OTHER NOTABLE REVERSALS 

QUEENS COUNTY

Justice James Dollard was reversed twice on October 3 by two different panels of the 2nd Appellate Department. One panel, in Burgos v. Vargas, dismissed a complaint that had passed muster with Justice Dollard. The appellate judges, citing a doctor’s report indicating that Sonia Toribio had a full range of motion in her spine, concluded that she had not sustained a serious injury. Another appellate panel, in Garcia v. Munseob, reinstated an action that Justice Dollard had dismissed for lack of personal jurisdiction. A hearing was necessary to determine whether the action had been properly served on the defendant, the appellate judges concluded.

Family Court Justice Guy DePhillips denied a father’s petition to win custody of his child from the maternal grandmother, and apparently did so without holding an evidentiary hearing. That was a mistake, said the appellate department in Matter of Bermeo v. Rios (Oct. 3). When a nonparent is vying for custody with the parent of a child, the nonparent has the burden of proving that “extraordinary circumstances” justify taking the child from its parent. Justice DePhillips did not require the grandmother in this case to prove why she should be allowed to keep the child.

Justice Orin Kitzes dismissed a slip and fall lawsuit, but the appellate department reinstated the claim. The judges explained in Musso v. Macray Movers Inc. (Oct. 3) that a landowner has the burden of demonstrating that it didn’t know about a hazardous condition in time to fix the problem, yet in this case, the defendant failed to refute indications that an icy patch was present for several days before Elroy Musso slipped and fell on it.

Justice Augustus C. Agate cut Domenici Narisi too much slack for failing to appear at a hearing, the appellate department concluded in Cruz v. Narisi (Sept. 26). Justice Agate vacated a $25,000 default judgment entered against Narisi in a personal injury suit stemming from a traffic accident, accepting her claim that she was never served with the complaint. The appellate department, however, didn’t buy her excuse. A copy of the suit was properly delivered to her address on record with the Department of Motor Vehicles. It was her own fault that she had moved to a different address two years earlier without fulfilling her legal obligation to update her DMV record.

NEW YORK COUNTY

Justice Carol Edmead dismissed a claim for insurance coverage for losses stemming from a fire at a jewelry manufacturing facility in Mexico. The policyholder was out of luck, in her opinion, because the company had breached a provision requiring it to preserve videotape captured by surveillance cameras until viewed by the loss adjuster. The appellate department agreed that Anjay Corp. violated the policy provision by recording over the videotape from the day of the fire, but reversed Justice Edmead anyway. The appellate panel explained in Anjay Corp. v. Those Certain Underwriters at Lloyd's of London subscribing to Certificate No. HN01AAF4393  (October 3), that the breach wasn’t “material” because videotaping could not have prevented the accidental workplace fire. Judging from the reported magnitude of the loss of $1.2 million worth of gold and diamonds, some jewelry was most likely stolen in the aftermath of the fire. But the appellate judges concluded that videotaping wouldn’t have deterred that loss either, since the surveillance cameras were stopped by a power outage caused by the fire.

Justice Barbara R. Kapnick ruled that the substantive law of New York should govern a dispute over insurance coverage for asbestos claims. That did not please the plaintiffs in the case, the Foster Wheeler Corp. and its liability insurers, who are seeking coverage under excess liability insurance policies for a portion of the massive costs they have incurred while defending and paying asbestos-related personal injury claims that have piled up since the 1970s. They insisted that the litigation should be sent to New Jersey, where the laws aren’t as friendly to excess insurers. The appellate department agreed. In Certain Underwriters at Lloyd's, London v Foster Wheeler Corp. (September 28), the appellate panel explained that New Jersey law applies because Foster Wheeler’s principal place of business was in  New Jersey when the policies in question were issued, and New Jersey’s governmental interest in regulating conduct within the state’s borders weighs in favor of applying the law of the policyholder’s domicile despite the fact that the policies were procured by insurance brokers in New York.

BRONX COUNTY

That Carlos Huertas was standing in the entryway to a garage when police arrived on the scene, and was aware the marijuana was growing in two rooms in the back, was enough to convince a jury, and Justice Peter J. Benitez, that Huertas was guilty of cultivating marijuana. However, the appellate division reversed the conviction, explaining in People v. Huertas (September 28), that prosecutors failed to establish that the defendant exercised dominion and control over the contraband.

KINGS COUNTY

Justice Mark Partnow thought Gisele Ambroise should be allowed to sue the transit authority for her trip and fall on a slightly raised area of concrete. But the appellate judges, after looking at photographs of the site of the alleged mishap, thought otherwise, concluding in Ambroise v. New York City Transit Authority (Oct. 3) that the defect was too trivial to be actionable.

Justice Leon Ruchelsman was reversed twice on September 26 for dismissing personal injury claims.

The first case was initially filed in 2000 but later properly withdrawn by the plaintiff, pending completion of discovery. When the plaintiff attempted to restore the case to the trial calendar last year, Justice Ruchelsmann denied the request, for no good reason, in the appellate department’s opinion. Andre v. Bonetto Realty Corp.

In the second case, Justice Ruchelsman concluded that Henry Cebularz failed to prove that he suffered a serious injury and dismissed the case. The appellate department looked at the same evidence and reached the opposite conclusion. The medical reports produced by the defendant “tended to support rather than to negate” the plaintiff’s claim that his prior spinal injuries were exacerbated by the automobile accident in question, necessitating back surgery a year after the crash, the appellate panel observed in Cebularz v. Diorio.

Justice Francois Rivera granted Molka Sokolovsky 's motion, made at the close of evidence, for judgment as a matter of law on the issue of liability in an auto accident case and awarded the plaintiff $443,600 in damages. The appellate department ruled in Sokolovsky v. Mucip Inc. (Sept. 26) that Justice Rivera should have allowed the jury to decide whether the plaintiff was partly to blame for the accident, and reversed the judgment, granting a new trial on the issue of damages.

Justice Larry D. Martin affirmed a jury verdict awarding Dominick Laruffa $150,000 in damages. The appellate department concluded in Laruffa v. Yui Ming Lau (Sept. 26) that the judge should have dismissed the complaint because the opinions offered at trial by the plaintiff's medical expert were not based on a recent medical examination. Laruffa, after all, was last seen by the doctor 21 months before trial.

Justice Martin Solomon dismissed Margaret Mishaan’s claim against the city for her alleged trip and fall on a crack in the sidewalk, which struck the judge as trivial. The appellate department looked at photos of the scene and saw that a broken section protruded at least an inch above the rest of the sidewalk. From that it concluded in Mishaan v. Tobias (Sept. 26) that the plaintiff deserves a chance to prove at trial that the city should be held liable for her alleged accident.