In Rojas v. Motor Vehicle Accident Indemnification Corp. (February 8), Tingling was faulted by the Appellate Division for failing to look into a glaring discrepancy in the record, which suggested that Rojas may have been making it up.

According to the fire department’s ambulance call report, Rojas told paramedics who came to pick him up after the alleged accident that he was injured while defending himself in a fight. By the time he got to court, however, he had a different story, claiming that he was done in by a hit and run vehicle. On the strength of that claim, Tingling allowed Rojas to proceed with an uninsured motorist claim. The Appellate Division said Tingling should have first held a hearing to resolve the conflicting accounts about how Rojas got hurt.

Tingling’s other recent reversals have come in traffic-accident cases that have run the gamut from the mundane to the freakish.

On January 16 he was reversed for dismissing as untimely an uninsured motorist claim that was, in fact, filed on time. On January 4 he was reversed for dismissing claims against two drivers on grounds that they had not been properly served with the complaints. In fact, they had.

On December 21 Tingling was reversed for allowing Ahamed Ali to bypass the no-fault law and proceed with a personal injury suit, even though the medical reports Ali submitted failed to support his claim that he had been seriously injured.

Last September Tingling picked up a reversal in a more unusual case. He allowed two brothers to sue for psychological injuries they claimed were a result of an auto accident 20 years earlier when they were toddlers, strapped into the backseat of their family’s car, which was rear-ended, crippling their mother. The Appellate Division pointed out that the brothers’ alleged emotional injuries stemmed from having been raised by a succession of nannies in a broken home rather than from their direct observation of an accident that they admittedly barely remembered.

In another case in which Tingling overreached on behalf of a would-be plaintiff, he was reversed in October for allowing a motorcyclist to sue a driver for injuries he sustained when he suddenly lost control of his bike, and within seconds slid across a double yellow line into the hapless driver’s path.

In the most freakish case of all, Tingling was reversed on January for holding a Staples store to account for a traffic accident allegedly caused by one of its shopping carts, which was blown across a parking lot into an adjacent street on a windy day.

OTHER NOTABLE REVERSALS

KINGS COUNTY

TORT: Oft-reversed Justice Mark Partnow picked up two more reversals on February 6. In one case, he prematurely dismissed Dominick Robinson’s suit for injuries he sustained in an alleged assault by two other students at IS 285 in Brooklyn. In support of their motion to dismiss the suit, lawyers for the school district presented a transcript of an interview with the plaintiff’s mother. But a page of that transcript was missing, a page that the plaintiffs said was crucial to their case. With the mystery of what was on that missing page hovering over the case, Partnow should not have summarily dismissed the complaint, the Appellate Division said. Robinson v. City of New York (February 6)

ADMINISTRATIVE LAW: In the suit that led to Partnow’s second reversal of the day, the plaintiff, a private fire alarm company that isn’t connected to the city’s fire alarm communications system, argued that it shouldn’t be required to pay a fee for the service that it doesn’t use. Partnow disagreed. Partnow was wrong, the Appellate Division said. The plaintiff doesn’t forward any signals over the city’s network of dedicated telephone lines that handle fire alarms and therefore, its motion for a judgment declaring that it has no obligation to pay for the service should have been granted. AFA Protective Systems Inc. v. City of New York (February 6)

TORT: Justice David Vaughan gave an imprisoned rapper a break he didn’t deserve, the Appellate Division said. Vaughn was rapped for an “improvident exercise of discretion” in easing an injunction barring the artist known as Shyne from spending any of what remains of the $500,000 advance he received in a record deal. The stash, which has already been depleted in violation of court orders, must be preserved to pay possible damages in a pending personal injury action filed against the Puff Daddy protege by a woman he shot in the face, the appellate judges said. Vaughan was willing to let Shyne have $100,000, ostensibly to pay his lawyers. But as the Appellate Division pointed out, he had previously been allowed to withdraw $100,000 to pay legal fees, yet the attorneys who were supposed to get those funds claim they were never fully paid. Thompson v. 76 Corp. (February 6)

CRIMINAL: The evidence that Fulhencio Baldomero was guilty of selling drugs near school grounds was “overwhelming,” said the Appellate Division. But his conviction for that offense had to be overturned because of an error committed during the trial by Justice Michael Gary. The judge closed the courtroom during the testimony of an undercover officer, even though the officer no longer operated in the specific area of Brownsville where the alleged drug sale took place and had no immediate plans to return. That being the case, the prosecution couldn’t claim that the officer’s future as an undercover operative would be jeopardized if he were forced to testify in front of the friends and family of the accused, so closure of the courtroom deprived the defendant of his Sixth Amendment right to a public trial. It wasn’t a harmless error either. The highest court in the state has declared that unjustified closure of a courtroom during a criminal trial warrants reversal of any resulting conviction, the appellate panel observed. People v. Baldomero (February 6)

MEDICAL MALPRACTICE: If Alyce Graham arrived at a hospital these days, six months pregnant with ruptured uterine membranes, doctors would know exactly what to do. But the now widely accepted method of dealing with the condition was controversial in 1994, so Justice Marsha Steinhardt dismissed the medical malpractice suit filed on behalf of Graham’s child, who was born three months early with permanent brain damage. The Appellate Division concluded that while controversial at the time, the combination of medications that Graham insists her doctors should have given her was beginning to gain acceptance back then. When there are conflicts among medical authorities about what is or isn’t the proper standard of care, summary judgment is not appropriate in a medical malpractice action, the appellate judges said. Graham v. Mitchell (February 6)

LABOR LAW: Justice Howard Ruditzky allowed Marcos Leniar to proceed with a suit against the transit authority for injuries he sustained in a 13-foot fall from a scissor lift while he was painting a section of the Verrazano Bridge. As the Appellate Division saw it, however, Lenier bore the blame for the accident and his suit should have been kicked out of court. He intentionally unhooked his safety harness and climbed on the railing of the scissor lift, in direct violation of the instructions he had received, the appellate judges noted. Leniar v. Metropolitan Transit Authority (February 6)

TORT: Justice Yvonne Lewis should have dismissed Chaim Lissauer’s suit against a synagogue for his fall down a set of exterior stairs. Lissauer, after all, was unable to identify the cause of his fall and could only speculate that a code violation in the design of the stairs, rather than his own misstep or loss of balance, caused the accident. Lissauer v. Shaarei Halacha, Inc. (February 6)

MEDICAL MALPRACTICE: Even the plaintiff, Michael O'Connell, agreed that his lawyers deserved more money for representing him in a complicated medical malpractice case, but not Justice Joseph Levine. The judge insisted that the two law firms would have to make do with the statutory fee of $439,954.73 for their work in the complicated case, which involved a rare and difficult-to-diagnose lung disease and culminated in a $3 million verdict after a three-week trial. The Appellate Division disagreed with Levine, concluding that this was “one of those rare cases presenting the requisite extraordinary circumstances” that justified an increased fee award. The appellate panel boosted the fee to $750,000, to be divided 60/40 between the two firms. O'Connell v. Shivaram (February 6)

TORT: Justice Ira Harkavy, before denying the defendant’s motion to change venue to Westchester County, should have sorted out conflicting evidence regarding where the plaintiff, David Ramondi, actually resided. He claimed he lived in plaintiff-friendly Kings County, where he filed the suit. But the defendant produced evidence that in fact Ramondi was living in the more conservative environs of Nassau County. Since the question about where Ramondi resided “could not properly have been resolved on the papers alone, [Harkavy] should have held a hearing on the issue of residency,” the Appellate Division said. Ramondi v. Paramount Leasehold, L.P. (February 6)

CRIMINAL: Justice Abraham Gerges sentenced Howard Campbell for an array of drug and weapons counts on which he was convicted but tacked on a sentence for one drug-possession count for which he was not convicted, said the Appellate Division, modifying the sentence to correct the error. People v. Campbell (February 6)


NEW YORK COUNTY

JURY SELECTION: In the run-up to the robbery trial of Arturo Perez, Justice Rena K. Uviller was skeptical of the claim that on the first day of jury selection, the prosecutor had dismissed two black men for reasons that had nothing to do with their race. But Uviller concluded that since the defense didn’t object until the second round of jury selection on day two, and since the dismissed panelists by then were “long gone,” nothing could or needed to be done about it. The case proceeded to trial before a jury bereft of African Americans, which found Perez guilty as charged. The Appellate Division threw the conviction out, noting that the defense challenge in fact wasn’t too late because a claim of racial bias in picking jurors can be raised at any time during the selection process. Since Uviller had agreed there was merit to the defense attorney’s claim that the jurors had been wrongly dismissed because of their race, she “should have attempted to locate them, or given [Perez] additional peremptory challenges, or fashioned some other remedy,” the appellate judges said. People v. Perez (February 1)

INSURANCE LAW: It was unclear whether Tulia Caceres ever filed an accident report, as required under the Insurance Law, but Justice Richard F. Braun let her proceed with an uninsured motorist claim anyway. Braun should have first held an evidentiary hearing where questions about Caceres’ credibility could be resolved, the Appellate Division said. Matter of Caceres v. Motor Vehicle Accident Indemnification Corp. (February 8)

CORPORATIONS: Justice Herman Cahn concluded, in line with a number of other courts, that a limited partner has no standing to derivatively sue a limited liability company on the company’s behalf. The First Department of the Appellate Division, however, decided to part company with other courts, including the Second Department, leaving Cahn in the lurch. The appellate panel held that despite the absence of express language in the Limited Liability Company Law giving a member standing to file a derivative suit, there are persuasive reasons why a limited partner should be allowed to do so. For instance, courts have long recognized a common-law right to bring a derivative action on behalf of a corporation or a limited partnership, and one of the principles of statutory construction provides that only a clear statement of legislative intent may override the common law, the appellate judges said. Tzolis v. Wolff (February 8)

DISCOVERY: In another case, the Appellate Division said Justice Cahn erred in ordering the plaintiff to hand over to the defendant certain cover letters and invoices issued by the plaintiff’s former attorney. Melcher v. Apollo Medical Fund Management L.L.C. (February 8)

BRONX COUNTY

CIVIL PROCEDURE: Perhaps Justice Howard R. Silver should have shown a bit more sympathy for 88-year-old Wendell Jordan, who balked at proceeding with a sale of his property, asserting that he was confused by the prospective buyer’s last-minute tinkering with the contract. In the process, Jordan missed a court hearing and ended up on the wrong end of a default judgment ordering him to proceed with the sale. Silver should have vacated the default because it was not clear whether Jordan had been served with notice of the hearing he missed, giving him an excuse that was reasonable enough for the Appellate Division. Moreover, there were open questions about the late modifications to the sales contract, lending some credence to Jordan’s claim that the transaction should have been scuttled, the appellate judges said. Perez v. Jordan (February 8)

LANDLORD TENANT: A tenant at the Hunts Point Market wanted Justice Lucindo Suarez to issue a preliminary injunction, pending an ultimate resolution of its claim that it and the landlord had reached a binding oral agreement to extend the lease. Suarez gave the tenant even more – ruling in its favor on the underlying claim. In doing so, the judge overstepped his prerogatives, blindsiding the landlord, which had directed its arguments to the tenant’s requests for injunctive relief and never had an opportunity to make its case on the larger issue, the Appellate Division said. Teri-Nichols Industrial Food Merchants, LLC v. Elk Horn Holding Corp. (February 8)

SENTENCING: Justice Troy K. Webber imposed an excessive sentence of 39-years-to-life on Felipe Ramos, a persistent violent felon whose latest conviction was on robbery and weapons charges. The Appellate Division cut the sentence to 23-years-to-life. People v. Ramos (February 8)

QUEENS COUNTY

DENTAL MALPRACTICE: Justice Frederick Sampson erred in dismissing a claim against Dr. Joseph Cahaly for nerve damage sustained by one of his patients, Gabriela Bunea, after oral surgery. Cahaly didn’t check the nerve after the surgery to ascertain its status, and then didn’t refer Bunea to a nerve specialist when problems arose. Those lapses raised a triable issue about whether the dentist departed from the standard of care, said the Appellate Department in reinstating the complaint. Bunea v. Cahaly (February 6)

TORT: Justice Roger Rosengarten allowed Ming Y. Lam, the driver of the middle car in a three-car chain reaction collision, to proceed with a counterclaim against Hyeon Hee Park, the driver of the car in front. The Appellate Department, however, noted that Lam managed to come to a complete stop before the third car rear-ended him, propelling him into Park’s car. That being the case, even if Park was negligent in stopping short, that was not the proximate cause of Lam’s collision with the car driven by Park. Hyeon Hee Park v. Hi Taek Kim (February 6)

TORT: Justice James Dollard allowed Segundo Hilario Chimborazo, who fell from a shelving unit which he was using as a scaffold while working on a renovation project, to proceed with a suit against two defendants who were neither owners nor contractors and had no control over Chimborozo’s work. The complaint against them should have been dismissed, said the Appellate Division. Chimborazo v. WCL Assoc., Inc. (February 6)

Justice Golia (whether James or Joseph, the appellate opinion did not say) erred in ordering the sale of shares at a price that was set by outside experts. The shareholders agreement expressly provided that the petitioner's regular accountants should determine the value of the shares, the Appellate Division said. Matter of Trio Asbestos Removal Corp. v. Marinelli (February 6)