann made no findings that Healy was attempting to hide income, she should have granted his motion for a reduction in his monthly payments, the appellate panel concluded. Healy v. Healy (May 22)

KINGS COUNTY

CRIMINAL: Justice Robert J. Collini repeatedly provided the jury in the manslaughter trial of Jean Neptune with his very own definition of “recklessly,” over the objections of Neptune’s attorney, who insisted that jurors should have been instructed to heed the Legislature’s substantially different definition of the term, as stated in the Penal Law and the Criminal Jury Instructions. According to the Apellatte Division, that constituted an error which fatally undermined the conviction of Neptune for the death of a passenger in her car, which she had crashed into two other vehicles. People v. Neptune (May 20)

TORT: Justice Ira Harkavy improperly allowed Mina Cohen to proceed with a slip-and-fall suit against a construction company based on an assumption that the company was responsible for a metal sign that was laying across a sidewalk treacherously concealed under a layer of snow, the Appellate Division said. It apparently struck Harkavy as a reasonable guess that the company had something to do with the hazard, since its name was on the sign and it held a building permit for an adjacent construction site. But the company demonstrated that it had performed no work at the accident location, and in the face of that showing, sheer speculation that the company might have been negligent wasn’t good enough, the appellate panel concluded, reversing Harkavy and summarily dismissing the suit. Cohen v. Schachter (May 20)

TORT: Justice Mark Partnow concluded erroneously, in the Appellate Division’s opinion, that Emilio Aloise wasn’t covered by the Labor Law because he wasn’t getting paid in cash for doing construction work on Alfred Saulo’s deck when he was struck in the eye by a nail. Indeed, the Labor Law doesn’t cover volunteers, the appellate panel observed. But Aloise for helping build Saulo’s deck in exchange for architectural services that Saulo had agreed to provide for a building that Aloise was planning to renovate, and that was enough to make him an “employee,” as defined in the Labor Law, so Partnow should not have summarily dismissed his claims brought under the statute, the panel concluded. Aloise v. Saulo (May 20)