Judicial Reports: The Reversal Report for 09-29-06
By Mark Thompson
Posted 09-29-06
New York County Justice Faviola A. Soto has kept a dubious streak alive. For the fourth month in a row, the appellate department has reversed or modified one of her decisions. In fact, Justice Faviola has had a ruling reversed or partially overturned at least once in every month except January and May since the start of the year.
The most recent appellate rebuke came September 26 in the case of Paul O'Reilly-Hyland v. Liberty Management & Construction Ltd. In an architectural malpractice and breach of contract action, she upheld a jury verdict awarding the plaintiffs $167,998 for breach of contract while handing the defendant $160,171 on its counterclaim. The appellate department found that the award to the plaintiff was based on a fair interpretation of the evidence, but the judgment on the counterclaim was excessive. The defendant had asked for just $112,749.99, and the award approved by Soto should not have exceeded the amount sought, the appellate judges declared.
Soto’s unbroken string of monthly appellate setbacks through the summer began June 15 when the appellate department modified a decision in which she dismissed causes of action in a suit filed by Duane Reade stores against an allegedly shoddy contractor.
Soto was struck two times in the following week, first on June 20 for awarding damages to an intoxicated woman who was hit by a bus and two days later for denying a defendant’s motion to dismiss a defamation suit.
In July, Soto was reversed for denying a defendant’s motion to vacate a default judgment, despite the fact that, as the appellate division saw it, the defendant had a good excuse for the default and a meritorious case.
On August 3, Soto was reversed for denying a defendant’s motion to dismiss a suit against the city in a contract dispute. And on August 31, the appellate department modified a discovery order entered by Soto in a suit against a school district that had allegedly ignored indications that one of its teachers was sexually abusing students.
For how many months can Soto keep his streak alive? We’ll keep you posted.
OTHER NOTABLE REVERSALS
NEW YORK COUNTY
Speaking of multiple reversals, Justice Walter B. Tolub was overturned twice on September 26. In one case, he found that a “production estimate” describing a photo assignment was a binding contract between a shoe company and the plaintiff, a photographer named Nicola Majocchi. In Stockland Martel, Inc. v. Donald J. Pliner of Florida Inc., the appellate department disagreed on grounds that there was no indication of mutual assent to all of the material terms, without which there can be no enforceable contract. A company official initialed part of the document, but only to indicate that the price estimate for the photo shoot was within budget.
In the other case, Justice Tolub concluded that the plaintiff, a tenant in a building at 236 West 40th Street, was the new rightful owner of the building pursuant to a right of first refusal. The appellate department, however, in Philippine American Lace Corp. v. 236 West 40th Street Corp., found that the defendant, which had recently purchased the property, was never informed by the seller about the right of first refusal, nor was it mentioned in the plaintiff’s lease.
Justice Helen C. Sturm ordered Noelle Penraat, the biological mother of two boys, to pay $958.33 per month in child support to their adoptive mother, Alexis D. Frazier, following the breakup of the pair’s 14-year same-sex relationship. The appellate department recalculated assets and income and, in Frazier v. Penratt (Sept. 26), reduced Penraat’s support obligation to $600 a month.
Justice Sherry Klein Heitler concluded that Rhona Silverman, a former associate attorney in the law firm of Bruce G. Clark & Associates, had a viable defamation claim against the firm and its principal for sending denigrating letters to clients she was allegedly trying to poach. The firm told them they might want to know that she had won only two cases while losing four in her three-and-half years with the firm. Moreover, the firm told them, she was so hard up for money that she couldn’t afford a decent answering machine and therefore might be overly eager to settle their cases for quick cash. The appellate department, in Silverman v. Clark (Sept. 26), concluded that Justice Heitler should have dismissed the complaint because Silverman neglected to take a necessary step in a motion to dismiss a defamation claim: an offer of proof that the disparaging statements about her were false.
Justice Milton A. Tingling allowed Toby and Cannon Stamm to proceed to trial to seek damages for psychological injuries that they claimed were a result of an auto accident 20 years earlier. They were toddlers strapped into the backseat of their family’s car when it was struck in the rear by the defendant’s car, crippling the passenger in the front seat, their mother. The appellate judges agreed that the boys very well might have been emotionally damaged by the experience of growing up with a disabled mother. But the judges explained in Stamm v. PHH Vehicle Management Services, LLC, (Sept. 26), that in order to recover for an alleged emotional injury based on the “zone of danger” theory of liability, the boys would need to prove that their injuries stemmed directly from their observation of the accident, a connection they were unable to make, given that they admittedly barely remembered the tragic crash.
QUEENS COUNTY
Judge Martin Schulman was struck down twice in one day — in each case for prematurely sending a plaintiff with a personal injury claim packing. In one case, he dismissed Sharonell Herring’s complaint seeking damages for injuries she allegedly sustained when she tripped on a crack in a parking lot, a hazard the judge deemed trivial. In Herring v. Lefrak Organization (Sept. 19), the appellate department pointed out that whether a defective condition is trivial or not depends on the particular facts and circumstances of each case. In this case, Herring was carrying her three-year-old son in her arms while fleeing from a pit bull. Under that circumstance, as the appellate judges saw it, the crack loomed much larger than it otherwise might have, so the plaintiff deserved a day in court against the owner of the parking lot.
In the other case, stemming from a two-vehicle car crash, Justice Schulman tossed out a complaint filed by Thomas M. Connors. Since he was driving the vehicle that struck the other in the rear, the driver of the car he hit, Clotilde Sepulveda, could hardly be blamed for the accident, Justice Schulman reasoned. However, the appellate department, in Thomas v. Flaherty (Sept. 19), found that the presumption that usually attaches fault to the driver who strikes another in the rear was overcome in this case by Sepulveda’s admission that moments before the crash she had made an illegal U-turn into Connors’s lane. The appellate judges concluded that it would take a trial to decide who was at fault.
Justice Joseph P. Dorsa concluded that a cooperative in Forest Hills is violating the state’s antitrust law, the Donnelly Act, by giving Austin Sheppard Realty an effective monopoly over the sale of shares. The appellate department disagreed, noting in Benjamin of Forest Hills Realty, Inc. v. Austin Sheppard Realty, Inc. (Sept. 19), that while the plaintiff, a broker who was shut out of doing business with the co-op, might have lost a few commissions because of the co-op’s exclusive relationship with Austin Sheppard, that hardly amounts to an injury to Benjamin Realty’s ability to compete in the market as a whole; thus, the broker has no claim under the statute.
Justice Simeon Golar agreed with State Farm that the “earth movement” exclusion in its policy spared the insurer from liability for damage that occurred when earth disappeared from beneath a building owned by policyholder Deborah Lee. The appellate department, however, in Lee v. State Farm Fire & Casualty Co. (Sept. 19), concluded that State Farm’s policy unambiguously covered Lee’s loss. The exclusion defines earth movement as “sinking, rising, shifting, expanding, or contracting of earth” and in this case, the earth did none of those things but instead receded from underneath Lee’s dwelling because of an excavation on an adjacent parcel.
Justice Jaime Rios allowed the New York City Transit Authority to go ahead with condemnation proceedings that would force the Long Island Rail Road to give up use of tracks on a parcel of land in Maspeth where the transit agency intended to construct a bus depot and maintenance facility. The appellate department, however, concluded in Matter of Metropolitan Transit Authority (Sept. 19) that the state courts have no authority over the condemnation proceeding because it is preempted by the federal the Interstate Commerce Commission Termination Act of 1995.
KINGS COUNTY
Justice Stewart Weinstein denied a motion to suppress a gun that a juvenile, identified in the ruling as Emmanuel O., dropped as he fled into a building from undercover officers who asked him if he lived there. In Matter of Emmanuel O.(Sept. 19), the appellate department concluded that even if the officers, who were called to the building by a complaint about a raucous party, had a credible reason to initiate the encounter with Emmanuel in the first place, the fact that he responded by opening the inner door of the vestibule and running inside was insufficient, under the circumstances, to give rise to a reasonable suspicion that he was engaged in criminal activity. So Weinstein erred in admitting the gun as evidence in the delinquency proceeding.
Posted by Dirk on September 29, 2006 03:16 PM to Judicial Reports