GOING ROGUE
By Mark Thompson
Posted 10-29-08
Queens County Supreme Court Justice Duane Hart isn’t hesitant to dismiss lawsuits that, in his opinion, have no merit. The Appellate Division recently reversed him, for the third time this year, for kicking a case out of court before the plaintiffs knew what hit them. This time, Hart had summarily dismissed, on his own motion, an action for false arrest brought by Ling Fei Sun.
Judges have the right to take matters into their own hands and dismiss cases sua sponte, the Appellate Division acknowleged. But it is a power that is supposed to be used sparingly, and only under extraordinary circumstances that weren’t apparent to the panel in this case. Hart, in effect, awarded summary judgment to the city, based on evidence that was never entered into the record and without notice to Sun, the Appellate Division noted. “This was improper,” they concluded, emphasizing the point by directing that the case be sent back to court “for further proceedings before a different justice.” Ling Fei Sun v City of New York (October 21)
In August, the Appellate Division reinstated a lawsuit brought by a student who was raped in a school building, after that claim was abruptly dismissed by Hart. That case also was reinstated with instructions that it be handled the next time by a judge other than Hart.In May, Hart kicked Ku Sung Lee’s personal injury suit against her landlord out of court based on the defendant’s oral application for summary judgment, earning himself another reversal from the Appellate Division.
The latest appellate rebuke brings Hart’s total to 11 reversals, in full or in part, in the year to date.
OTHER NOTABLE REVERSALS
NEW YORK COUNTY
FAMILY: Justice Judith J. Gische granted a divorcing wife’s wishes in a dispute over how to value her husband’s shares in a company – prompting the Appellate Division to answer her 129-page decision with one of its longest opinions of the year. The appellate panel commended Gische for her “comprehensive, thoughtful and painstaking” ruling but ultimately reversed her decision, which delved into an issue that had not previously been addressed by an appellate court. In a 10,000-word treatise, replete with a 2,000-word partial dissent and another 2,000 words of footnotes, the appellate panel ruled that in the process of equitably distributing the marital assets, the value of the husband’s shares in a Subchapter C holding company, should be reduced to reflect the federal and state taxes embedded in the securities owned by the company, due to the unrealized appreciation of the securities. Wechsler v Wechsler (October 21)
TORT: Justice Debra A. James should have tossed out a judgment against the New York City school district, notwithstanding a jury verdict in favor of a teacher who was seriously injured by a treacherous set of double doors, the Appellate Division said. The doors were designed in such a way that when the teacher, Christopher Hotaling, exited from one side during a fire drill, he stepped right into the path of the other door, which was flung open by a student on his way out, knocking the teacher down. Perhaps the doors could have been more safely designed, but they fully complied with the Building Code when the school was built, and the testimony of Hotaling’s experts failed to establish that the design violated accepted industry standards at the time, a unanimous appellate panel concluded, reversing James and letting the city off the hook. Hotaling v City of New York (October 21)
CONTRACT: Justice Herman Cahn allowed an interior design firm to go to arbitration in a dispute with a disgruntled customer over a renovation contract that, according to the Appellate Division, wasn’t enforceable in the first place. The firm didn’t have a leg to stand on in seeking enforcement of the contract because the firm had engaged in the unauthorized practice of architecture, the appellate panel said. The overwhelming weight of the documentary evidence showed that the firm’s principals repeatedly characterized their work as "architectural." They also designed numerous detailed plans for mechanical functions and supervising the engineer and general contractor, and those tasks also constituted architectural work, not "interior design," as the defendants claimed, the appellate panel concluded, voiding the contract and scuttling the firm’s plans to take the dispute to arbitration. Dr. Alex Greenberg, DDS, PC v SNA Consultants, Inc. (October 21)
CONTRACT: Justice Marylin G. Diamond apparently detected some ambiguity in a contract for the sale of aircraft where the Appellate Division found none. Diamond allowed the buyer to proceed with a breach-of-contract counterclaim alleging that the seller failed to convey certain parts of the aircraft that were supposed to have been included in the deal. But the sale agreement clearly stated that the “acceptance certificate” would constitute conclusive proof that the buyer was satisfied with what it had received. The buyer had signed such a certificate after receiving the aircraft in question and therefore had no grounds for complaining after the fact that something was missing, a unanimous appellate panel concluded, reversing Diamond and dismissing the counterclaim. Embraer Finance Ltd. v Servicios Aereos Profesionales, S.A. (October 23)
ASSAULT: Justice Roger S. Hayes slapped Matthew Sanchez with a modestly excessive sentence of eight years in prison after he was convicted of participating in a gang assault, said the Appellate Division, which reduced the sentence to six years. People v Sanchez (October 23)
BRONX COUNTY
TORT: Justice Patricia Anne Williams gave too much slack to a dilatory plaintiff, the Appellate Division said. Williams allowed Freda Bailey to file a late claim seeking damages from the Housing Authority for the death of her son, who was shot while walking near a public housing complex. A unanimous appellate panel noted, however, that Bailey’s seven-month delay in seeking to file a claim put the agency at a serious disadvantage by making it difficult to identify witnesses to the shooting and collect statements from them while their memories were fresh. Moreover, the claim had no merit, given that the courts have repeatedly ruled that there is no common-law duty on the part of a landlord to protect tenants or passersby from criminal activity on public walkways. Thus, there was no reason to make an exception for Bailey from the rules requiring prompt notice of claims, the appellate panel concluded, reversing Williams and denying the claim. Matter of Bailey v City of New York Housing Authority (October 23)
KINGS COUNTY
TORT: Justice Laura Jacobson was reversed for allowing Marva Murray to proceed with an action for intentional infliction of emotional distress for damage to property. To recover damages for emotional distress, a plaintiff must demonstrate that the defendant engaged in conduct that was so outrageous that it would be “utterly intolerable in a civilized society.” Neither the property at the center of this case, nor the outrage that the defendant perpetrated against it, was described in the appellate ruling. But it was insufficient as a matter of law to constitute intentional infliction of emotional distress, the panel concluded in summarily dismissing the complaint. Murray v 600 E. 21st St., LLC (October 21)TORT: Justice Yvonne Lewis allowed Tamara Badalbaeva to proceed with a lawsuit against the city for tripping over a hazard that, according to the Appellate Division, was inherent to the area where the plaintiff chose to take a stroll – namely, a tree root protruding from the ground in a large grassy area shaded by numerous trees. A cable that was part of a fencing system at the border of the park allegedly prevented Badalbaeva from regaining her balance, but the appellate panel said that purported hazard was “open and obvious,” and shouldn’t have stopped Lewis from summarily dismissed the suit. Badalbaeva v City of New York (October 21)
QUEENS COUNTYTORT: Justice Marguerite Grays was too quick to dismiss Zuma Kucevic’s claim stemming from a frightening elevator accident, the Appellate Division said. The plaintiff was allegedly injured when an elevator she was taking to a higher floor suddenly changed direction and plummeted several floors before coming to an emergency stop. Neither the owner or managing agent of the building nor the company that had responsibility for maintaining the elevators made a showing that was sufficient to convince the appellate panel that there was nothing wrong with the elevator, or that if there was, the defendants were unaware of any defect. Reversing Grays, the panel reinstated Kucevic’s lawsuit. Kucevic v Three Park Avenue Building Co., L.P. (October 21)
TORT: Justice Howard Lane was reversed by the Appellate Division for holding the owner of the New York Mets responsible for a public boardwalk that runs between Shea Stadium and two nearby train stations. Lane bought the argument of Victoria Ruffino, who allegedly tripped and fell on an uneven piece of wood while walking on the boardwalk on her way to the stadium, that Sterling Mets, L.P., the team’s owner, enjoyed “special use” of the walkway and therefore had a legal obligation to make sure it was free of hazards. A unanimous appellate panel noted that Ruffino offered no evidence for her claim that the boardwalk was constructed solely for the stadium’s benefit, and there was no evidence that Sterling Mets owned, occupied or controlled the boardwalk. Lane therefore should have summarily dismissed Ruffino’s suit, the panel concluded. Ruffino v New York City Transit Authority (October 21)