In April, a unanimous panel reversed Tuitt for striking a defendant’s answer unless he appeared for a deposition within 90 days. In that case, the plaintiffs made an insufficient showing of a good faith effort to locate the defendant, the appellate judges said. Henderson v. Shadmi (April 8)

In March, Tuitt was reversed for striking portions of a defendant’s answer for allegedly taking too long to comply with the plaintiff’s demand for the last known home address of one of defendant's former employees. That lapse wasn’t part of any pattern of deliberate delay, a unanimous appellate panel said, and besides, the plaintiff had already deposed the former employee. Martinez v Goldrose Management, Inc. (March 27)

In February, Tuitt was reversed for precluding the defendant in a car-crash case from offering evidence that the driver had suffered a stroke shortly before the accident. The Appellate Division didn’t say what the defendant had done to earn Tuitt’s wrath in that case, but it was neither willful nor prejudicial to the plaintiff, a unanimous appellate panel said. Sosa v Kasim (February 21)

Tuitt was reversed once last year for flying off the handle for discovery violations by a defendant that were excusable, as far as a unanimous appellate panel was concerned. Diaz v. Rose (May 22, 2007)

OTHER NOTABLE REVERSALS

NEW YORK COUNTY

COMMERCIAL PART: All in one day, the Appellate Division handed down six rulings reversing, in full or in part, decisions by judges on the elite Commercial Part, which handles complex business litigation. Justice Charles E. Ramos picked up two of the slew of reversals and modifications issued June 10, bringing his part-leading total for the year to twelve.

In both of the recent cases, Ramos got it partly right. But in one of the cases, he dismissed an entire complaint, which sought both a transaction fee and a retainer fee. Yet in his ruling, he addressed only the former issue without touching on the latter. Ramos properly dismissed the claim for a transaction fee, but on remand, he needs to take a look at the other part of the complaint, the Appellate Division said. Hallmark Capital Corp. v. Courtenay (June 10)

In the second case, Ramos again threw a baby out with the bath water, so to speak. He properly dismissed a fraud claim. But he should have allowed the plaintiffs to proceed with their claims for breach of the duty of good faith and fair dealing and specific performance, the Appellate Division said. Sorenson v Bridge Capital Corp. (June 10)

Justice Bernard J. Fried was reversed once on June 10, bringing his total for the year to seven, placing him in a tie with Justice Richard B. Lowe III for second most reversed judge so far this year among the seven jurists on the Commercial Part. Fried too hastily dismissed a suit alleging a breach of fiduciary duty in a case that was too factually tangled for summary adjudication, the Appellate Division said, sending the case back to Fried for a more careful examination of the dispute. Littman v. Magee (June 10)

Justice Helen E. Freedman now has six reversals this year, after picking up two new ones last week. She was reversed for denying a motion to dismiss a claim alleging exposure to asbestos insulation by a worker who, according to the appellate panel, offered no evidence that he even knew what asbestos insulation looks like. Matter of New York County Asbestos Litigation (June 10)

In the second case, Freedman was reversed for failing to defer to a lawsuit underway in Ohio among parties that are also suing each other in Texas and New York. Certain Underwriters at Lloyds, London v. Millennium Holdings LLC (June 10)

Another member of the part, Judicial Hearing Officer Ira Gammerman, was reversed for too hastily awarding summary judgment to the plaintiff in a dispute over who should pay the “flip tax” incurred in the sale of shares in a cooperative corporation. Carling v. 205-69 Apartments Inc. (June 10). That brings Gammerman’s total for the year to three.

The sixth member of the Commercial Part, Justice Herman Cahn, added no new reversals to his total of three for the year. The newest judge in the unit, Justice Eileen Bransten, who was named to the position this spring, has been reversed just once on an attorneys-fee issue that predated her appointment to the Commercial Part.

TORT: Justice Jane S. Solomon put the burden on Lauren Miller to prove that she could not successfully serve a lawsuit on a Chinese manufacturer of an allegedly defective bungee cord that broke and hit her in the eye. According to the Appellate Division, Solomon should have put the burden on Staples, which sold the product, to prove that Miller could haul the foreign firm into the New York court. Solomon’s ruling would have allowed the retailer to get away with paying only a percentage of the damages claimed by Miller, on the theory that since the retailer bears no more than 50 percent of liability, apportionment of damages applies in the case. Solomon “failed to recognize the fundamental principle that a party moving for affirmative relief” – in this case, Staples – “has the initial burden on the motion.” Solomon also should have allowed Miller to amend her pleadings to assert that apportionment can’t be invoked in this case because “jurisdiction over the manufacturer could not with due diligence be obtained.” The proposed amendment clearly had merit, the appellate panel said, since at the time, even Staples wasn’t sure which company in China had made the cord, not to mention whether that unknown company had enough contacts with New York to fall within the reach of the state’s courts. Miller v. Staples the Office Superstore East, Inc. (June 12)

CHILD SUPPORT: A mother named Anna-Sophia succeeded in extracting more than $2,200 a month in child support from John, the father of her autistic child, after disproving his claim that he was penniless and shouldn’t have to pay more than $25 a month. Nonetheless, the support magistrate who made the finding in Anna-Sophia’s favor refused to award her attorneys fees as the “prevailing party,” evidently on grounds that the bill run up by her lawyers was excessive. Family Court Justice Jody Adams affirmed the magistrate’s ruling but she should have vacated the denial of fees and set the matter for a hearing. If Anna-Sophia’s legal fees are excessive, John can make that case in that proceeding, the appellate panel said. Anna-Sophia L. v. Paul H. (June 12)

SENTENCING: Justice James A. Yates imposed a slightly excessive sentence on Rajindranauth Susankar, who was convicted of second-degree murder and other offenses, said the Appellate Division, trimming Yates’ 26-year prison term by four years. People v. Susankar (June 12)

BRONX COUNTY

EVIDENCE: Justice Megan Tallmer allowed prejudicial evidence into the welfare-fraud trial of Marilyn and Roosevelt Council, scuttling convictions that, according to the Appellate Division, were otherwise supported by legally sufficient evidence. The faulty evidence included two welfare-eligibility recertification forms that prosecutors initially said contained false information but later conceded were correct. Prosecutors also violated the Council’s right against self-incrimination by arguing that their refusal to speak to an investigator was evidence of their guilty intent, the appellate panel said, reversing the convictions and remanding the case for a new trial. People v. Council (June 10)

TORT: Justice Sallie Manzanet-Daniels thought she erred when she considered a supplemental submission on the issue of residence filed by a hospital that was seeking to change the venue of a wrongful death and medical malpractice action from the plaintiff-friendly environs of the Bronx to Manhattan. To fix that presumed mistake, Manzanet-Daniels granted the plaintiff’s motion to reargue the change of motion that she had decided in the hospital’s favor. In fact, said the Appellate Division, there was nothing wrong with considering the supplemental submission, since the plaintiffs waived any objection to it and submitted their own supplemental reply. Thus, the judge’s grant of the motion to reargue to correct a nonexistent error was itself an error, as was another of her pretrial rulings in the case. Manzanet-Daniels granted the plaintiffs’ motion to consolidate their case with another suit filed in the Bronx against the Manhattan hospital by another patient who was exposed to the same Legionella bacteria as the decedent in this case. That was inappropriate, the appellate panel said, because individual issues including each patient’s personal medical history predominate. Addison v. New York Presbyterian Hospital/Columbia University Medical Center (June 10)

KINGS COUNTY

TORT: Justice Sylvia Hinds-Radix accepted a mighty loose excuse offered by city lawyers for missing a statutory deadline for answering a lawsuit, the Appellate Division said. Lawyers said the city’s legal department “receives thousands of summonses each month” and therefore, presumably, should be forgiven if some of them happen to fall through the cracks. That explanation didn’t persuade an appellate division panel, which reversed Hinds-Radix’s ruling compelling the plaintiff to accept the belated answer. Holloman v. City of New York (June 10)

DIVORCE: Justice Sarah Krauss erred in deciding Michael D. Carlin’s motion for temporary custody of the parties' children without first holding a hearing, the Appellate Division said. A hearing may be dispensed with if the facts are uncontroverted. But Carlin’s allegations were disputed by his ex-wife. Krauss, therefore, needs to hold a hearing to determine what temporary custody arrangement will serve the best interests of the children, the appellate panel said. Carlin v. Carlin (June 10)

QUEENS COUNTY

DIVORCE: Justice Esther Morgenstern granted a divorce to a wife on grounds that her husband’s apparent refusal to have sex with her constituted constructive abandonment. The wife’s testimony, however, didn’t satisfy the Appellate Division panel. She failed to establish that she “repeatedly requested a resumption of sexual relations” with her husband. She is entitled to divorce on grounds of constructive abandonment only if she can prove that he spurned her demands, the appellate panel concluded, reversing Morgenstern, dismissing the action for a divorce, and sending the neglected wife back to try again. Warman v. Warman (June 10)