Judicial Reports:

By Mark Thompson
Posted 01-05-07 

KINGS TAKES CROWN

The Appellate Division's First and Second Departments closed out 2006 with a flurry of reversals, overturning 64 New York City trial court decisions in full or in part in the last two weeks of December.

As is its habit, the First Department, which covers Bronx and New York Counties, was by far the more deferential of the two appellate courts. Only 11 of the citywide total of 64 reversals involved cases from New York County (Manhattan), and just four were from the Bronx.

In contrast, the Second Department, which covers the three remaining city boroughs, closed out the year with guns blazing, shooting down 49 decisions from those counties. Two of the reversed cases were from Richmond County, which encompasses Staten Island, while 17 were from Queens and a whopping 30 were from Kings County (Brooklyn).

The disparity was even more striking on the criminal docket. No criminal cases from New York, Bronx or Richmond Counties were among the 64 year-end reversals, while three were from Queens and five were from Kings.

Are Kings County judges unusually bad or are the Second Department appellate judges inordinately nitpicky? Or are Brooklyn prosecutors out of control? Take a look at the recent spate of five Kings County criminal reversals and judge for yourself.

A conviction imposed by Judge Joel Goldberg was reversed after the judge turned the proceeding into what he himself conceded was a “game show.” The jury had returned a verdict but before it was revealed in court, Goldberg gave Damian Nicholson five minutes to decide whether he wanted to try his luck with the jury or plead guilty to the lesser included offense of third-degree robbery. Goldberg essentially “frightened the defendant into accepting [his] terms and waiving the jury,” said the Appellate Division, which reversed the conviction and also dismissed the indictment, on grounds that under the circumstances, a retrial would violate the double jeopardy clause. People v. Nicholson (December 26)

Justice Neil Firetog was reversed for being overly deferential towards a criminal defendant. Firetog had dismissed the indictment against Benjamin Sherman “in furtherance of justice” after the defendant was diagnosed with a serious medical condition. The Appellate Division noted, however, that since there was no evidence that Sherman’s status had significantly deteriorated, and since his survival prognosis was unclear, this was not one of the “rare” cases where dismissal in the interest of justice was warranted, particularly in light of Sherman’s extensive criminal record. The appellate judges reinstated the indictment. People v. Sherman (December 19)

Justice Matthew D'Emic convicted Trisha McPherson (after a nonjury trial) of depraved indifference murder. The evidence, however, was legally insufficient to establish that the defendant acted with the depravity and indifference to human life required for a conviction of that crime, said the Appellate Division, which reduced McPherson’s conviction to the lesser-included offense of second-degree manslaughter. People v. McPherson (December 19)

“Egregious” misconduct by the prosecutor prompted the Appellate Division to reverse a conviction imposed by Justice Michael Brennan on Tyrone Anderson for possession of stolen property and burglar's tools. The prosecutor told jurors that Anderson talked to the police without asking for a lawyer because “he knew he was guilty” and sought to inflame the jury by making assertions about Anderson that were not supported by the record. The misconduct was all the more objectionable in light of the less than overwhelming evidence that Tyrone Anderson was guilty, the appellate judges said in reversing the conviction. People v. Anderson (December 26)

Justice Anne Feldman was reversed for an error that, in contrast with those committed by her recently overturned Kings County criminal court colleagues, was minor and technical in nature. She sentenced Kalvin Marshall to an indeterminate, instead of a determinate, term of imprisonment. People v. Marshall (December 19)

OTHER NOTABLE REVERSALS

KINGS COUNTY

ATTORNEY FEES: Justice Ira Harkavy has been reversed three times in less than two months for, in effect, playing Santa Claus. He was reversed on October 31 for approving an attorney fee award of over $143,000 based on a vague, one-page bill. On December 12, he was reversed for declining to second guess a jury’s award of more than $5.7 million to a Sanitation Department worker who tripped in a pothole in a city owned parking lot. Harkavy’s generosity got the better of him once again in a ruling overturned December 19. He approved an award of $60,884 to reimburse a handwriting expert an “excessive and unreasonable” sum for services that by the Appellate Division’s reckoning weren’t worth more than $10,000. 

WORKERS COMPENSATION: Justice Harkavy picked up yet another reversal December 26. He should have dismissed the lawsuit filed by an injured worker whose exclusive remedy was through a worker’s compensation claim. Alam v. Taxi Wheels to Lease, Inc.

MEDICAL MALPRACTICE: Justice Melvin Barasch erred in setting aside a jury verdict for the plaintiff in a medical malpractice case. So said three of the five judges on an Appellate Division panel. In their view, the jury’s determination that the hospital’s delay in treating David Fellin was a proximate cause of his death was based on a reasonable interpretation of the evidence. Two dissenting appellate judges, however, sided with Barash. They noted that Fellin lapsed into a coma less than three-and-a-half hours after walking into the emergency room, giving the doctors too little time to perform brain surgery that might have saved his life. Fellin v. Sahgal (December 26)

CONTRACT: Justice Laura Jacobson jumped too quickly into Janet Cirignotta Meccariello’s corner in a bitter, long-running family feud over a jointly owned home. She granted Meccariello’s motion for summary judgment, ordering an in-law to act on the terms of a six-year-old stipulation and partition and sell the home. The Appellate Division sized up the dispute and found too many unanswered questions to warrant a summary disposition. Meccariello v. Di Pasquale (December 19)

REAL ESTATE: Justice Leon Ruchelsman improvidently vacated a foreclosure sale at the behest of Irving and Betty Brown, who had been “gaming the system” for years, said the Appellate Division, which reversed Ruchelsman and allowed the sale to proceed. Norwest Mortgage, Inc v. Brown (December 19)

TORT: Justice Mark Partnow prematurely dismissed a claim filed by Vivian Rodriguez against producers of a reality-based television program whose action-hungry camera crew was tagging along with the police when they served her with a search warrant and shot her in an ensuing scuffle. Her claim that the filmmakers and their employers at HBO and Time Warner were responsible for the police conduct was too far-fetched for Partnow. But the Appellate Division gave more credence to her claim. The suit presented a “cognizable claim” that the media defendants are in part liable for the police conduct because it “alleges that they acted in concert and encouraged the NYPD to use excessive force, thereby leading to the plaintiff's injuries,” the appellate judges concluded in reinstating the claim. Rodriguez v. City of New York (December 19)

LEGAL MALPRACTICE: Justice Herbert Kramer was too quick to dismiss a legal malpractice suit against a law firm that defended an employer in a suit filed by an injured worker and allegedly failed to investigate whether the company had excess insurance coverage. The worker eventually won a judgment of nearly $5.5 million, far exceeding the one-million dollar limit on the company’s primary policy. The Appellate Division found that the law firm never conclusively established that the scope of its representation did not include checking on the availability of insurance coverage, nor did the lawyers debunk the company’s claim that their failure to check was a proximate cause of the company's loss of excess coverage. Thus, the company should be allowed to proceed with its malpractice suit, the appellate judges concluded, reversing Kramer’s dismissal of the suit. Shaya B. Pacific LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP (December 19)

QUEENS COUNTY

TORT: Justice Orin Kitzes got reversed in three different personal-injury cases in one week. He erred in dismissing labor law claims against several of the defendants in a suit stemming from an accident that injured a worker at JFK Airport. Guerra v. Port Authority of New York and New Jersey. (December 26) He improperly allowed Jose Rivera to proceed with a suit under the labor law provision covering the erection and demolition of structures, even though Rivera was injured not by a building but by a falling tree. Rivera v. Santos (December 19) And Kitzes vacated the note of issue in a case when he should have placed the action back into pre-note-of-issue status. Galati v. C. Raimondo & Sons Construction Co. (December 26)

MEDICAL MALPRACTICE: Justice Patricia Satterfield was too hard on Florence Ciafone, dismissing her medical malpractice suit for her failure to properly file a notice of the action. The more forgiving Appellate Division reinstated Ciafone’s complaint, noting that she hadn’t disregarded any court directives or engaged in “protracted and repeated delays.” Ciafone v. New York Univ. Med. Ctr. (December 26)

EASEMENT: The Cypress Hills Cemetery couldn’t catch a break from Justice Satterfield, either. She rejected its claim that it holds an easement to use bridges and underpasses that cross the Jackie Robinson Parkway. The Appellate Division concluded to the contrary that the cemetery made a clear cut case for summary judgment on its claim for easements. Cypress Hills Cemetery v. City of New York (December 26)

MEDICAL MALPRACTICE: Justice Peter O'Donoghue approved a jury’s $4,400 award for the pain and suffering endured by Wanda LaTorre, who went to the doctor to have her tubes tied and ended up with thermal injury to her bowel, leakage from her navel, and severe abdominal pain that the left her in the hospital for six days and out of work for eight weeks. The Appellate Division found that unreasonably paltry and called for a  stipulated award of $150,000, nearly 35 times higher than the judge and jury had offered. LaTorre v. Knorr (December 19)

DISCOVERY: Justice Duane Hart wrongly denied the request of Carl G. Smith, Sr., to compel the Calvary Baptist Church to produce certain books and records. Hart evidently concluded that since Smith was no longer a deacon, he didn’t have standing to demand the records. But the Appellate Division noted that under not-for-profit corporation law, Smith membership in the congregation gives him all the standing he needs. His petition was in good faith though it was overbroad and therefore, on remand, may need to be narrowed by the court, the appellate judges said. Matter of Smith v. Calvary Baptist Church (December 19)

CRIMINAL: Justice Dorothy Chin-Brandt determined that Michael Costello is a "level two" sex offender based on her conclusion that he should be assessed 20 points for engaging in a “continuing course of sexual misconduct” with his victim. The trouble is, as the Appellate Division pointed out, Costello’s “victim” was a fictitious online persona created by an undercover detective posing as a 14-year-old boy. Since the victim didn’t actually exist, Costello had no “sexual contact” with him at all, and certainly not a “continuing course” of it. Take away those points erroneously tacked on by Chin-Brandt, and Costello is a "level one" sex offender, the appellate judges concluded. People v. Costello (December 19)

CRIMINAL: Justice Randall Eng entered a judgment convicting Samuel Beverly of two counts for the same offense. He should have dismissed the second-degree burglary conviction because it was a lesser included offense covered by the first-degree burglary conviction, the Appellate Division said. People v. Beverly (December 19)

CRIMINAL: Justice John Latella undercounted the points that Carl Smith should have been assessed for a youthful crime and therefore misclassified him as a "level two" sex offender when he should have been placed in "level three." People v. Smith (December 19)

NEW YORK COUNTY

ELECTIONS: Justice Shirley Werner Kornreich misinterpreted the New York City Campaign Finance Act when she held that candidates who run for city office will be personally liable for the repayment of any public matching campaign funds that have been determined by the board to have not been used for qualified campaign expenditures. In fact, the candidates’ campaign committees, not the candidates themselves, are solely liable, the Appellate Division said. New York City Campaign Finance Board v. Ortiz (December 19)

INSURANCE: Justice Karen S. Smith ordered an insurance company to pay the litigation expenses incurred by an adoption agency accused of failing to inform a couple that the child they adopted was HIV positive. Trouble is, said the Appellate Division, there was no evidence that an insurance policy was in effect when the adoption was arranged, so the agency’s claim for coverage should have been dismissed. Lutheran Social Services of Metropolitan New York, Inc. v. Guide One Insurance (December 21)

DAMAGES: Justice Diane A. Lebedeff approved a $4.75-million jury award to Janesia Fuller-Mosley for pain and suffering. The Appellate Division thought $2 million was reasonable and remanded for a new trial on damages unless Fuller-Mosley stipulates to the reduced award. Fuller-Mosley v. Union Theological Seminary (December 21)

INSURANCE, SANCTIONS: Justice Emily Jane Goodman slapped a sanction of $1,200 on Allstate Insurance for sending an attorney to a settlement conference who had no authority to settle the case. If Goodman had given Allstate a reasonable opportunity to explain, the Appellate Division said, she might have discovered that Allstate had a good excuse, namely the fact that since the plaintiff had not yet submitted to a medical examination by defendant's doctors, the case couldn’t be settled. The appellate judges tossed out the sanction and sent the case back to Goodman for a hearing. Tooker v. Morrisey (December 28)

DISCOVERY, ATTORNEYS FEES: Justice Herman Cahn let TeeVee Toons off too easy for repeated discovery violations that amounted to contempt of court in a suit brought by Prudential. Cahn awarded Prudential $150,250 in attorneys fees, but according to the Appellate Division, the extensive billing records detailing the costs incurred by Prudential as a result of the violations demonstrated that $285,000 was a more appropriate sanction. Prudential Securities Credit Corp., LLC v. TeeVee Toons, Inc. (December 28)

TORT: Justice Paula J. Omansky was too quick to agree with the plaintiff that water damage to its property was caused by the defendant’s leaking pipes. The defendant’s expert offered enough evidence to support an alternate explanation: that groundwater was to blame. It will take a trial to sort through the conflicting evidence, the Appellate Division said. Omansky got at least one thing right. If the plaintiff has a claim, the defendant will be liable for damages only for the three-year period prior to commencement of the suit. Congregation B'nai Jehuda v. Hiyee Realty Corp. (December 28)

LANDLORD TENANT: Justice Walter B. Tolub unjustifiably dismissed a landlord’s tortious interference claim against a holdover subtenant. The landlord had a viable cause of action based on the tenant’s refusal to vacate office space, despite having lost in an ejectment action, and the landlord has a right to take the recalcitrant tenant to trial on that issue, the Appellate Division said. Kronish Lieb Weiner & Hellman LLP v. Tahari, Ltd. (December 28)


BRONX COUNTY

TORT: For the second time in a little over a month, Justice Douglas E. McKeon showed that he is a sucker for a late claim involving an injured child. In November, he was reversed for allowing a mother to file a botched-birth tort suit against the city more than nine months beyond the 90-day deadline for making a claim. McKeon bought her excuse that the difficulty of caring for a disabled child prevented her from suing on time. In a case reversed in December, McKeon forgave Allen Webb’s 16-year delay in filing a claim for scalding injuries he sustained when he was a child left unattended in a bath in a foster home. McKeon accepted Webb’s explanation that he hadn’t sued earlier because he didn’t know his rights. The Appellate Division, however, said ignorance of the law is not a reasonable excuse for the lengthy delay, which seriously hampered the housing authority’s ability to investigate and prepare a defense. Webb v. New York City Housing Authority (December 28)

TORT, CIVIL PROCEDURE: Justice Patricia Anne Williams held the wrong company accountable for the injuries sustained by a worker on a job site. She refused to dismiss the complaint against Bovis Lend Lease Holdings, Inc. when in fact, the general contractor was Bovis Lend Lease LMB, Inc., a separate and distinct, albeit affiliated, entity. The complaint against the BLL Holdings should have been dismissed, said the Appellate Division. Blount v. Bovis Lend Lease Holdings, Inc. (December 28)

JUVENILE: Family Court Justice Monica Drinane determined that Alisha V. is a juvenile delinquent on grounds that she committed an assault. The Appellate Division, however, found reason to wonder whether crucial evidence was sprung unfairly on Alisha’s attorney. The appellate judges said the adjudication must be held in abeyance pending a hearing on whether a witness who identified Alisha was sufficiently familiar with her that the out-of-court identification was exempt from the statutory provision that otherwise would require advance notice to the defense attorney. Matter of Alisha V. (December 21)

TORT: Justice Paul Victor erred in allowing Griseida Puello to proceed with a suit against Irving Castle, who owned property adjacent to the section of sidewalk where Puello slipped and fell in an icy hole. The Appellate Division summarily dismissed the complaint against Irving based on the evidence showing that he did not create the hole or conduct ice removal in such a way that the natural hazard was worsened. Nor did he use that stretch of sidewalk for a special purpose, which would have made him responsible for its upkeep. Puello v. City of New York (December 21)

RICHMOND COUNTY

LAWYERS: Justice Anthony Giacobbe disqualified the defendant’s attorney while litigation was underway. According to the Appellate Division, that should never happen absent a clear showing that disqualification is warranted, and the plaintiff made no such showing in this case. Gulino v. Gulino (December 26)

Posted by Dirk on January 4, 2007 06:15 PM to Judicial Reports