Two of the cases Marrero reviewed were upheld in October. One other that month, People v. Middleton (October 17), was reversed. In that case, Marrero failed to explain which risk assessment instrument he used and which factors he considered in determining that Duane Middleton was a level-two risk.

In November, Marrero was reversed again. Based on the points for his various offenses, Herbert Mark Thompson (no relation to your correspondent) qualified as a level-one sex offender. But Marrero agreed with prosecutors that he deserved to be boosted to level three because he allegedly had posed a “recent threat to reoffend.” According to the appellate division, that determination wasn’t supported by the evidence and flew in the face of the purpose of the Sex Offender Registration Act, which was “meant to address the need to protect the public from the risk of repeat offenses by sex offenders.”

As for Thompson, “In the 27 years that have followed the defendant's 1979 conviction for sexual abuse in the first degree, the defendant has not been convicted of any subsequent sexual offense,” the appellate court said, and his more recent conviction, six years ago for third-degree criminal possession of a weapon, wasn’t a violent felony offense. People v. Thompson (November 21). Marrero should have rebuffed prosecutors and stuck with the presumptive level-one risk assessment, the appellate judges said.
 

NEW YORK COUNTY

CIVIL RIGHTS: Justice Shirley Werner Kornreich upheld a jury’s award of $377,000 to the family of Jose Garcia, who was shot and killed by a police officer during a scuffle in which Garcia pulled a gun on the cop. Curiously, the jurors agreed that the officer’s response to Garcia’s “vicious attack” was justified and constituted neither a use of excessive force nor a violation of Garcia’s constitutional rights. In that event, Kornreich should have set aside the damage award, which was not supported by any fair interpretation of the evidence, the appellate division said. Garcia v. O'Keefe  (Nov. 21).

REAL ESTATE: Justice Charles E. Ramos concluded that a real estate broker was entitled to a $1.4 million commission for the lease of a Times Square site for a Sephora cosmetics store, even though the deal fell through. The landlord ultimately collected $8.75 million from Sephora, but that was to settle a lawsuit over the aborted lease. The retailer never paid a single month’s rent, which according to the terms of the brokerage agreement needed to happen before the broker could collect a commission, said the appellate division, dismissing the broker’s claim. HGCD Retail Services LLC v. 44-45 Broadway Realty Co. (November 28).

PARTNERSHIP: Any one of the participants in a limited partnership could have exercised their right to get an appraisal before a merger with another partnership went through, but none did so. Justice Ramos was willing to let some of them challenge the merger after the fact anyway. But the appellate division concluded that since the partners were silent when they had a chance to speak up, they must forever hold their peace, and dismissed the suit. Appleton Acquisition, LLC v. National Housing Partnership (November 21).

ATTACHMENT: Justice Sherry Klein Heitler was as worried as Justin Mitchell about the intentions of a company that suddenly started a new business venture while Mitchell’s suit against the firm was pending. Mitchell was convinced the company was trying to squirrel away assets to avoid paying a prospective judgment, and Heitler agreed, ordering the defendant to post a $160,000 bond. Heitler should have been suspicious of Mitchell, the appellate division said. There was no evidence that the defendant intended to defraud anyone, nor that it was in financial distress and might have trouble paying a judgment. Mitchell is the one who should have been required to post a bond — to pay the defendant’s legal fees “in the event, now realized, that plaintiff was found not entitled to an attachment,” the appellate judges said. Mitchell v. Fidelity Borrowing LLC (November 28).

DISABILITIES: Justice Judith J. Gische let Dean Pelton proceed with a suit against the board of his 77 Park Avenue condominium for its failure to make the common areas of the building accessible for the wheelchair he needed due to muscular dystrophy. The appellate division thought the board did the best it could to accommodate his needs, and dismissed the suit. Pelton v. 77 Park Avenue Condominium (November 21).


BRONX COUNTY

DIVORCE: Hubert Annibaffa claimed he wasn’t notified about a hearing in which his marital assets were divvied up, but Special Referee John Ostermann evidently didn't hear. Ostermmann “overlooked facts” offered by Hubert in his motion to vacate the default divorce judgment that ended his marriage to Eugenie Annibaffa. Ostermann also “failed to evaluate the marital property sufficiently,” said the appellate division, which sent the matter back to the referee for further proceedings. Annibaffa v. Annibaffa (November 21).

TORT: Luz Nieves waited more than a year to notify the city of her intent to sue for her child’s birth defects, blaming her failure to file a notice of claim within the 90-day statutory limit on the extraordinary demands of raising a disabled baby. Justice Douglas McKeon thought that was a reasonable excuse and granted Nieves leave to file a late claim. The appellate division thought otherwise, and dismissed the case. Matter of Nieves v. New York Health and Hospitals Corp. (November 21).

TORT: Justice Kenneth L. Thompson let Thea Johannsen proceed with a suit against Bestany Rudolph for Johannsen’s trip and fall on a plastic packaging loop in an alleyway near a dumpster used by Rudolph’s store. The plaintiff’s attorney insisted that Rudolph must be the one who was responsible for the hazard because no other store in the vicinity used that kind of packaging material. The only evidence produced by the attorney to support that claim was his own statement, noted the appellate division, concluding that Thompson should have dismissed the suit. Johannsen v. Rudolph (November 21).

CRIMINAL: Justice Megan Tallmer entered a judgment convicting Donnell McCallop of, among other things, assault in furtherance of the felony of criminal mischief, even though the jury acquitted defendant of that particular underlying crime. The appellate division vacated the conviction on the “assault in furtherance” count while letting the convictions on other counts stand. People v. McCallop (November 28)

TORT: Justice Barry Salman let Carlos Sedeno proceed with a suit against Victoria Luciano, who owned the building next door, which housed a dog that rushed out onto the sidewalk and bit Sedeno’s child. As the appellate division noted, Luciano was merely the landlord of the premises where the dog was kept, and therefore had no responsibility to prevent a dog-bite incident that didn’t even occur on her property, so Salman should have dismissed the suit. Sedeno v. Luciano (November 28).

TORT: The drivers of the first two cars in a five-car collision on the George Washington Bridge insisted that they had come to a complete stop before the crash. Nonetheless, Justice Howard R. Silver declined to dismiss claims against them filed by Adriane Ferguson, the driver of a car towards the rear of the pileup. As the appellate division saw it, Ferguson’s attempt to pass the blame was based on nothing but speculation, which wasn’t enough to overcome the presumption that a driver who rear-ends another is at fault. Ferguson v. Honda Lease Trust (November 28).

JUVENILE: The appellate division agreed with Justice Monica Drinane that a juvenile named Orneil was guilty of criminal trespass and attempted larceny for entering a fenced yard, refusing to leave when asked and attempting to walk away with a bicycle. But Drinane went too far in finding him guilty of burglary because the outdoor storage area where the bike was kept, which had a roof but was enclosed by a fence, did not meet the burglary statute’s definition of a “building.” Matter of Orneil F. (November 28).

QUEENS COUNTY

Justice Thomas Polizzi picked up a hat trick of reversals, all on the same day. In two of the cases, he seemed to have too much sympathy for the plaintiffs but in the third case, he wasn’t empathetic enough.

TORT: Polizzi allowed Pargat Singh to proceed with a suit against a contractor for a workplace accident that occurred after the contractor had completed its work, packed up its tools, and moved on. Singh v. Kreisler Borg Florman General Construction Company, Inc, Inc. (November 21).

REAL ESTATE: Miguel Avila sold Polizzi on his claim that he had a right to buy two houses from the Arsada Corp. On the would-be buyer’s behalf, the judge entered a notice of pendency enjoining anyone else from leasing, renting, or otherwise encumbering the properties while he sorted out his dispute with the seller. Trouble is, while Avila was dithering over whether to proceed with the purchase, Roland Eshaghoff snapped up the properties and recorded his deeds before Avila got around to filing his notice of pendency. Polizzi should have told Avila his motion for an injunction was too late. Avila v. Arsada Corp. (November 21).

TORT: Polizzi was too quick to dismiss Peter Ames’s personal injury suit, said the appellate division. The grocery store where Ames allegedly slipped and fell didn’t on that day specify when the accident area was last inspected or cleaned, so the store wasn’t entitled to summary dismissal of the claim. Ames v. Waldbaum, Inc. (November 21).

TORT: Justice Marguerite Grays denied Jason Wong’s motion to dismiss the suit filed against him by Hou-Ching Chou, even though the evidence showed that Chou, after stopping at a stop sign, proceeded directly into the path of Wong’s oncoming car. Though Wong had the right-of-way, Chou insisted the other driver was speeding, a claim the appellate division rejected as purely speculative. Hou-Ching Chou v. Wong (November 21).

DIVORCE: Justice Sidney Strauss ordered Salim Sheikh to pay his ex-wife Amina Basheer for the $50,000 in attorney’s fees she incurred in the divorce. Strauss did so without holding a hearing, which, according to the appellate division, was necessary under the circumstances “to explore in a meaningful way the value and time of the claimed services of counsel.” Sheikh v. Basheer (November 21).


KINGS COUNTY

TORT: As noted in last week’s Reversal Report, Justice Mark Partnow has been reversed four times in less than two months for erroneously denying motions to dismiss dubious tort suits. He has been reversed in a personal-injury suit yet again, but this time for prematurely dismissing a claim by tenants who deserved a day in court. They had repeatedly complained to their landlord about a loosely attached sink. But it still hadn’t been repaired when a child in the family leaned on it, causing it to shift, which in turn allegedly caused the child to slip and fall. The landlord failed to refute the plaintiff’s claim that he'd been notified of the problem, so Partnow shouldn’t have summarily dismissed the suit. Mercedes v. Menella (November 21).

TORT: More than a month after Five Towns Toyota sold a car, it was involved in an accident that injured Julius Zimmerman, who later died. Justice Howard Ruditzky dismissed the estate’s claim against the dealership on the theory that it no longer owned the vehicle. Trouble is, the dealer evidently never got around to completing the paperwork to transfer ownership to the purchaser, as it is required to do within five days, and therefore, according to the appellate division, the dealership unwittingly kept itself on the hook in the case. Estate of Julius Zimmerman v. Mitsubishi Motors Credit of America Inc. (November 21).

CRIMINAL: Justice Plummer Lott agreed with a jury that Lawrence Palmer was guilty of a “depraved indifference” assault for cuts he inflicted while swinging a knife back and forth to ward off an attack by a group of boys. The appellate division saw it differently. Palmer had recklessly inflicted the injury, but “in the heat of battle,” he did not have “the culpable mental state of depraved indifference to human life,” so Lott should have reduced the conviction on that count to a third-degree assault. People v. Palmer (November 21).