As the appellate judges noted in Trataros Construction Inc. v. New York City Housing Authority (November 8), the contract that Trataros signed with the housing authority for repairs at the historic Williamsburg Houses development unambiguously required the company to weld the sills. So Solomon should have summarily dismissed the company’s complaint on that point.

To Solomon’s credit, he ruled correctly on a more important issue in the same lawsuit. He properly allowed Trataros to amend its complaint to add a claim for extra compensation for delays attributable to the housing authority. Even though the contract contained a no-damages-for-delay clause, the appellate judges agreed with Solomon that Trataros offered evidence that the housing authority’s delays were so grossly unreasonable that the clause arguably shouldn’t be enforced.

Though he was upheld on the chief claim in that suit, the Second Appellate Department wasn’t through with Solomon last week. In another matter, the judge had inspected a file from the police department’s Internal Affairs Bureau and decided there was nothing in it that the parties who were seeking information about a police incident needed to see. The appellate division took a look at the material and disagreed, ruling in Evans v. Murphy (November 8) that Solomon should have given the plaintiffs a copy of the three-page report with the names of witnesses blacked out. Contrary to Solomon’s finding, the report in fact “contains information which is material and relevant” to their complaint, the appellate division ruled.
 
OTHER NOTABLE REVERSALS

KINGS COUNTY

LABOR: Justice Laura Jacobson got a bit mixed about which local transit agencies can boss around which transit workers. She dismissed a suit filed by the union local opposing the New York City Transit Authority’s order to its members to participate in track safety training sessions. Before coming to court, Jacobson told the union, they should have pressed their complaint in a grievance proceeding. In fact, the union’s collective bargaining agreement with the Manhattan and Bronx Surface Transportation Operating Authority requires that such disputes first be addressed through a grievance, but the appellate judges informed Jacobson that the New York City Transit Authority is not a party to that particular agreement. Matter of Romaine v. New York City Transit Authority (November 8).

CONTRACT: Steve Becker insisted that he didn’t sign the promissory note that Leo Beitner was trying to enforce. That was enough to convince Justice Wayne Saitta to deny Beitner’s motion for summary judgment. The appellant division, however, noted that Becker had offered nothing more than “a bald assertion of forgery,” which wasn’t nearly enough to call into question the authenticity of the signature. Beitner v. Becker (November 8).

TORT: Justice Lawrence Knipel sliced more than $2 million off the amount awarded by a jury to Boris Vertsberger for his pain and suffering and his wife’s loss of his services after he tripped on an “obstruction protruding from the sidewalk” on 86th Street in Brooklyn and shattered his elbow, leaving him with just over $2.2 million plus reimbursement for medical costs. The appellate department concluded that Knipel hadn’t reduced the award by enough, and cut it by an additional $850,000. Vertsberger v. City of New York (November 8).

TORT: Justice Herbert Kramer allowed Yolene Chery to proceed with a suit against Exotic Realty, the owner of the apartment building in which she fell down the stairs. The appellate division summarily dismissed the suit, noting that the company couldn’t be held accountable for the injuries because Chery hadn’t identified any structural or design defects but instead had blamed the mishap on “transitory maintenance conditions,” including cracks and moisture on the steps. Exotic wasn’t responsible for those issues because the company is an “out of possession owner” that had leased the building to another company, which managed the premises and collected the rent. Chery v. Exotic Realty, Inc. (November 8)

NEW YORK COUNTY

EVIDENCE: Justice Faviola Soto extended her streak of consecutive months with a reversal to six when the appellate division, on November 9, found yet another gaping flaw in one of her rulings. Soto had granted summary judgment to Wen Ying Ji in a suit that she filed against her landlord for allegedly letting Meng Shen into her apartment without authorization. According to the appellate judges, “the sole piece of evidentiary material offered by plaintiff in support of her summary judgment motion was her own affidavit,” and that consisted largely of her own hearsay statements, which wasn’t nearly enough to support Soto’s summary judgment. Wen Ying Ji v. Rockrose Development Corp.

INSURANCE: Justice Bernard J. Fried ruled that since the National Football League’s insurance policy excludes coverage for “employment practices,” the league couldn’t recover the legal costs it incurred in defending against a former college football player’s challenge to the league’s draft eligibility rule. The appellate division, however, concluded that the lawsuit against the league’s policy focused on antitrust issues and that it therefore was not, strictly speaking, a dispute over employment practices. So Fried erred in dismissing the league’s claim for insurance coverage. National Football League v. Vigilant Insurance Co. (November 14)

MEDICAL MALPRACTICE: Justice Sheila Abdus-Salaam ruled that Sybil Schaub’s surviving family members couldn’t sue her doctor for malpractice for events after a date on which her stomach cancer was so advanced that her chance of survival was slim. The appellate division found no basis for putting such a lid on the plaintiffs’ suit. After all, the alleged delay in the doctor’s diagnosis of the cancer after that date might have reduced Schaub’s life expectancy, and that is a sufficient basis for a claim of malpractice. Schaub v. Cooper (November 14)

LEGAL MALPRACTICE: Justice Walter B. Tolub was too quick to dismiss a malpractice suit against divorce attorney Margery A. Greenberg. He ruled that the attorney couldn’t be blamed for the fact that the retirement account that Grace Lappin got from her husband in a divorce declined in value while she was waiting to extract the funds. Investments are inherently risky, Tolub reasoned. The appellate division, however, noted that Lappin agreed to accept the proceeds from the pension plan, not the investments. More to the point, it took Lappin much longer than expected to extract the funds because Greenberg failed to make appropriate inquiries to determine the plan's requirements for distribution of funds, an oversight that left Lappin with a viable claim against the attorney. Lappin v. Greenberg (November 14)

LANDLORD TENANT: The plaintiff, a sophisticated business entity, helped draft the lease and paid rent without complaint for 20 years, yet Justice Debra A. James was willing to let the company go to trial with its belated complaint that it had been overcharged. The appellate division tossed the suit out of court, noting that the company’s complaint about the rent after so many years was precluded by the voluntary payment doctrine. Eighty Eight Bleecker Co., LLC v. 88 Bleecker St. Owners, Inc. (November 9)

LANDLORD TENANT: Justice Diane Lebedeff thought a cooperative corporation should be allowed to recover the legal costs it incurred in a suit that had succeeded in forcing Michael S. Horwitz to remove an awning. The appellate division concluded that the lease gave the cooperative no such right and reversed Lebedeff’s award of fees. While there is a provision allowing for recovery of legal fees if a tenant defaults on the lease, a court order requiring removal of awnings does not equate to a judicial finding of default. Horwitz v. 1025 Fifth Avenue Inc. (November 9)

TORT: Justice Kibbie F. Payne approved the jury’s award of $5,000 to Brian Miller for the pain and suffering he endured as a result of a shoulder injury he sustained in a motorcycle accident, for which he was found to be 75 percent at fault. The appellate division concluded that the award, resulting in a payment to Miller of $1,250, was unreasonably low and vacated the judgment, ordering a new trial on damages unless the defendant agreed to boost the award to $40,000. Miller v. Tacopina (November 9).


BRONX COUNTY

FAMILY: Justice Myrna Martinez-Perez held a father in contempt of court for allegedly letting his daughter visit with her grandmother, and then coaching the girl to lie about it. For his affront, the judge punished the father by ordering him to stay away from his daughter for a full year. The problem is, there was some ambiguity about whether the father had been clearly ordered to keep his daughter away from his apparently troublesome mother, an issue that could have been sorted out in a hearing. But Martinez-Perez held no hearing and didn’t even bother to serve the father with notice of a contempt proceeding, as was required by law under the circumstance. The appellate division sent the case back to Family Court for further proceedings before a different judge. Matter of Roberto M. v. Melanie D-B. (November 14)

INSURANCE: Rashida Johnson insisted that she suffered a serious injury in an auto accident and Justice Stanley Green believed her. The appellate division, however, found that her subjective complaints of back pain were insufficient to prove her case, particularly since she had acknowledged in her deposition that she had not been forced to give up any activities as a result of the accident and there were unexplained gaps in her treatment. Park v. Champagne (November 14).

CONTRACT: Justice Sallie Manzanet correctly discerned that there were so many unresolved questions in a dispute over construction of a warehouse, including whether it was completed on time, that the parties would need to sort out their differences in a full-fledged trial. However, there was one issue that, according to the appellate division, Manzanet could and should have settled on the spot. The plaintiffs asserted that the defendant breached the agreement by failing to construct certain doors, sprinklers and other features that were included in the architectural plans. However, since those details weren’t specifically set forth in the agreement between the parties, Manzanet should have summarily dismissed the plaintiffs’ complaint about those purported deficiencies. Cornhusker Farms, Inc. v. Hunts Point Cooperative Market, Inc. (November 14)

STANDING: Justice Lucy Billings blocked the award of a lease to develop a produce distribution center, on grounds that the losing bidder had raised enough questions about the integrity of the bidding procedures that those complaints warranted a closer look.  The appellate division, however, concluded that the loser had no standing to seek an injunction because its proposal to develop the site diverged in important respects from the request for proposals, and no matter how the bidding process had been handled, it would not have won. Hunts Point Terminal Produce Cooperative Association, Inc. v. New York City Economic Development Corp.  (November 9)

CIVIL PROCEDURE: The appellate division sent Justice Gerald V. Esposito back to the law books for a lesson on the doctrine of collateral estoppel. Neighborhood Partnership Housing Development Fund v. Blakel Construction Corp. (November 14)

QUEENS COUNTY

LABOR: Justice Alan LeVine allowed Rubin Reinoso to directly sue his employer for injuries he sustained at a construction site when he stepped on an improperly-secured floor board and fell from the second floor to the basement. The appellate division dismissed the suit, reminding the judge that injured workers can’t bypass the worker’s compensation system unless they suffer a “grave injury,” and Reinoso offered no evidence that his injuries were that extreme. Reinoso v. Ornstein Layton Management Inc. (November 8).

MED-MAL: Justice Janice Taylor was too willing to let Victor Serby continue to procrastinate in his medical malpractice suit. The defendants had filed a motion seeking dismissal of the languishing case for his failure to move ahead with it, and the law gave him 90 days to reply to that motion, but Serby still didn’t respond nor did he offer a justifiable excuse for the delay. Taylor was willing to keep the suit alive anyway, but the appellate division kicked it out of court. Serby v. Long Island Jewish Medical Center   (November 8).