Conroy produced the documents for the purpose of helping Zylka deceive his creditors and keep them at bay, and if they had worked as intended, they never would have been used in the ensuing bankruptcy and foreclosure actions, the appellate panel explained. Thus, there was no basis for the jury’s conclusion that Conroy’s “conscious objective” in creating either document was that they would be used in an official proceeding, a necessary element for a tampering conviction.

The Appellate Division gave no indication as to how its ruling would affect the sentence imposed on Conroy, who was once a partner with a well-known law firm in Manhattan. Conroy was disbarred in 2003. People v. Conroy (July 15)

OTHER NOTABLE REVERSALS

NEW YORK COUNTY

PUBLIC INFORMATION: Justice Shirley Werner Kornreich ordered an agency that is weighing Columbia University’s proposed expansion in West Harlem to release somewhat more of a consultant’s work-product than the plaintiffs are entitled to see, said a divided Appellate Division panel, modifying Kornreich’s ruling on a Freedom of Information Law request. A dissenter, however, asserted that Kornreich should have kept a lid on most of the information sought by the plaintiffs, a group of local businesses that have concerns about the 17-acre development. Most of the material prepared by the consultant is covered by the Freedom of Information Law’s intra-agency exemption, the dissenter insisted. But the chink in the agency’s protection from disclosure, as far as Kornreich and the appellate panel majority were concerned, was that both the agency and Columbia University had, at various times, sought the consultant’s advice on issues related to the proposed campus expansion. The problem with the majority’s approach, the dissenter complained, is that Freedom of Information Law applicants will now be able to evade the exemption for intra-agency documents “merely by alleging the appearance of a bias, in this instance a conflict of interest, on the part of consultants retained by an agency… whether the consultants were the most qualified, lacked an actual conflict or bias, or gave the best possible advice.” As a result, agencies will avoid seeking recommendations from consultants and the quality of agency decisions will suffer, the dissenter predicted. Matter of Tuck-It-Away Associates, L.P. v. Empire State Development Corp. (July 15)

LANDLORD TENANT: Justice Kornreich was reversed in a second case on the same day for annulling major capital improvement rent increases granted by the Division of Housing and Community Renewal to a landlord which had replaced manually operated elevators with automatic units. In doing so, Kornreich improperly expanded the scope of an earlier court order, which required the landlord to install security equipment in elevators. That order barred rent increases for installation of the security equipment but did not concern the cost of replacing the elevators themselves, the appellate panel concluded, reversing Kornreich and reinstating the rent increases. Matter of 900 West End Avenue Tenants Association v. New York State Division of Housing and Community Renewal (July 15)

LABOR LAW: Justice Rolando T. Acosta erred in dismissing a claim against a tenant brought under the Labor Law provision governing elevation related risks by Miliha Ferluckaj, an employee of a cleaning service company who fell off a desk while cleaning windows. Under a recent Court of Appeals ruling, window cleaning is expressly afforded protection under the Labor Law section in question, known as the scaffold law, whether or not the cleaning is incidental to construction or any other activity enumerated in the statute. Acosta, who was elevated to the Appellate Division after issuing his ruling in this case, also erred in dismissing the complaint on the basis that Ferluckaj’s actions were the sole proximate cause of her accident, the appellate panel said. The desk she was using to reach the windows when she fell did not constitute an adequate safety device, and the sole proximate cause defense does not apply where a plaintiff was not provided with an adequate safety device, the panel explained. Ferluckaj v. Goldman Sachs & Co. (July 15)

QUEENS COUNTY

TORT: Justice Duane Hart should have summarily dismissed the complaint brought against Joel Cohen, the driver of a car that was hit head on by another car, which crossed a double yellow line. The evidence submitted with the motion for summary judgment established that Cohen was faced with an “instantaneous cross-over emergency, not of his own making,” leaving him with only a second or two to react and virtually no opportunity to avoid a collision, the Appellate Division said, reversing Hart and dismissing the complaint. Koenig v. Lee (July 15)

KINGS COUNTY

TORT: Justice Laura Jacobson allowed Rose Matra to proceed with a “serious injury” claim under the no-fault insurance law even though the magnetic resonance imaging reports and other medical evidence purporting to show the extent of her injuries was unsworn, the Appellate Division said, reversing Jacobson and dismissing the claim. Matra v. Raza (July 15)