By Mark Thompson
Posted01-26-07
DRIVERS ED FOR JUDGES
Drivers minding their own business when they are struck by other vehicles that barrel across multiple lanes into their cars generally don't expect to become defendants in ensuing lawsuits. Wily lawyers for careless drivers, however, are past masters at figuring out how to pass blame to those who were merely hapless, and they occasionally succeed at convincing trial judges of the merits of their fanciful accident reconstructions.
Bronx County Justice Norma Ruiz is the latest judge who was willing to put a hapless motorist on trial for damages in an accident caused by another vehicle that careened out of control. Mark Williams was the victim who was surprised to find himself on the defense in Ruiz's court. He saw the collision between two cars moving in the opposite direction and instinctively hit his brakes while remaining in his lane. That fateful decision left him in the path of one of the other cars, which spun across the double yellow line before colliding with him. It also left him vulnerable to a suit for damages for his share of the fault, in Ruiz's view.
The Appellate Division's First Department reversed Ruiz and proceeded to explain, for the second time in a little more than three months, why a driver who is hit by a vehicle that swerves into his or her lane generally can't be blamed for the ensuing collision.
In October, the appellate judges reversed Justice Milton Tingling in a similar case. The hapless driver in that case, Bender v. Gross (October 12), had "a matter of seconds" to react to a motorycle that slid across a double yellow line, leading to the ensuing collision. Yet Tingling was willing to allow the motorcyclist to proceed with a suit against the other driver, until the Appellate Division intervened.
In the latest case, Williams v. Simpson (January 23), the appellate judges apparently figured they should offer a more complete explanation of the legal principles that apply in such cases. Accidents that are caused when one car careens across a double yellow line are called "cross overs," the appellate judge explained for starters. "In cases where the cross-over and collision occur almost instantaneously, the driver in the proper lane cannot be considered negligently responsible for any part of the accident," they said. In case that isn't clear enough, they added, "A driver in his proper lane is not required to anticipate that an automobile going in the opposite direction will cross over into his lane of traffic."
NEW YORK COUNTY
LANDLORD TENANT: As reported in this column on December 14, Justice Walter B. Tolub has repeatedly been reversed in recent months, more often that not for misinterpreting contract and lease provisions that, in the Appellate Division’s view, unambiguously called for a different result. Tolub was reversed in two more cases on Jan. 18, one of which involved yet another apparent lapse in reading comprehension skills. In a dispute over an alleged breach of a commercial lease, a Duane Reade store exercised its right, as clearly spelled out in the lease, to cure a default. Tolub erroneously concluded that the owner had grounds for terminating the lease anyway. Tolub also awarded attorney's fees to the landlord, even though, as the appellate judges saw it, the lease gave the landlord no such right. Duane Reade v. Highpoint Assoc. IX, LLC (January 18)
CIVIL PROCEDURE: Justice Tolub granted XYZ’s summary judgment motion even though it was filed late and without any explanation for the delay. Tolub should have rejected the motion as untimely, the Appellate Division said. Cabibel v. XYZ Associates, L.P. (January 18)
DAMAGES: Justice Karen S. Smith overcompensated for a jury’s lowball $32,500 award for pain and suffering in a dental malpractice case in which Dr. Michael King was found liable for failing to diagnose a congenital deformity in Daniel Perlin's jaw. Smith correctly increased the award but her additur of $167,500 was too generous by $40,000, in the appellate judges’ view. Perlin v. King (January 18)
CONTRACT: Justice Helen Freedman properly denied the defendant's motion to dismiss a breach of contract claim. However, Freedman should have dismissed the claim alleging fraudulent inducement, the Appellate Division said. That claim was not sufficiently distinct from the claim for breach of contract, and "general allegations that a party entered into a contract with the intention not to perform it are insufficient to support a claim for fraud." Town House Stock LLC v. Coby Housing Corp. (January 23)
CLAIMS: Justice Alan C. Marin rejected Kenneth Hunt's claim for compensation for sexual assaults he endured in jail while awaiting trial. Marin apparently agreed with the state's attorneys that the state cannot be held liable for discretionary judgments of its employees. The Appellate Division, however, concluded that Hunt was left vulnerable to the assault because a court officer failed to properly record the judge's directive to place Hunt in protective custody. Recording a judge's orders is a ministerial act, not a discretionary judgment, and the state can be held liable for an employee's negligence in carrying out that sort of task, said the appellate judges, who concluded that Hunt has a viable claim. The only question to be determined on remand is how much he should get. Hunt v. State of New York (January 23)
CIVIL PROCEDURE: Justice Eileen Bransten improperly invoked the doctrine of equitable estoppel to bar the city from complaining about a late notice of claim in a medical malpractice case. The Appellate Division noted that since the that city's delay in producing a medical report had nothing to do with the plaintiff's failure to file a claim within the statutory time limit, the extraordinary remedy of equitable estoppel does not apply in this case. Walker v. New York City Health and Hospitals Corp. (January 23)
BRONX COUNTY
MEDICAL MALPRACTICE: Justice Patricia Anne Williams allowed the plaintiff to amend a medical malpractice suit to assert that lithium was the drug that was improperly monitored, leading to the patient's death. The new evidence produced by the plaintiff, however, asserted that lithium was the cause for the patient's admission to the hospital but did not alter the alleged cause of death, which was the patient's reaction to other medications. Williams therefore should not have allowed the plaintiff to amend her bill of particulars and should have dismissed the complaint. Katechis v. Our Lady of Mercy Medical Center (January 23)
TORT: Justice Lucy Billings declined to dismiss a personal injury claim filed by Michael Puma, who drove his bicycle into a bollard. Billings should have taken a closer look at the plaintiff's own photographs of the accident site, the Appellate Division said in reversing her ruling and dismissing the complaint. There was nothing dangerous about the bollard, the photo revealed. It was plainly visible, with reflectors affixed, and was properly placed at a intersection in a bicycle path to warn of crossing vehicular traffic. Puma v. City of New York (January 23)
PAROLE: Justice Raymond L. Bruce blamed the state for failing to provide David Moore with a timely parole revocation hearing. In fact, it was Moore’s requests for accommodations for his religious and medical needs that were responsible for the delays in scheduling the hearing, the Appellate Division said, reversing Bruce’s grant of Moore’s petition for writ of habeas corpus. People of the State of New York ex rel. David Moore v. Warden, Rikers Island Correctional Facility (January 18)
QUEENS COUNTY
TORT: Justice Arnold Price dismissed Antillas Air Freight Inc. from a suit filed by Sandy Calderon for injuries she sustained when a Royal Antillas Air truck hit her car. The Appellate Division, however, noted that since the two corporate entities used the same logo and telephone numbers, and apparently shared an office and an employee, Price should have allowed Calderon to argue at trial that Royal is an agent of Antillas Air, and that Antillas Air is liable for its agent's negligence. Calderon v. Antillas Air Frgt., Inc. (N. Y.) (January 16)
NO FAULT INSURANCE LAW: Justice Price concluded that Young Lim failed to present enough evidence to show that she incurred a serious injury, a ruling that prevented her from bypassing the no-fault law and suing for damages. The Appellate Division was more impressed with Lim's evidence. The affidavits produced by her doctor and physical therapist contained objective findings showing a measurably decreased range of motion in her cervical spine, the appellate judges noted, reinstating Young Lim's lawsuit. Lim v. Tiburzi (January 16)
NO FAULT INSURANCE LAW: Justice Augustus Agate dismissed Musa Dzaferovic’s serious injury claim against Jose A. Polonia on grounds that the defense evidence showed that Dzaferovic had no significant loss of range of motion. According to the Appellate Division, however, the defense evidence didn't explain how the plaintiff's range of motion diverged from the norm and therefore failed to refute Dzaferovic's own evidence of serious injury. Dzaferovic v. Polonia (January 16)
CONTRACT: Justice Allen Beldock, after a nonjury trial, concluded that Carlo Lizza & Sons Paving breached its contract with City Ready Mix. The Appellate Division, however, found that City Ready Mix's contract was with a related but distinct entity, Hicksville Paving, Inc. In fact, the plaintiff's president conceded that he intially sought payment from Hicksville and went after Carlo Lizza & Sons only after Hicksville failed to make payments as required by the contract. Beldock shouldn’t have let City Ready Mix make that switch, the Appellate Division said. City Ready Mix, Inc. v. Hicksville Paving, Inc. (January 16)
TORT: Justice Thomas Polizzi let Deborah Contos amend her personal-injury complaint to add an auto dealership as a defendant more than three-and-a-half years after the accident. Polizzi should have rejected the amended complaint as time-barred, the Appellate Division said. Contos had known since shortly after the accident that the dealer was the owner of the vehicle, leaving her with no excuse for failing to bring the dealer into the suit before the expiration of the statute of limitations. Contos v. Mahoney (January 16)
WRONGFUL IMPRISONMENT: Court of Claims Judge Alton R. Waldon let the state off the hook on the claim for compensation for wrongful imprisonment filed by Gerald Harris after he was exonerated in a robbery for which he had been convicted and sent to prison. Waldon evidently bought the state's excuse that since it was “an entity that was not involved in the claimant's criminal prosecution, it lacks personal knowledge of the relevant facts.” The Appellate Division was unpersuaded. “The state cites no authority for the proposition that the normal rules governing summary judgment motions do not apply to a party lacking personal knowledge of the operative facts, and that such a party need not make any effort to ascertain those facts, through discovery or otherwise,” the appellate judges observed in reinstating Waldon's compensation claim against the state. Harris v. State of New York (January 16)
CRIMINAL: Justice Arthur Cooperman imposed a conviction for assault in the second degree against Keion Richmond on grounds that a bite he inflicted on an officer attempting to arrest him constituted a physical injury. The Appellate Division disagreed. The officer did not bleed, did not take any pain medication, did not miss work as a result of the bite, and did not testify as to the duration of his pain. He took antibiotics and experienced tenderness and swelling, but that wasn't enough to turn the bite into a "physical injury" as defined in the assault statute, the appellate judges said. People v. Richmond (January 16)
In the latest case, Williams v. Simpson (January 23), the appellate judges apparently figured they should offer a more complete explanation of the legal principles that apply in such cases. Accidents that are caused when one car careens across a double yellow line are called "cross overs," the appellate judge explained for starters. "In cases where the cross-over and collision occur almost instantaneously, the driver in the proper lane cannot be considered negligently responsible for any part of the accident," they said. In case that isn't clear enough, they added, "A driver in his proper lane is not required to anticipate that an automobile going in the opposite direction will cross over into his lane of traffic."
NEW YORK COUNTY
LANDLORD TENANT: As reported in this column on December 14, Justice Walter B. Tolub has repeatedly been reversed in recent months, more often that not for misinterpreting contract and lease provisions that, in the Appellate Division’s view, unambiguously called for a different result. Tolub was reversed in two more cases on Jan. 18, one of which involved yet another apparent lapse in reading comprehension skills. In a dispute over an alleged breach of a commercial lease, a Duane Reade store exercised its right, as clearly spelled out in the lease, to cure a default. Tolub erroneously concluded that the owner had grounds for terminating the lease anyway. Tolub also awarded attorney's fees to the landlord, even though, as the appellate judges saw it, the lease gave the landlord no such right. Duane Reade v. Highpoint Assoc. IX, LLC (January 18)
CIVIL PROCEDURE: Justice Tolub granted XYZ’s summary judgment motion even though it was filed late and without any explanation for the delay. Tolub should have rejected the motion as untimely, the Appellate Division said. Cabibel v. XYZ Associates, L.P. (January 18)
DAMAGES: Justice Karen S. Smith overcompensated for a jury’s lowball $32,500 award for pain and suffering in a dental malpractice case in which Dr. Michael King was found liable for failing to diagnose a congenital deformity in Daniel Perlin's jaw. Smith correctly increased the award but her additur of $167,500 was too generous by $40,000, in the appellate judges’ view. Perlin v. King (January 18)
CONTRACT: Justice Helen Freedman properly denied the defendant's motion to dismiss a breach of contract claim. However, Freedman should have dismissed the claim alleging fraudulent inducement, the Appellate Division said. That claim was not sufficiently distinct from the claim for breach of contract, and "general allegations that a party entered into a contract with the intention not to perform it are insufficient to support a claim for fraud." Town House Stock LLC v. Coby Housing Corp. (January 23)
CLAIMS: Justice Alan C. Marin rejected Kenneth Hunt's claim for compensation for sexual assaults he endured in jail while awaiting trial. Marin apparently agreed with the state's attorneys that the state cannot be held liable for discretionary judgments of its employees. The Appellate Division, however, concluded that Hunt was left vulnerable to the assault because a court officer failed to properly record the judge's directive to place Hunt in protective custody. Recording a judge's orders is a ministerial act, not a discretionary judgment, and the state can be held liable for an employee's negligence in carrying out that sort of task, said the appellate judges, who concluded that Hunt has a viable claim. The only question to be determined on remand is how much he should get. Hunt v. State of New York (January 23)
CIVIL PROCEDURE: Justice Eileen Bransten improperly invoked the doctrine of equitable estoppel to bar the city from complaining about a late notice of claim in a medical malpractice case. The Appellate Division noted that since the that city's delay in producing a medical report had nothing to do with the plaintiff's failure to file a claim within the statutory time limit, the extraordinary remedy of equitable estoppel does not apply in this case. Walker v. New York City Health and Hospitals Corp. (January 23)
BRONX COUNTY
MEDICAL MALPRACTICE: Justice Patricia Anne Williams allowed the plaintiff to amend a medical malpractice suit to assert that lithium was the drug that was improperly monitored, leading to the patient's death. The new evidence produced by the plaintiff, however, asserted that lithium was the cause for the patient's admission to the hospital but did not alter the alleged cause of death, which was the patient's reaction to other medications. Williams therefore should not have allowed the plaintiff to amend her bill of particulars and should have dismissed the complaint. Katechis v. Our Lady of Mercy Medical Center (January 23)
TORT: Justice Lucy Billings declined to dismiss a personal injury claim filed by Michael Puma, who drove his bicycle into a bollard. Billings should have taken a closer look at the plaintiff's own photographs of the accident site, the Appellate Division said in reversing her ruling and dismissing the complaint. There was nothing dangerous about the bollard, the photo revealed. It was plainly visible, with reflectors affixed, and was properly placed at a intersection in a bicycle path to warn of crossing vehicular traffic. Puma v. City of New York (January 23)
PAROLE: Justice Raymond L. Bruce blamed the state for failing to provide David Moore with a timely parole revocation hearing. In fact, it was Moore’s requests for accommodations for his religious and medical needs that were responsible for the delays in scheduling the hearing, the Appellate Division said, reversing Bruce’s grant of Moore’s petition for writ of habeas corpus. People of the State of New York ex rel. David Moore v. Warden, Rikers Island Correctional Facility (January 18)
QUEENS COUNTY
TORT: Justice Arnold Price dismissed Antillas Air Freight Inc. from a suit filed by Sandy Calderon for injuries she sustained when a Royal Antillas Air truck hit her car. The Appellate Division, however, noted that since the two corporate entities used the same logo and telephone numbers, and apparently shared an office and an employee, Price should have allowed Calderon to argue at trial that Royal is an agent of Antillas Air, and that Antillas Air is liable for its agent's negligence. Calderon v. Antillas Air Frgt., Inc. (N. Y.) (January 16)
NO FAULT INSURANCE LAW: Justice Price concluded that Young Lim failed to present enough evidence to show that she incurred a serious injury, a ruling that prevented her from bypassing the no-fault law and suing for damages. The Appellate Division was more impressed with Lim's evidence. The affidavits produced by her doctor and physical therapist contained objective findings showing a measurably decreased range of motion in her cervical spine, the appellate judges noted, reinstating Young Lim's lawsuit. Lim v. Tiburzi (January 16)
NO FAULT INSURANCE LAW: Justice Augustus Agate dismissed Musa Dzaferovic’s serious injury claim against Jose A. Polonia on grounds that the defense evidence showed that Dzaferovic had no significant loss of range of motion. According to the Appellate Division, however, the defense evidence didn't explain how the plaintiff's range of motion diverged from the norm and therefore failed to refute Dzaferovic's own evidence of serious injury. Dzaferovic v. Polonia (January 16)
CONTRACT: Justice Allen Beldock, after a nonjury trial, concluded that Carlo Lizza & Sons Paving breached its contract with City Ready Mix. The Appellate Division, however, found that City Ready Mix's contract was with a related but distinct entity, Hicksville Paving, Inc. In fact, the plaintiff's president conceded that he intially sought payment from Hicksville and went after Carlo Lizza & Sons only after Hicksville failed to make payments as required by the contract. Beldock shouldn’t have let City Ready Mix make that switch, the Appellate Division said. City Ready Mix, Inc. v. Hicksville Paving, Inc. (January 16)
TORT: Justice Thomas Polizzi let Deborah Contos amend her personal-injury complaint to add an auto dealership as a defendant more than three-and-a-half years after the accident. Polizzi should have rejected the amended complaint as time-barred, the Appellate Division said. Contos had known since shortly after the accident that the dealer was the owner of the vehicle, leaving her with no excuse for failing to bring the dealer into the suit before the expiration of the statute of limitations. Contos v. Mahoney (January 16)
WRONGFUL IMPRISONMENT: Court of Claims Judge Alton R. Waldon let the state off the hook on the claim for compensation for wrongful imprisonment filed by Gerald Harris after he was exonerated in a robbery for which he had been convicted and sent to prison. Waldon evidently bought the state's excuse that since it was “an entity that was not involved in the claimant's criminal prosecution, it lacks personal knowledge of the relevant facts.” The Appellate Division was unpersuaded. “The state cites no authority for the proposition that the normal rules governing summary judgment motions do not apply to a party lacking personal knowledge of the operative facts, and that such a party need not make any effort to ascertain those facts, through discovery or otherwise,” the appellate judges observed in reinstating Waldon's compensation claim against the state. Harris v. State of New York (January 16)
CRIMINAL: Justice Arthur Cooperman imposed a conviction for assault in the second degree against Keion Richmond on grounds that a bite he inflicted on an officer attempting to arrest him constituted a physical injury. The Appellate Division disagreed. The officer did not bleed, did not take any pain medication, did not miss work as a result of the bite, and did not testify as to the duration of his pain. He took antibiotics and experienced tenderness and swelling, but that wasn't enough to turn the bite into a "physical injury" as defined in the assault statute, the appellate judges said. People v. Richmond (January 16)