The deliberating jurors sent the judge a note asking whether Harrison could be charged with attempted robbery even if he honestly believed he was the owner of a backpack he tried to take from Siiri Marvits by sawing through its straps with a knife. Zweibel sent a one-word response: “yes.” As the appellate department pointed out in People v. Harrison (October 17), not long after the trial, the Court of Appeals handed down a ruling establishing that Zweibel should have given jurors a longer winded answer, explaining that they were free to consider whether a good faith claim of right to the property negated the element of intent to rob. Harrison most likely would have been convicted anyway. The backpack contained Marvits’s passport, suggesting that his claim that the 66-year-old woman had swiped the bag from him was a ploy. But the appellate judges were “compelled to reverse because the court's answer to the jury question left the erroneous impression that defendant's belief as to the true ownership rights of the backpack was irrelevant.”

 
Likewise, New York County Justice Edwin Torres can deflect at least part of the blame for reversible errors in a trial in his court in which Pavan Ortiz was convicted of murder. The prosecutor’s egregious misconduct scuttled the case.

The assistant district attorney, who was unnamed in the appellate opinion, insinuated throughout the trial that the prosecution’s witnesses were exceptionally credible because they were a police officer and a former prosecutor who had since become a family court judge. Among other prejudicial antics, he repeatedly asked the defendant during cross-examination why such sterling characters would lie. It is not clear from the appellate opinion, People v. Ortiz (October 17), what, if anything, Torres did to rein in the rambunctious prosecutor. But the appellate department rapped the judge for compounding the prejudicial impact of the prosecutor’s misconduct by failing to specifically instruct the jury about assessing the credibility of a judge's testimony, arguably leaving them with the impression that they had to accept his account of events.

OTHER NOTABLE REVERSALS

NEW YORK COUNTY

Ellen Bender blamed Allan Gross for running over her with his car after she lost control of the motorcycle she was riding, crossed a double yellow line into oncoming traffic, and ended up in his lane. Justice Milton A. Tingling agreed that Gross could be sued for negligence. The appellate department, however, dismissed the complaint against Gross, explaining in Bender v. Gross (October 12) that the defendant had “a matter of seconds” to react and can’t be faulted for his futile attempt to swerve around the careening motorcyclist.

Justice Judith J. Gische ruled that an art gallery must tell Norman Alexander who purchased a sculpture that was allegedly stolen from his home, but Alexander couldn’t publicly divulge the name. The appellate department concluded that there was no justification for the restriction on public disclosure of the purchaser's identity. In Matter of Alexander v. Spanierman Gallery, LLC (October 12), the appellate judges noted that the purchase took place at a public sale and was publicly reported, and that the purchaser will, in any event, be publicly named in Alexander's prospective suit to recover the stolen work of art.

Family Court Justice Rhoda Cohen affirmed a magistrate’s order requiring an attorney to make monthly payments of $3,706.67 for child support and $1,560 for full-time child care to the plaintiff, a legal marketing consultant with whom he had a brief relationship. The support award was much too high, said the appellate department in Gina P. v. Stephen S. (October 12), and it was unfair to make the father pay for full-time child care since the mother only works part time.

Justice Helen E. Freedman granted the plaintiff’s motion to compel disclosure of certain documents. According to the appellate department in U.S. Bank National Association v. APP International Finance Co. (October 17), those documents were exempt from disclosure because they were covered by an attorney-client privilege.

Justice Barbara R. Kapnick dismissed a wrongful termination cause of action against Shawn Coyne, the co-manager of a publishing company that fired Jeanine Pepler from her job as director of publicity after surgery for thyroid cancer left her with a raspy voice. Kapnick concluded that there was no evidence that Coyne participated in Pepler's termination or any act of discrimination against her. The appellate department, however, in Pepler v. Coyne (October 17), noted that Coyne was an owner of the company and had the power to make personnel decisions, and therefore, he could be liable if he merely condoned a discriminatory termination of an employee.

BRONX COUNTY

Justice Nelson S. Roman dismissed the lawsuit filed against a retreat center by Teresa Jimenez, who fell from a top bunk as she tried to climb down without a ladder. The appellate department, in Jimenez v. Hispanic Catholic Charismatic Center of the Archdiocese of New York (October 12), reinstated the complaint. Jimenez raised legitimate questions about whether the center breached its duty to maintain the sleeping quarters in a reasonably safe condition by failing to provide ladders for each of the upper bunks in the room. As the appellate judges saw it, those questions could only be answered in a full-fledged trial.

Justice Alison Y. Tuitt vacated an award of $164,580 for future pain and suffering for Patino Obdulio, who was injured in a motorcycle accident but ceased seeking medical care for his injuries several months later. The appellate department noted that even though Obdulio was not permanently disabled, he was seriously injured and therefore should be eligible for damages for future pain and suffering. However, the appellate judges concluded that the sum of money awarded by Tuitt was unreasonably high. In Obdulio v. Fabian (October 12), they offered the plaintiff $25,000 instead, which he was free to take or decline if he preferred to start from scratch with a new trial.

KINGS COUNTY

Justice Laura Jacobson was off by more than two years in her calculation of when interest that the defendant owed to the plaintiff began accruing. As the appellate department explained in Atlas Refrigeration-Air Conditioning, Inc. v. Lo Pinto (October 10), Jacobson should have awarded prejudgment interest from the date of the plaintiff's demand for payment, which was “the earliest ascertainable date the cause of action existed.” That occurred in 1999, not 1997.

Justice Sylvia Hinds-Radix refused to dismiss a personal injury case against the Brooklyn Union Gas Co. But the appellate judges concluded that the company proved there was no chance that it had created the allegedly dangerous condition that caused Evangeline Maria Boone to trip and fall. In Boone v. City of New York (October 10), they dismissed the complaint.

Two synagogues were sued by Esther Lemberger in a personal injury case. They lost by default after failing to respond to the complaint or appear for court hearing. Justice Donald Kurtz came to the rescue, agreeing to vacate the default judgment and allow a late answer, after accepting the synogogues’ excuse: our insurers fumbled the summons. They might as well have told the appellate department that their dog ate the document. The appellate judges weren’t buying the plea for a break. “A general excuse that the default was caused by delays occasioned by the defendants' insurance carrier is insufficient,” the appellate judges explained in Lemberger v. Congregation Yetev Lev D'Satmar, Inc. (October 10), reinstating the default judgment.

Justice Michael Garson refused to dismiss a labor law claim for damages filed by construction worker Baher Uddin for injuries he sustained when he fell from a scaffold while renovating a building owned by Corner Stone Baptist Church. The appellate department, however, noted that the building in question was a single-family home used solely as a residence for the church’s pastor and his wife and therefore was entitled to the homeowner's exemption. In Uddin v. Three Brothers Construction Corp. (October 10), the court dismissed the suit.

QUEENS COUNTY

Justice Arnold Price dismissed a complaint filed by Anthony D'Alba, concluding that he did not sustain a serious injury in an auto accident. The appellate department agreed that the evidence of injuries caused by that particular accident wasn’t very persuasive. D’Alba’s doctor apparently wasn’t even aware that he was involved in another accident two months later in which he suffered similar injuries. But the appellate department found that D’Alba had another claim that Price should not have summarily dismissed. Immediately after the accident, D’Alba was attacked by the other driver, and in D'Alba v. Yong-Ae Choi (October 10, the appellate judges concluded that he should have been allowed to proceed with a suit for to recover damages for assault and battery.