The case involved an eviction proceeding against Michael Tsitsires, a mentally unstable man who lived off and on in a rent-controlled apartment in a deteriorating single room occupancy hotel, the Windermere, on West 57th Street in Manhattan. Lebovits had ruled in favor of his eviction on grounds that it was no longer his primary residence, accepting the landlord’s evidence that he had turned his apartment over to a girlfriend, had lived on the street for a number of years, and no longer even had a key to the place.

The Appellate Division majority ruling characterized the dissenters as “misguided” do-gooders who abandoned principles of adherence to the law and succumbed to the “well-intentioned impulse to protect the interests of a mentally ill individual or the desire to rule against the interests of a party characterized by newspapers as a “slumlord.’”  The “sad facts” of the case, however, clearly established that Tsitsires no longer lived there, the majority said.

The dissenters rebuked the majority for “facilitating a notorious slumlord's 20-year effort to empty its building of all tenants by evicting [Tsitsires]… on the dubious ground that he has abandoned the only home he has had for the past 35 years to take up residence in the  city's streets and parks.”

In fact, there was ample evidence that he had never abandoned the place, the dissenters said. But you wouldn’t know that from the judgment by Lebowitz. It is “seriously flawed and riddled with significant misstatements of fact and mischaracterizations of the trial testimony,” the dissenters asserted.
TOA Construction Co., Inc. v. Tsitsires


QUEENS COUNTY

TORT: Justice Marguerite A. Grays got caught in a tug of war between various Appellate Divisions around the state and the Court of Appeals over the circumstances under which the owner of an unleashed dog can be held liable for injuries attributable to the wayward pet. Grays dismissed the claim brought by mail carrier Melanie Petrone against the owner of a supposedly placid Rottweiler named Kai, as well as against the owner of the home where Kai was asleep, unleashed, on the lawn one day when Petrone arrived with the mail. There was some dispute as to whether Kai gave chase, but there apparently was no question that Petrone fled from the Rottweiler and injured herself in a frantic leap through the window of her vehicle. Grays dismissed the claim on grounds that neither defendant had ever been given any reason to think that Kai, an elderly dog hobbled with arthritis, had dangerous propensities. In fact, a Court of Appeals decision handed down seven months before Grays rendered her decision, Bard v. Jahnke, seemed to suggest that knowledge of dangerous propensities was an absolute necessity before an owner could be held liable for personal injuries caused by a domestic animal. The Appellate Division, however, distinguished Bard, which involved a bull that attacked painters in a barn, from its own line of cases involving unleashed dogs, and concluded that Second Department rulings were not abrogated by Bard. One of those rulings states  that while violation of a leash ordinance, standing alone, is insufficient to support a finding of liability against a dog owner, if the code violation is coupled with affirmative canine behavior such as an attack, an owner may be liable for injuries inflicted by dogs with a previously impeccable behavioral record. The panel therefore concluded that Grays properly dismissed the claim against the homeowner, who didn’t own the dog and wasn’t even home at the time. But the panel’s rule reactivated Petrone’s claim against the dog owner because her allegations raised an issue of fact as to whether Kai made a move on her or not. Petrone v. Fernandez (July 8)

TORT: Justice Peter Kelly should have granted judgment to defendant Christopher Mascera notwithstanding a jury verdict in favor of plaintiff Theodore Kilakos in a suit brought under the no-fault auto insurance law, the Appellate Division said. No rational jury could have concluded that Kilakos sustained a "significant limitation of use of a body function or system," a unanimous panel found.  The evidence showed that Kilakos had herniated discs. But he produced no objective tests showing a loss of range of motion, and even more conspicuously failed to demonstrate that the injuries stemmed from the collision with Mascera and not a prior motor vehicle accident in which Kilakos sustained injuries including a fractured hip and herniated discs. Kilakos v. Mascera (July 8)

BRONX COUNTY

TORT: Justice John A. Barone should have dismissed the complaint filed by Ines DeJesus against the Housing Authority for her alleged slip and fall on a small piece of carpet on the walkway near where trash is dumped, the Appellate Division said. The evidence mustered by DeJesus failed to convince the appellate panel that the hazard was present for long enough that defendant’s employees should have known about it. DeJesus v. New York City Housing Authority (July 8)

KINGS COUNTY

TORT: Justice Arthur Schack allowed plaintiff Miguel Carcamon to bolster his case with inadmissible hearsay evidence, said an Appellate Division panel. The ambulance and emergency room records, prepared by nonwitnesses and apparently introduced without a proper foundation, supported Carcamon’s account of the traffic accident at issue in the case, compelling the appellate panel to toss out the jury verdict that found defendant Martin Stein entirely to blame. Maybe the jury would have found Stein liable without the hearsay statements, but maybe not, said the appellate panel, which concluded that “since the effect of these statements on jury deliberations is unknown, we cannot say that their admission was harmless.” Carcamo v. Stein (July 8)

TORT: Justice Jack Battaglia should have summarily dismissed, on the city’s motion, the wrongful death suit brought by relatives of a sanitation worker who was killed by a hit and run driver while stepping into a roadway to retrieve a dead cat. The Appellate Division said the city earned a dismissal of the claim by showing that the victim was an experienced sanitation worker, that it was part of his work to pick up dead animals from the roadway, and the hazards inherent in that task including the risk of being hit by a car, were readily observable to him. Consalvo v. City of New York (July 8)

RICHMOND COUNTY

TORT: Justice Robert Gigante put a lid on a personal-injury plaintiff’s medical records that the defendant had every right to peruse, the Appellate Division said. The information concerned an accident that the plaintiff had been involved in six years before. “Since the nature and severity of the plaintiff's prior physical injuries may have an impact upon the amount of damages recoverable for a claim of loss of enjoyment of life, the records and reports regarding those prior injuries are material and necessary to the defense,” the appellate panel said. Orlando v. Richmond Precast, Inc. (July 8)

TORT: Justice Philip Minardo was reversed for denying the plaintiff’s motion for a unified trial on liability and damages in a suit brought by Nicholas D’Amato, a seven-year-old child, against his playmate, James Yap, and Yap’s parents for an injury he sustained while playing with the lights out in the basement of the Yap family home. Shortly after James turned out the lights, Nicholas fell and poked his eye on a tool. “The evidence of Nicholas' injuries had an important bearing on the issue of liability, which entitled the plaintiffs to a unified trial of the issues of liability and damages,” the appellate panel said. D'Amato v. Yap  (July 8)