In the earlier case, People v. Lomiller, handed down in June, a unanimous four-judge appellate panel overturned Yates’s ruling that a ladies purse had been illegally seized by the police. The veteran officers attempted to explain to Yates that they thought it was odd that Stephen Lomiller was holding the handbag. When his attempt to explain himself made no sense, they thought they were fully justified in searching, and their suspicions were confirmed when they found it contained someone else’s credit cards.

Yates, however, concluded that Lomiller’s “simple possession of a purse” wasn’t enough to give the police a legitimate reason to question him because he was “unquestionably . . . of transgender appearance and display.” That pronouncement was rejected by the incredulous appellate judges, who noted that when he was spotted by the officers, Lomiller was wearing a jacket and blue jeans and had “what seems to be two to three days’ growth of beard.”

The more recent case in which Yates’s sentencing decision was overturned was a much closer call. After the defendant was convicted, his trial attorney was replaced by substitute counsel amidst claims that Susankar had been ineffectively defended. The substitute counsel waited until the sentencing hearing was underway to ask Yates for a one-day adjournment so that the trial attorney could appear on Susankar’s behalf. Yates refused the request, proceeded with the hearing, and sentenced the defendant to 26 years to life in prison for second-degree murder.

Three of the five judges on the appellate panel declared in People v. Susankar, handed down on November 2, that the “requested single-day delay was unquestionably minimal and the court lacked reasonable grounds to deny it.”  The majority remanded the case for resentencing.

In a dissenting opinion, however, two appellate judges came to Yates’s defense, in effect praising the judge for refusing to be conned by a wily attorney and suggesting their colleagues had been hoodwinked. “Even if counsel was not seeking to obtain an unwarranted advantage by waiting until after the prosecutor had concluded [to ask for an adjournment], counsel was wasting the court's time,” the dissenters noted. In explaining his refusal to grant yet another adjournment, Yates had quite plausibly explained that sentencing had already been delayed for six months. Yates had told the attorney that the hearing would take place that day, and yet the attorney had done nothing to prepare for it.

“The majority does not take issue with anything stated by [Yates] in this regard, yet nonetheless concludes that the record does not ‘bespeak gamesmanship’,” the dissenters noted. “In sum, the majority does an injustice to [Yates] with its assertion that [he] ‘lacked reasonable grounds to deny’ the ostensible request for a one-day delay.”


OTHER NOTABLE REVERSALS

NEW YORK COUNTY

FORFEITURE: The city’s administrative court ruled that Delores Harris shouldn’t lose the car she co-owned just because the owner of the other half, her husband Merv, was caught driving it during a drug deal. Justice Martin Shulman agreed, denying the city’s petition to annul the administrative ruling. The appellate division was unmoved by the wife’s predicament. In Property Clerk of the Police Department of the City of New York v. Harris (November 2), the appellate judges ruled that the city made the requisite showings that Merv was using the car to commit a crime and therefore, the city was entitled to keep it while forfeiture proceedings were pending, regardless of Delores’s innocence.

TRUSTS AND ESTATES: Surrogate’s Court Justice Renee R. Roth ruled that three children of Maria Luisa de Heredia Ryan who were disinherited by their mother should get a chance to challenge the will on grounds that she was unduly influenced by a brother who got a slice of the estate. The appellate division disagreed. Their mother had repeatedly warned the wayward trio — in a series of letters displaying no sign of mental slippage — that if they aired the family’s dirty laundry in a suit against their brother, she would cut them out of her will. They persisted with their suit anyway, and according to the appellate division in Maisannes v. Ryan  (November 2), have no grounds to complain now that their mother kept her word.

NUISANCE: Four months before the city obtained an injunction against Mouman Outlet Inc. and its vendors ordering them to stop selling counterfeit merchandise, the city had removed bogus goods from the site, leading Justice Jane Solomon to conclude that the city had nothing left to complain about. She vacated the injunction. Not so fast, said the appellate division in City of New York v. Ring (November 2). The city has an ongoing right to ensure that the vendors do not resume their illegal activities, so the injunction wasn’t moot.

LANDLORD TENANT: Justice Marylin Diamond found the owner of a condominium building on East 86th Street responsible for deficient fireproofing in the building’s common area, even though that area was owned by the condominium association. Diamond should have dismissed the complaint, said the appellate division in Independence Community Bank v. East 86th St., LLC (November 2), because nothing in the lease or in the law shifted responsibility for curing code violations in the association’s sections of the building to the owner.

TORT: Justice Richard F. Braun correctly approved the jury’s conclusion that Robin Hairston was 50 percent at fault for her fall from a step ladder, but the appellate division doubled the damage award. The $150,000 for pain and suffering that Braun gave her was inadequate considering that Hairston was hospitalized for eight days and had spinal fusion surgery two years later, the appellate division concluded in Hairston v. Metro-North Commuter R. R. (November 2).

FAMILY: Six-year-old Tristram had lived with his paternal aunt and uncle part of the time since his father died in 2002, so Family Court Justice Sara P. Schechter thought it made sense that they should be allowed to intervene in a child protective proceeding against the child’s mother Jing. Trouble is, Jing wanted them to butt out. The appellate division concluded in Matter of Tristram K. v. Jing K. (November 2) that the unambiguous language of the Family Court Act gives a parent who appears for a protective proceeding the right to disqualify would-be intervenors, so Schechter “erred in permitting intervention by the child's paternal relatives.”

QUEENS COUNTY

TORT: Following a 10-car chain reaction collision, Wladyslaw Olechowski and Tak Chan proved that they were able to safely bring their cars to a stop before a vehicle in back driven by Zbigniew Sliwowski plowed into the pileup, propelling them into the car ahead. Sliwowski confirmed Olechowski’s and Chan’s account yet Justice Duane Hart declined to dismiss them as defendants. The appellate division, in Abrahamian v. Tak Chan (October 31), was compelled to correct Hart’s ruling -- for the fourth time in just over two months. (See The Reversal Report for 10-06-06 and 09-22-06.)

BRONX COUNTY

TORT: Justice Sallie Manzanet concluded that Mark Hayes could take the Skyline Cruise Line to trial because an assailant who had brawled with other passengers during a midnight cruise, attracting the attention of the ship’s bouncers, popped him in the jaw as he stood on the Chelsea Piers 30 feet from the boat 10 minutes after he disembarked. The appellate division concluded in Hayes v. City of New York (November 2) that Manzanet should have dismissed the suit against the cruise line because its duty of care to Hayes ended when he safely got off the boat.

KINGS COUNTY

TORT: Since Rite Aid had nothing to do with a subway grate outside its store on 4th Avenue in Brooklyn, Justice Mark Partnow should have dismissed the company from the suit filed by Anthony P. LaTorre for his trip and fall on the alleged hazard. LaTorre v. New York City Transit Authority (October 31).

FAMILY: Justice Paul Grosvenor granted a father's petition for visitation with his children without informing the mother that she had a right to seek legal advice and that an attorney could be assigned to assist her if she couldn’t afford to hire one. It might be true that she did not complain, but “nothing in the record shows that the mother knew of her rights,” said the appellate division in Matter of Samuel v. Samuel (October 31). The court concluded that Grosvenor’s “failure to advise the mother of her rights under the statute requires reversal.”

CRIMINAL: The lawyer defending Roland Alford in a rape case tried before Justice Alan Marrus let prosecutors get away with entering into evidence a laboratory report that indicated Alford had previously been convicted of a similar offense. No independent basis existed for admitting that highly prejudicial evidence of the prior crime, and Marrus’s “attempts to remedy the situation with a curative instruction were insufficient to obviate the prejudice to the defendant,” said the appellate division in People v. Alford (October 31). The appellate court reversed the conviction and ordered a new trial.

SEX OFFENDERS: Justice James Sullivan ruled that Burchell Black is a level-three sex offender, based on the prosecutor’s recommendation to that effect. Sullivan was supposed to get an assessment from the Board of Examiners of Sex Offenders, which in turn would have notified Black, giving him an opportunity to speak up. That Black didn’t object to the way Sullivan handled the proceeding didn’t mean he waived his rights, since there was no indication that he knew what rights he was giving up, said the appellate division in People v. Black (October 31).

ATTORNEY FEES: Justice Ira Harkavy approved the plaintiff’s request for $143,392.25 in attorney’s fees based solely on the plaintiff’s “wholly inadequate” one-page tally, which revealed nothing more than which firms received how much. SO/Bluestar, LLC v. Canarsie Hotel Corp. (October 31). Harkavy “should have made an inquiry into the reasonableness of the attorneys' fees awarded,” said the appellate judges, reversing the judgment and remitting the case for that purpose.

TORT DAMAGES: The appellate division trimmed $200,000 from the $700,000 sum that Justice Martin Schneier awarded Saquina Crawford for the pain and suffering she endured as a result of a pit bull attack. Crawford v. New York City Housing Authority (October 31).

CIVIL PROCEDURE: Justice David Vaughan had no good reason not to let the defendant amend its answer to add an affirmative defense, said the appellate division in Fiumara v. C & S Wholesale Grocers, Inc. (October 31). The proposed amendment wasn’t “palpably insufficient or patently devoid of merit” nor did it unfairly catch the plaintiffs by surprise.