In one of the recent reversals, Partnow allowed Eduarda Green, a security guard who slipped on stairs that she said were perpetually uncleaned, to proceed with a suit against the city, even though Green admitted that she had never complained about the condition of the staircase. The appellate division concluded in Green v. City of New York that Partnow should have dismissed the claim because there was no evidence that the city had notice of recurring debris. In fact, the evidence suggested that the liquid on which Green slipped and fell had been spilled seconds before her mishap, leaving the defendant no time to clean it up.

In the other recent case, Partnow declined to dismiss Christian Rodgers’s suit against Georgette Miller, the owner of the building located at 753 Union Street, in Brooklyn, for Rodgers’s trip and fall in a hole in the sidewalk in front of 751 Union Street.  The appellate division noted in Rodgers v. City of New York that Miller didn’t create the hole in front of the building next door, nor did she derive any “special use” from that section of sidewalk. So there was no good reason, the appellate judges said, why Partnow kept Miller in the suit (which is evidently still pending against the city).

In the two cases in which he was reversed in October, Partnow refused to dismiss a case against Rite Aid for a pedestrian’s trip and fall on a subway grate. The appellate division noted in LaTorre v. New York City Transit Authority (October 31) that the store had nothing to do with that alleged hazard and threw the complaint against the company out of court.

And he was willing to allow another pedestrian to proceed to trial for stumbling on a bump in a walkway that the appellate division described in Ambroise v. New York City Transit Authority (Oct. 3) as too trivial to be actionable.

OTHER NOTABLE REVERSALS

NEW YORK COUNTY

The Appellate Division, First Department has delivered a message to Manhattan litigants and judges alike: File your suits on time, or forever hold your peace! That edict was handed down on November 16 in three rulings dismissing cases in which three different judges had generously granted plaintiffs more time than the law allows to commence litigation.

EMPLOYMENT: Justice Marcy S. Friedman let Asem Eldaghar file a suit challenging the housing authority’s refusal to reinstate him to his former position, even though the four-month deadline had passed since he received a letter unequivocally informing him that his request for reinstatement had been denied. Friedman reasoned that the four-month limitation period didn’t start to run until the last occasion that his former employer repeated the bad news. But as the appellate division pointed out, the subsequent denials merely referenced the original denial and did not constitute a new determination that would have revived the statute of limitations. Matter of Eldaghar v. New York City Housing Authority (November 16)

TAX: Justice Shirley Werner Kornreich let Constance Booth file suit in 2003 against her accountant, Stanley Kriegel, for mistakes he allegedly made on her tax returns between 1985 and 1998, despite the fact that the statute of limitations for nonmedical malpractice actions is three years. Kornreich reasoned that since Kriegel made the identical mistake on Booth’s returns each year through 2001, he committed one continuance act of malpractice and the limitations period started to run only when the erroneous filings finally ended. The appellate division had a different view of the matter, concluding that each tax return was a separate and discrete transaction, and thus, by 2003, Booth’s chance to sue for the mistakes in the early years had long since passed. Booth v. Kriegel (November 16).

TAX: Justice Richard B. Lowe III ruled that Lawrence Gaslow didn’t realize a complex tax shelter was illegal until the IRS told him so in July of 2001. Therefore, he was well within the three-year statute of limitations period in March 2004 when he filed suit against the accountant who assured him that the shelter was secure. As the appellate division saw it, however, Gaslow had every reason to suspect that the tax shelter was illegal as early as January 2001 when his accountant told him that a strikingly similar tax-avoidance scheme had just run afoul of the IRS. That’s when the statute of limitations clock started to click, the appellate division concluded, and therefore, by the time Gaslow got around to filing his suit, he was too late. Gaslow v. QA Investments LLC (November 16).

Justice Faviola Soto continues to rack up reversals at a steady clip, bagging two more this week. To be sure, one was for a slipup on a secondary issue, and the second was in a factually peculiar case in which Soto won support from a dissenter on the appellate panel. But these two cases, are the 10th and 11th in which she has been overturned, in full or in part, so far this year.

DISCOVERY: In the first case, Soto correctly ruled that an e-mail wasn’t covered by an attorney-client privilege. But she agreed to let a defendant be deposed in Florida despite the fact that, as the appellate division noted, the defendant failed to demonstrate that a deposition in New York would cause him substantial hardship. Kenney, Becker LLP v. Kenney (November 16).

TORT: In the other case, Soto denied a motion to dismiss Mei Cai Chen’s claim that her landlord should have known a loose doorknob might lead to the sort of accident that befell her when it came off in her hand, causing her to tumble backward down the building’s front steps. The majority on the appellate panel threw out the case, concluding that Chen’s injuries were not “within the class of foreseeable hazards” associated with the duty to fix a doorknob that frequently jammed. The dissenter, however, noted that this particular front door was highly unusual in that it opened inward, so visitors habitually tugged on it, assuming that, like most doors, it opened to the outside. The dissenter seconded Soto’s conclusion that Chen deserved a trial to prove that the landlord should have known the loose knob might hurt someone some day, and should have gotten it fixed. Mei Cai Chen v. Everprime 84 Corp. (November 16).

TORT: Justice Robert D. Lippmann’s ruling dismissing Susan Alexander’s suit stemming from her tumble down a stairway leading from the Manhattan Mall to the 34th Street subway station was “devoid of any analysis,” said the appellate division in a decision reinstating Alexander’s lawsuit. A photograph of the broken tile that Alexander blamed for the accident suggests that the hazard was obvious enough that one of the parties she sued should have noticed and fixed it, the appellate judges said. Alexander v. New York City Transit (November 16).

CRIMINAL: Justice William A. Wetzel, following a jury verdict, convicted Jameel Gordon of first-degree assault for hitting a man with his car following a drunken altercation with the victim. The appellate division concluded that Gordon, who insisted he was trying to drive around the victim, didn’t exhibit depraved indifference necessary to support the more serious charge, so Wetzel should have convicted Gordon of third-degree reckless assault. People v. Gordon (November 16).

CRIMINAL: Justice Ronald A. Zweibel held Wayman Esquilin accountable for stealing more money from a bank than he actually got away with. Esquilin had a habit of making “empty-envelope deposits” at ATMs and withdrawing cash before the bank could inspect the envelopes. Since the fake deposits exceeded $3,000, the threshold for third-degree grand larceny, Zweibel convicted him of that offense. However, since the audacious culprit actually walked away with less than $2,000, he should have been convicted of a fourth-degree offense, the appellate division said. People v. Esquilin (November 16).

BRONX COUNTY

FAMILY: Bonnie Cohen-Gallet, a Family Court referee, seemed so intent on giving a grandmother seeking visitation rights with the child of her imprisoned son a hard time that the referee failed to gather all of the facts she needed to make an appropriate decision. So said the appellate division. In a hearing, Cohen-Gallet “refused to let [the grandmother] speak, talked over her, and reprimanded her for trying to present her position.” The referee ultimately agreed to let the grandmother see her granddaughter — for two hours, once every three months, and only in a public place. Citing Cohen-Gallet’s “egregious” failure to respect the grandmother’s right to be heard, the appellate division vacated the visitation order and sent the case back for further proceedings — before a different referee. Beverly B. v. Rossannh B. (November 16)

WORKERS COMPENSATION: Justice Douglas E. McKeon dismissed culinary student Leola Terry’s personal-injury suit against the pastry shop where she slipped and fell, reasoning that her exclusive remedy was a workers compensation claim. The appellate division agreed that even though Terry was an unpaid extern, she ordinarily would have been covered by worker’s compensation. But in this instance, since neither her school nor the pastry shop had secured workers' compensation coverage for Terry, the lawsuit was an appropriate recourse. Terry v. Maurice Pastries, Inc. (November 16).

QUEENS COUNTY

TORT: Justice Phyllis Orlikoff-Flug ruled that since garbage bags are a “transitory condition,” the city can be held liable for injuries they cause, even if the city wasn’t given written notice of the danger they posed at least 15 days earlier, as required for fixed hazards. That ruling meant Min Whan Ock could proceed with a suit for injuries he sustained when he tripped over several garbage bags that obstructed a pedestrian overpass. The appellate division, however, put a halt to the suit. Although the city may be held liable, even in the absence of prior written notice, if it created the hazard, Ock offered no evidence that the city was responsible for the garbage bags that tripped him up, so the city wasn’t liable for his injuries. Min Whan Ock v. City of New York (November 14)

TORT: Lorraine Munter and Mary Hubert each insisted that the other ran a red light, causing their cars to crash. Justice Duane Hart sided with Munter and granted summary judgment on liability in her favor. The appellate division, citing the many discrepancies in the conflicting accounts, concluded that there was no basis for summarily resolving the dispute, overturned Hart’s ruling, and sent the case to trial. Munter v. Hubert (November 14)

TORT: Justice Joseph Dorsa should have given Felipe Robles more time to serve Luisa Corona with his personal injury suit, said the appellate division. The suit had merit, Robles had initially served it on time, learning only later that service was defective, and Corona wasn’t prejudiced by the late service of process because she knew Robles intended to file the suit. Robles v. Mirzakhmedov (November 14)

MEDICAL MALPRACTICE: Justice CharlesThomas correctly approved the jury’s award of damages to Sofia Herrera, who had a malignant tumor in her back that went undiagnosed for a year and eventually left her paralyzed. However, the $4 million pain-and-suffering award approved by Thomas was unreasonably high, said the appellate division, cutting it by $1 million. Herrera v. Martin (November 14)

NO-FAULT INSURANCE LAW: Justice Martin Schulman thought Antonio Caracci made a case that he had suffered a “serious injury,” but the appellate division disagreed. Caracci failed to account for a 16-month gap in his treatment, and his doctor’s report was unconvincing, since it “failed to compare his findings as to the range of motion of the plaintiff's right knee to what is considered normal range of motion,” the appellate judges said. Caracci v. Miller (November 14)

CRIMINAL: Justice Arthur Cooperman imposed consecutive sentences of one-to-three years in prison for each of the four counts for selling drugs on which Jose Jaquez was convicted. The resulting prison term was excessive, according to the appellate division, which cut the sentence in half. People v. Jaquez (November 14)

KINGS COUNTY

NO-FAULT INSURANCE LAW: Justice Yvonne Lewis let one plaintiff bypass the no-fault law and proceed with a damage suit for allegedly serious injuries. She dismissed another serious-injury case. Lewis got it wrong in both cases, according to the appellate division, handing Lewis two reversals in one day.

Justice Lewis agreed to let Bella Cohen go to trial on the strength of a report from her radiologist. Trouble is, that report was not affirmed, said the appellate division. Therefore, it did not outweigh reports presented by the defense from three other doctors, who offered objective evidence that there was nothing wrong with Cohen’s back or neck. Cohen v. A One Products Inc.

In the second case, Lewis dismissed Yury Spektor’s personal injury suit. Lewis was persuaded by a report from the defendant’s medical expert, who tallied the number of degrees that Spektor could bend his torso and concluded that his range of motion was “excellent.” In the appellate division’s opinion, however, that report fell short of disproving Spektor’s serious-injury claim because it didn’t explain how Spektor’s results compared with what is considered a normal range of motion. The appellate division reinstated Spektor’s serious-injury suit. Spektor v. Dichy (November 14)

NO-FAULT INSURANCE LAW: Justice Michael Ambrosio erred in dismissing Delphine Lameni’s serious-injury claim against Verizon. Lameni presented evidence that she sustained serious injury, as defined in the Insurance Law, and the defendant failed to refute it, the appellate division said. Lameni v. Verizon (November 14)

TORT: Justice Martin Schneier slapped the Empire Roller Skating Rink with a sanction that the rink didn’t deserve for failing to hang on to the pair of roller skates that allegedly caused Benton Kelley’s accident. Since the rink “spoiled” the crucial evidence, its attorneys would be barred from making any claims about the skates at trial, Schneier declared. That sanction wasn’t warranted because Kelley hadn’t complained about the skates at the time of the accident, so the rink had no reason to set them aside, the appellate division said. Kelley v. Empire Roller Skating Rink, Inc. (November 14)

PRODUCT LIABILITY: In a suit filed by a shopper who was burned by Russian vinegar after he knocked a bottle of the potent liquid off a grocery store shelf, Justice Diana Johnson let the product’s distributor off the hook. The appellate division, however, concluded that the distributor shouldn’t have been summarily absolved of liability because the label, which warned that the product is “life threatening if used undiluted,” was written in Russian and therefore was arguably inadequate. Nagel v. Brothers International Food, Inc. (November 14)

LABOR LAW: Justice David Vaughan allowed Baltazar Duarte to proceed with a claim against the city for injuries he sustained while working on the Kosciuszko Bridge. The appellate division, however, pointed out that the city merely issued a work permit while the state Department of Transportation was in charge of the project. Vaughan should have dismissed the claim against the city, the appellate judges said. Duarte v. City of New York (November 14)

CIVIL PROCEDURE: Justice Allen Hurkin-Torres gave Monet Dunham a chance to explain why her case, which had fallen off the trial calendar, should be restored. However, Hurkin-Torres didn’t buy the dilatory plaintiff’s explanation and dismissed the case. A more forgiving appellate panel concluded that since Durham had a reasonable excuse for the delay and a meritorious case, Hurkin-Torres should have let her back onto the calendar. Dunham v. City of New York (November 14)

RICHMOND COUNTY

TORT: Justice Christoper Mega approved a decision by Joint Hearing Officer Vincent Pizzuto that cut Vincent Bruzzese too much slack for failing to file his suit against the city on time. Bruzzese told the hearing officer that he mistakenly assumed his workers' compensation attorney would automatically file the parallel personal injury case against the city. That excuse didn’t persuade the appellate division, which overturned Mega’s ruling allowing Bruzzese to file a late claim. Matter of Bruzzese v. City of New York (November 14)

TORT: Justice Anthony Giacobbe should have dismissed Gina-Marie Reitano’s claims against Linda Nilsen for intentional infliction of emotional distress, the appellate division ruled. Reitano v. Nilsen (November 14)