HARD HART
By Mark Thompson
markthomp@yahoo.com
Posted 08-20-08
Queens County Justice Duane Hart decided, even before the trial in his court got underway, that a high school student’s effort to blame the school district for a rape by a fellow student was “deficient,” according to the Appellate Division. The Justice’s disdain for the plaintiff’s claim was so flagrant that a unanimous appellate panel was compelled to toss out his judgment in favor of the school district and send the case back to court for a new trial – before a different judge.
The student, identified in the public record as Jane Doe, sued the school district for negligent supervision after she was raped by a fellow student in a stairwell at Bayside High School. Hart dismissed the claim, as a matter of law, after the student presented her case – or at least that part of it that Hart saw fit to let in.
Quite a bit of crucial evidence didn’t get in that should have, according to the appellate court, because it was relevant to Doe’s claim that the attack was foreseeable and that school officials breached their duty to provide adequate supervision that might have prevented it. In pretrial rulings, Hart barred Doe from telling the jury about, for instance, the alleged attacker's prior school records, or records of prior assaults by students at the school, including a rape that was committed in a stairwell. Hart also improperly excluded evidence that a school aide assigned to patrol the third-floor hallway and an abutting stairwell where the attack allegedly took place never patrolled the stairwell that afternoon, and that a school safety agent who was absent on the day in question was not replaced.
Hart committed yet another error by rejecting expert witnesses proposed by the plaintiff who should have been allowed to offer their opinions, which “went to matters beyond the ken of the ordinary juror and would have aided the jury in determining whether the attack on the plaintiff was foreseeable and whether the defendants breached their duty to provide adequate supervision,” the appellate panel said.
Maybe it was just as well that those experts stayed home. The witnesses who were allowed to testify for Doe were manhandled by Hart, to hear the appellate panel tell it. Hart “improvidently exercised [his] discretion in, among other things, unnecessarily and repeatedly questioning the plaintiffs' witnesses in a manner designed to elicit responses commensurate with [his] apparent evaluation of the plaintiffs' case as deficient,” the appellate panel said.
The evidence that got in, combined with the compelling evidence that was improperly precluded by Hart, “was sufficient to make out a prima facie case of negligent supervision,” concluded the appellate panel, reinstating Doe’s claim against the school district with a parting shot at Hart. “In view of the bias in favor of the defendants exhibited by the court, a new trial before a different justice is required.” Doe v. Department of Education of City of New York (August 12)
OTHER NOTABLE REVERSALS
KINGS COUNTY
FAMILY: Kings County Family Court Judicial Hearing Officer Betty Staton erred, according to the Appellate Division, in awarding custody of two children to a mother who had previously engaged in sexual misconduct with another young son. The appellate panel concluded that returning the children, including a 10-year-old son, to their mother would put their health at imminent risk. They had been removed from their mother because of her “admitted sexual interaction with her first-born son.” Nothing in the record of the proceeding before Staton convinced the appellate panel that anything had changed. Her undisputed dalliance with her own young son reflected a “deeply flawed understanding of parental duties,” said the appellate panel, which was unconvinced that the mother has faced up to her failings. Staton “should have drawn an adverse inference against the mother based upon her failure to testify on her own behalf and in light of [Staton’s] determination that she was less than forthcoming with the clinical psychologist whom she called as an expert witness,” the appellate panel noted. The hearing officer’s ruling in favor of the mother was all the more baffling given that there was an apparent alternative arrangement for the children. The mother indicated that the children’s father was willing to assume custody if her petition to get her kids back is denied. Matter of Rosy S. v. Ivelisse T. (August 12)
BRONX COUNTY
TORT: Justice Paul A. Victor should have granted summary judgment on the issue of liability to Joaquin Campuzano, a worker who was injured when he was knocked from a ladder by a falling ceiling duct, the Appellate Division said. Campuzano demonstrated that his employer was liable under the Labor Law section governing use of scaffolds at worksites by presenting testimony, which was uncontradicted by the employer, about the woefully inadequate equipment that he and a coworker were provided for the asbestos abatement project. The scaffold would have been unsafe because it was too small for the job, and the alternative device, the ladder, that Campuzano used instead was also unsafe for the job, the appellate panel concluded. Campuzano v. Board of Education of the City of New York (August 12)
NEW YORK COUNTY
MARITIME: Justice Carol Edmead erred in concluding that a barge that spent almost all of its time moored to a bank abutting a power plant was a “vessel” as defined in U.S. maritime law, the Appellate Division said. The barge housing an electricity generating turbine, in fact, floated and rose and fell with the tides. It was even towed through waterways occasionally. But those occasions were only once every decade or so, when the barge was hauled to a dry dock for maintenance, the appellate panel pointed out. The barge spent virtually all of its life as an appurtenance of the land-based Astoria Generating Company power plant, and as such, was not a "vessel" under the Longshore and Harbor Workers' Compensation Act, the panel concluded. The state Labor Law claims against the power plant owner filed by James D. Lee, who was working on the barge when he was injured, therefore are not precluded by the federal statute, the court concluded. Lee v. Astoria Generating Co., L.P. (August 12)
QUEENS COUNTY
CONTRACT: Justice David Elliot was too quick to let Cellpoint Inc. duck out of honoring a guarantee to Chase Bank, on the dubious strength of the company’s weak claim that it was not bound by a stipulation signed by the company president on behalf of another entity, the Appellate Division said. The agreement between the bank and Cellpoint was invalid, according to Elliot, because it was not in writing and therefore violated the Statute of Frauds. The appellate panel, however, found that the stipulation signed by Cellpoint’s president is arguably binding on Cellpoint, even though the name Cellpoint doesn’t appear on the signature page. The company, after all, made 13 payments totaling $77,500 under the stipulation that it now wants to disown. Under the ambiguous circumstances surrounding the stipulation, Chase should be allowed to proceed to court with its claim seeking to force Cellpoint to make good on the guarantee, the appellate panel concluded. JP Morgan Chase Bank, N.A. v. Cellpoint Inc. (August 12)
Hart committed yet another error by rejecting expert witnesses proposed by the plaintiff who should have been allowed to offer their opinions, which “went to matters beyond the ken of the ordinary juror and would have aided the jury in determining whether the attack on the plaintiff was foreseeable and whether the defendants breached their duty to provide adequate supervision,” the appellate panel said.
Maybe it was just as well that those experts stayed home. The witnesses who were allowed to testify for Doe were manhandled by Hart, to hear the appellate panel tell it. Hart “improvidently exercised [his] discretion in, among other things, unnecessarily and repeatedly questioning the plaintiffs' witnesses in a manner designed to elicit responses commensurate with [his] apparent evaluation of the plaintiffs' case as deficient,” the appellate panel said.
The evidence that got in, combined with the compelling evidence that was improperly precluded by Hart, “was sufficient to make out a prima facie case of negligent supervision,” concluded the appellate panel, reinstating Doe’s claim against the school district with a parting shot at Hart. “In view of the bias in favor of the defendants exhibited by the court, a new trial before a different justice is required.” Doe v. Department of Education of City of New York (August 12)
OTHER NOTABLE REVERSALS
KINGS COUNTY
FAMILY: Kings County Family Court Judicial Hearing Officer Betty Staton erred, according to the Appellate Division, in awarding custody of two children to a mother who had previously engaged in sexual misconduct with another young son. The appellate panel concluded that returning the children, including a 10-year-old son, to their mother would put their health at imminent risk. They had been removed from their mother because of her “admitted sexual interaction with her first-born son.” Nothing in the record of the proceeding before Staton convinced the appellate panel that anything had changed. Her undisputed dalliance with her own young son reflected a “deeply flawed understanding of parental duties,” said the appellate panel, which was unconvinced that the mother has faced up to her failings. Staton “should have drawn an adverse inference against the mother based upon her failure to testify on her own behalf and in light of [Staton’s] determination that she was less than forthcoming with the clinical psychologist whom she called as an expert witness,” the appellate panel noted. The hearing officer’s ruling in favor of the mother was all the more baffling given that there was an apparent alternative arrangement for the children. The mother indicated that the children’s father was willing to assume custody if her petition to get her kids back is denied. Matter of Rosy S. v. Ivelisse T. (August 12)
BRONX COUNTY
TORT: Justice Paul A. Victor should have granted summary judgment on the issue of liability to Joaquin Campuzano, a worker who was injured when he was knocked from a ladder by a falling ceiling duct, the Appellate Division said. Campuzano demonstrated that his employer was liable under the Labor Law section governing use of scaffolds at worksites by presenting testimony, which was uncontradicted by the employer, about the woefully inadequate equipment that he and a coworker were provided for the asbestos abatement project. The scaffold would have been unsafe because it was too small for the job, and the alternative device, the ladder, that Campuzano used instead was also unsafe for the job, the appellate panel concluded. Campuzano v. Board of Education of the City of New York (August 12)
NEW YORK COUNTY
MARITIME: Justice Carol Edmead erred in concluding that a barge that spent almost all of its time moored to a bank abutting a power plant was a “vessel” as defined in U.S. maritime law, the Appellate Division said. The barge housing an electricity generating turbine, in fact, floated and rose and fell with the tides. It was even towed through waterways occasionally. But those occasions were only once every decade or so, when the barge was hauled to a dry dock for maintenance, the appellate panel pointed out. The barge spent virtually all of its life as an appurtenance of the land-based Astoria Generating Company power plant, and as such, was not a "vessel" under the Longshore and Harbor Workers' Compensation Act, the panel concluded. The state Labor Law claims against the power plant owner filed by James D. Lee, who was working on the barge when he was injured, therefore are not precluded by the federal statute, the court concluded. Lee v. Astoria Generating Co., L.P. (August 12)
QUEENS COUNTY
CONTRACT: Justice David Elliot was too quick to let Cellpoint Inc. duck out of honoring a guarantee to Chase Bank, on the dubious strength of the company’s weak claim that it was not bound by a stipulation signed by the company president on behalf of another entity, the Appellate Division said. The agreement between the bank and Cellpoint was invalid, according to Elliot, because it was not in writing and therefore violated the Statute of Frauds. The appellate panel, however, found that the stipulation signed by Cellpoint’s president is arguably binding on Cellpoint, even though the name Cellpoint doesn’t appear on the signature page. The company, after all, made 13 payments totaling $77,500 under the stipulation that it now wants to disown. Under the ambiguous circumstances surrounding the stipulation, Chase should be allowed to proceed to court with its claim seeking to force Cellpoint to make good on the guarantee, the appellate panel concluded. JP Morgan Chase Bank, N.A. v. Cellpoint Inc. (August 12)