Tolub has been reversed four times since September in mundane contract disputes and twice more in other cases. All six reversals came in cases that were a far cry from some of the lawsuits he has handled over the years that have made big headlines.

In 2003, for instance, Tolub slashed the $11.2 million jury verdict against Leona Helmsley by 95 percent, and granted filmmaker Spike Lee a preliminary injunction against Spike TV. In the same year, he ordered a fellow jurist, Michael Garson, of Brooklyn, to repay $160,000 of his elderly aunt’s money that he had spent while ostensibly serving as her trustee. It was in that case that Garson’s lawyer praised the judge for his integrity and competence, even while lambasting his ruling as “illogical.”

Two years after he was elected to the Supreme Court in 1992, Tolub made waves with a ruling invalidating a city policy giving preferential treatment to women and minority bidders for municipal contracts. That was seen as a gutsy decision by a long-time member of the Liberal Party.

His membership in that party has been a rare source of minor controversy in his career as a judge. Democratic Party kingpins have occasionally accused Tolub and other Liberal Party operatives of invading their turf in nominating candidates for judicial posts. But as an article in The New York Times about the inter-party bickering put it, by all accounts, Tolub has “served without a blemish.”

The recent flurry of six reversals by the Appellate Division arguably qualifies as at least a tiny stain on his career. As reported in this column Tolub was reversed twice on September 26, in both cases for what the appellate judges characterized as misinterpretations of contracts. He was reversed again on Nov. 14 for too hastily dismissing a legal malpractice case. Tolub has been reversed three more times so far in December, including twice in contract cases.

In one case, Tolub ordered Luigi Forino to make good on a guarantee and cover a defaulting tenant’s rent, even though the “plain wording” of the agreement provided that Forino was not supposed to be a guarantor of the tenant's obligations under the lease. Thirty-One Co. v. Forino (December 12)

In another case, Tolub agreed with Eastern Shipping that a lawsuit over a lease should be tried in New Jersey. Tolub disregarded the “unambiguous” forum selection clause in the parties’ lease agreement, which, according to the Appellate Division, “clearly provides” that any legal action pertaining to the lease must be filed in New York courts. Sterling National Bank v. Eastern Shipping Worldwide, Inc.  (December 12)

Tolub was reversed in a third case on December 7 for failing to properly resolve a complaint brought by homeowner Eileen Robert for a three-inch encroachment onto her property by a pediment on the house next door at 47 Charles Street. Tolub offered Robert $500, since that was the estimated cost of cutting the impediment back. The judge should have ordered the neighbor to fix the problem, the Appellate Division said. Robert v. Kohs 
 
OTHER NOTABLE REVERSALS

NEW YORK COUNTY

EMPLOYMENT, ARBITRATION: Justice William A. Wetzel should have been more sympathetic to the plight of a deckhand on the Staten Island ferry, who supposedly couldn’t urinate for more than two hours when asked to produce a sample for a drug test. So said the Appellate Division. Though an arbitrator had reinstated the deckhand to his job, Wetzel vacated the arbitrator’s decision and terminated the employee, invoking the “zero tolerance” drug policy implemented after a pilot who was hopped up on prescription drugs crashed the ferry in 2003, killing 11. According to the Appellate Division, Wetzel overstepped his authority in second-guessing an arbitration decision that was neither irrational nor a violation of public policy. The arbitrator cited the mitigating circumstance that the employer failed to produce a key witness, hampering the employee’s ability to challenge the reliability of the testing procedure. Matter of Local 333, United Marine Division, International Longshoreman's Association, AFL-CIO v. New York City Department of Transportation (December 12)

INSURANCE: Justice Edward H. Lehner applied an overly expansive interpretation to a “business interruption” insurance policy held by the owner of a building three blocks from the World Trade Center when it was attacked. Lehner ruled that the policyholder was entitled to coverage for business losses that continued even after the building was reopened amidst the wreckage of lower Manhattan. Not so, said the Appellate Division, which ruled that coverage under such a policy kicks in only when business operations are completely shut down. The policyholder in this case can recover for business losses only from September 11 until September 18, 2001, when tenants were allowed back into the building. Broad St., LLC v. Gulf Insurance Co. (December 12)

EVIDENCE: Justice Shirley Werner Kornreich ruled that jurors in the forthcoming trial stemming from the explosion of a stove should be instructed that they were free to accept the tenant’s claims about the allegedly faulty appliance because the landlord had willfully discarded it several days after the accident. The Appellate Division, however, wasn’t so sure  the landlord knew that the tenants were claiming  the stove was defective, in which case the tenants wouldn’t be entitled to a “spoilation of evidence” charge. Thus, the tenants will have to wait until the facts are out before asking the judge to give the jury such an instruction. Rodriguez v. 551 Realty LLC (December 12)

MEDICAL MALPRACTICE: Justice Sheila Abdus-Salaam thought Joetta Huffman had a viable claim for malpractice against Dr. Leonard Linkow, a dentist who proceeded to attach a permanent bridge to dental implants that had not yet firmly set in Huffman’s jawbone. One judge on the appellate panel agreed. But four others voted to reverse Abdus-Salaam’s ruling and dismiss the complaint on grounds that Linkow owed no duty to Huffman regarding the treatment provided by the dentist who was responsible for the implants. Huffman v. Linkow Inst. for Advanced Implantology, Reconstructive & Aesthetic Maxillo-Facial Surgery (December 12)

FAMILY: Justice Laura E. Drager made several errors in her calculation of Robert Coull’s income for 2003 and 2004, including a failure to properly credit him for funds he paid into court pending his appeal from a prior order. The Appellate Division punched in the correct numbers and reduced Coull’s monthly child support obligation. Coull v. Rottman (December 7)

BRONX COUNTY

MEDICAL MALPRACTICE: As Justice Kenneth L. Thompson saw it, Orlando Santiago was fully informed about the risks he faced when he allowed Dr. Mark Filstein to divide the suspensory ligament in his penis and follow that up with the “Grip System” in an effort to make the unfortunate organ longer. Despite ensuing, gruesome complications, Thompson dismissed Santiago’s medical malpractice suit. The Appellate Division was considerably less impressed with the doctor’s conduct and reinstated the complaint. Filstein, who opted for an especially risky, invasive penile augumentation procedure, downplayed the risks of sexual dysfunction, the appellate judges determined. And he didn’t even mention the possibility of internal scarring, which afflicted Santiago and left him with a shorter penis than he had before Filstein went to work on it. Santiago v. Filstein (December 7)

TORT: Justice Mark Friedlander should have dismissed a suit filed by the family of Patrick Baumgardner, a child scalded by an unexpected blast of hot water, because their landlord, Domenica Rizzo, hadn’t been notified of any problem, said the Appellate Division. Friedlander might have been led astray by a notation on a repairman’s work order indicating that Rizzo had complained 11 days earlier about “poor hot water.” But that pertained to the building’s steam heating system, not the water delivered to faucets, the appellate judges noted. Baumgardner v. Rizzo (December 12)

LABOR LAW: Justice Alan J. Saks thought Benjamin Allen should have to prove at trial that his employer, the transit authority, was to blame for the injuries he sustained when a railing broke while he descended from a platform after unhooking his safety harness, causing him to fall a short distance to the ground. But the Appellate Division concluded that rules required Allen to attach his harness to the structure only after reaching working height. Since he did not violate those instructions when he unhooked the tether to climb down, he was not at fault and was entitled to summary judgment on liability. Allen v. New York City Transit Authority (December 12). Since Allen asserted that the accident more than five years earlier had diminished his earning capacity, Justice Paul Victor, in a separate proceeding in the same case, should have granted his employer's request that he be ordered to submit to a vocational rehabilitation examination. Allen v. New York City Transit Authority (December 12)

DISCOVERY: Justice Dianne T. Renwick properly let a mother and child put their case back on the calendar. But since they hadn’t yet complied with discovery orders, she should have compelled them to turn over documents including x-ray and MRI films within 30 days. Fernandez v. Bridges (December 12)


KINGS COUNTY

TORT: Justice Francois Rivera concluded that since Janna Kotsioubenko’s harebrained u-turn across a double yellow line triggered an accident between two other cars, she shouldn’t be allowed to walk away from the ensuing lawsuit. The Appellate Division thought otherwise. After all, her car wasn’t hit. And Chaudhry Ali, who was suing her, was a passenger in a car that had come to a safe stop before it was struck by a third vehicle. Thus, even though Kotsioubenko may well have been negligent, her risky maneuver was not a proximate cause of Ali’s injuries, the appellate judges reasoned, dismissing her from the suit. Ali v. Daily Pita Bakeries, Inc. (December 5)

TORT: Justice Howard Ruditzky went too easy on a family of procrastinators. He allowed the brother of the long-deceased original plaintiff, who had sued for personal injuries sustained in a 1987 workplace accident, to put the case back on the calendar. Instead, he should have dismissed it, said the Appellate Division. The attorney for the plaintiff blamed “lack of cooperation” on the part of the decedent's family for the long delay in getting the case back on track. That “evinced a lack of interest in this 16-year-old action,” which was all the reason that Ruditzky should have needed to dismiss the complaint for failure to prosecute, the appellate judges said. Bauer v. Mars Associates & Normel Construction Corp. (December 5)

CIVIL PROCEDURE: Justice Michael Garson granted a default judgment against Samuel Fleischman, who failed to appear in the case. Garson had second thoughts five months later and vacated his prior order. The judge got it right the first time, the Appellate Division said. Fleischman not only had no excuse for his failure to oppose the motion for a default judgment, he also had no reasonable explanation for waiting five months to challenge the order granting the default judgment. Garson should not have tolerated Fleischman’s “pattern of willful neglect,” the appellate judges said. Bekker v. Fleischman (December 5)

CIVIL PROCEDURE: Justice Mark Partnow has picked up seven reversals since the start of October for either dismissing cases that should have been allowed to proceed to trial or declining to dismiss cases that should have been kicked out of court. He has picked up yet another reversal, but this time, one with a different twist. Partnow erred in refusing to stay proceedings in a civil action pending completion of a related criminal prosecution, the Appellate Department said. Cornier v. Massanova (December 5)

DISCOVERY: Justice Joseph Silverman erred in denying Michaela Mayer’s motion to compel the building superintendent to answer questions about a prior sexual assault at 231 Ocean Avenue. The circumstances surrounding that incident might be relevant to the foreseeability of the sexual assault on Mayer in the same building, the Appellate Division said. Mayer v. 486 Associates Inc. (December 5)

CRIMINAL: Derrick Henriques had already served six years in prison when his conviction for shooting his girlfriend was overturned. On retrial, he was convicted of criminally negligent homicide, a class E felony for which an offender can be sentenced for a maximum prison term of four years. Justice Carolyn Demarest slapped an additional sentence of five year’s probation on Henriques anyway. Demarest needs to bone up on the Double Jeopardy clause, said the Appellate Division. Since Hernriques had already served more than the maximum sentence that the law allows for his crime, he can’t be given more time for the same offense, even if it is, as Demarest insisted, for his own good. The judge should have let Henriques off on time already served, the Appellate Division said. People v. Henriques (December 5)

CRIMINAL: The prosecutor who tried Anton Liverpool for robbery made so many prejudicial errors, including vouching for the main witness and suggesting that the grand jury indictment constituted evidence of Liverpool's guilt, that Justice James Sullivan should have declared a mistrial. But he didn’t, so the Appellate Division did the deed for the trial judge, reversing Liverpool’s conviction. People v. Liverpool (December 5)

DISCOVERY: Justice Gerard Rosenberg was adhering to a long-accepted standard practice when he allowed the hospital’s lawyers to seek private interviews with the doctors who treated Tanya Webb, a patient who is now suing for malpractice. The Appellate Division, however, has now changed the rule, explaining why in a Richmond County case issued on the same day as this reversal (see below). From now on, if defense attorneys want to talk to the plaintiff’s doctors, they must follow standard procedures for conducting additional pretrial discovery. Webb v. New York Methodist Hospital (December 5)

LABOR LAW: Sylvester Davis, who owned the building where Musa Haider partially severed his thumb while sawing floorboards, occasionally told the contractor to hurry up. But Justice Lawrence Knipel erred in concluding that those occasional instructions constituted supervision of the work. Since Davis had no control over the employee’s job performance, Knipel should have dismissed him from Haider’s suit, the Appellate Division said. Haider v. Davis (December 5)

NO FAULT INSURANCE LAW: Justice Herbert Kramer correctly concluded that Iliana Lopez did not suffer permanent loss of use of any part of her body. But Kramer erred in concluding that Lopez didn’t miss enough work after the accident to qualify her injury as serious enough to escape the no-fault law. The defendant failed to refute the evidence she presented on that point. Kramer therefore should not have summarily dismissed her claim with respect to that category of “serious injury,” the Appellate Division said. Lopez v. Geraldino (December 5)

QUEENS COUNTY

CONTRACT: Justice Peter Kelly gave Fortune Limousine too much leeway in exercising an option to purchase mobile communication equipment from Nextel when an 11-month service contract ended. Under the terms of the contract, Fortune could have purchased the equipment for a dollar if the company had given at least 30 days written notice prior to its expiration. But the company didn’t attempt to exercise the option until five months after the contract expired. That was good enough for Kelly but not for the Appellate Division, which dismissed the causes of action based on an alleged breach of the contract. Fortune Limousine Service Inc. v. Nextel Communications (December 5)

MEDICAL MALPRACTICE: Justice James Dollard punished Diana Lakins Johnson too harshly for her attorney’s failure to make required disclosures about the medical expert she intended to call in her malpractice suit against Dr. Stephen T. Greenberg and Jamaica Hospital Medical Center. The judge barred her from calling the expert and dismissed her complaint. Such a harsh sanction is improper, the Appellate Division said, without evidence of intentional failure to disclose and a showing of prejudice. The doctor claimed he was prejudiced but didn’t explain why. In any event, the defendants have since received all the information they were entitled to get about the plaintiff’s expert, the appellate judges noted in reinstating the complaint. Johnson v. Greenberg (December 5)

TORT: Patricia A. Marshall asserted that she complained to a maintenance supervisor about packets of mayonnaise on a stairway more than four hours before she fell on a slippery substance on the stairs at the same spot. Justice Arnold Price summarily dismissed her complaint. He shouldn’t have done so, according to the Appellate Division, given that the defendants failed to effectively counter Marshall’s assertion that they had a chance to clean up a hazard yet failed to act. Marshall v. Jeffrey Management Corp. (December 5)

CRIMINAL: Justice Jaime Rios entered a judgment convicting Rudolph Hawthorne of second-degree (also known as depraved-indifference) murder for the death of an associate who allegedly assaulted Hawthorne after he refused to give the victim money for drugs. The trouble is, the evidence demonstrated that the killing was intentional not reckless, as required for depraved-indifference murder. The victim, after all, was hit in the head at least 10 times with a claw hammer. The conviction on the second-degree murder count therefore must be reversed, the Appellate Division concluded. People v. Hawthorne (December 5)

TORT: Linda Hitzler slipped and fell on water at the bottom of the St. Teresa Church’s staircase 15 minutes after the doors were opened on a rainy day, yet Justice Martin Schulman thought Hitzler had a valid argument that the church was to blame. Not so, said the Appellate Division. Since the church didn’t have enough time to notice and mop up the water, Hitzler’s suit should have been dismissed. Hitzler v. St. Teresa's Church (December 5)

LEGAL MALPRACTICE: Justice Schulman was too quick to dismiss Diane Furey’s malpractice suit against her divorce attorney, Lester Wallman. She appears to have a viable claim that the attorney erred in computing child support payments, and so her complaint on that ground should be reinstated. Furey v. Wallman (December 5)

LABOR LAW: Justice Augustus Agate correctly allowed Jicheng Liu to proceed with one of his claims against his employer for injuries he sustained when a ladder slipped out from under him. But the judge also should have granted Liu’s motion for summary judgment on his claim that his employer violated a labor law provision known as the scaffold law by failing to provide protection against elevation-related risks — in this case rubber feet that could have prevented the ladder from slipping. Jicheng Liu v. Sanford Tower Condominium, Inc. (December 5)

INSURANCE: Justice Agate should have allowed State Farm to rescind Richard Curiel’s homeowners’ policy because of the material misrepresentation he made in his application, the Appellate Division said. Curiel v. State Farm Fire & Casualty Co. (December 5)

DIVORCE: Justice Jeffrey Lebowitz let Mary Grassi’s husband off too easy with a spousal maintenance requirement of $350 per month and no attorney’s fees. In light of the length of the marriage and the disparity in the parties' incomes, Joseph Grassi should pay her $500 per month and should also fork over $10,000 in attorney’s fees, the Appellate Division said. Grassi v. Grassi (December 5)


RICHMOND COUNTY

DISCOVERY: The Appellate Division has long condoned the defense bar's informal practice of privately interviewing the doctors who treated plaintiffs who are pursuing medical malpractice cases. That tradition was based on the theory that after the note of issue has been filed, plaintiffs have waived the doctor-patient privilege. The Appellate Division is condoning the practice no longer. This case, in which Justice Thomas Aliotta let it happen, is the first to establish a new ground rule. If the defense attorneys want to talk to the plaintiff’s doctors, they can follow the standard procedures for conducting additional pretrial discovery. Arons v. Jutkowitz  (December 5)

NO-FAULT INSURANCE LAW: Justice Philip Minardo erred in declining to dismiss the plaintiffs’ claim that they were seriously injured in an accident. The evidence showed that they “experienced only various sprains and strains which had since resolved,” noted the Appellate Division, kicking the case out of court. Hasner v. Budnik (December 5)

ARBITRATION: Justice Eric Vitaliano turned down the bank’s motion to confirm an arbitration award based on what the Appellate Division characterized as an “inadvertent procedural error.” Since the glitch was rectified, Vitaliano should have lightened up on the bank and granted its wish to confirm the award, the appellate judges said. MBNA America Bank, N.A. v. Anastasio (December 5)

CIVIL PROCEDURE: Joint Hearing Officer Sacks overstepped his bounds when he ruled that a petition to stay arbitration was untimely. The judge who transferred the case to the hearing officer had already decided that the petition was timely, and Sacks had no authority to second-guess that determination. Matter of USAA Casualty Insurance Co. v. Hughes (December 5)