Price had ruled that prosecutors couldn’t present evidence that Yury Padilla possessed the keys to an apartment that he had rented in a building at 305 East 166th Street in the Bronx, where police found a high tech marijuana growing operation going full tilt. The Appellate Division, however, wasn’t troubled in the least by the somewhat circuitous chain of events that led to the drug bust. Padilla’s attorney, Robert Laureano, said in an interview he couldn’t believe that not even one of the five judges on the appellate panel was willing to go out on a limb with Price and pronounce the search and seizure illegal.

It all began at a neighborhood meeting where an elderly woman alerted police about the suspicious comings and goings of a Hispanic male in a blue BMW. A week later, a couple of officers in plainclothes happened to be nearby when Padilla, a Hispanic male, stepped out of a blue BMW and entered the building on 166th Street. As it also happened, that particular building was registered in the “Safe Halls” program, meaning that its manager had given the police a signed affidavit authorizing them to arrest anyone who entered without a legitimate reason.

As the appellate judges explained in People v. Padilla (February 27), the neighbor’s tip plus the status of the building gave officers sufficient reason to approach Padilla and ask a few questions. When he denied that he had been in the building, which unbeknownst to him the officers had seen him enter and exit, that deception gave them good cause to turn up the heat and briefly detain him for further questioning. At that point, Padilla supposedly tried to quietly ditch a set of keys, one of which led to the indoor pot plantation.

There were several more detours along the way, but before long the officers discovered the marijuana. All prosecutors had to do was get the evidence past Price. He refused to let them use it against Padilla on grounds that the chain of events leading to the evidence had begun with nothing more than a flimsy hunch, and police need more than that to launch an interrogation of one who has otherwise done nothing wrong.

Laureano tips his hat to Price for having the guts to grant the motion to suppress. “The woman didn’t identify the building or the apartment. She didn’t give a height or a description. It was just a Hispanic male driving around in a BMW,” Laureano said. “There was no evidence that my client was that particular person. That’s what was troubling to Price.”

None of the judges on the appellate panel, however, had any such qualms. They concluded that a pair of commendably vigilant cops had acted reasonably and that the evidence should not have been suppressed.

OTHER NOTABLE REVERSALS

BRONX COUNTY

INSURANCE: Justice Yvonne Gonzalez bought a produce company’s dubious excuse for waiting nearly a year after an incident to notify its insurer that it might be facing a claim. The owner of RMD Produce insisted he honestly didn’t believe his company would be sued, a claim that the Appellate Division found far-fetched. The owner’s brother, after all, had gotten into bloody brawl with a fire inspector and a pair of cops when the inspector dropped by to inspect RMD’s space in the New York City Terminal Market, and the brother had ended up under arrest. The plucky employee was simply defending himself and his place of business, which happened to have a large amount of cash on hand that day, he said, a claim that would surely shield the company from liability, RMD insisted. That flimsy potential defense didn’t absolve RMD of its obligation, as clearly spelled out in the insurance policy, to notify its insurer “as soon as practicable” after any occurrence that might give rise to a claim, the appellate panel concluded. RMD’s owner should have notified the insurer as soon as he learned about the donnybrook, not nearly a year later when he was served with a copy of the fire inspector’s lawsuit. Having failed to do so, depriving the insurer of a chance to investigate the incident when memories were fresh, Gonzalez should have dismissed RMD’s demand that the insurer must defend and indemnify the company in the lawsuit, the Appellate Division said. RMD Produce Corp. v. Hartford Casualty Insurance Co. (February 22)

CIVIL PROCEDURE, LEGAL MALPRACTICE:  Justice Gonzalez gave another litigant way too much leeway in another case. She let Juan Garcia make numerous changes in his deposition testimony, even though Garcia failed to timely submit a statement of reasons for the errata sheets. In his deposition, he was explaining the circumstances that gave rise to a personal injury claim against his employer, who had supposedly given him a ladder with a missing rung. That claim had been dismissed and Garcia was now suing his lawyer, Tom Stickel, for allegedly botching the case. The unrevised deposition and affidavits were insufficient to raise an issue of fact as to whether Garcia’s underlying personal injury claim would have prevailed but for Stickel’s alleged legal malpractice, said the Appellate Division. So Gonzalez should have summarily dismissed the malpractice claim instead of giving Garcia a belated chance to fill the gaps in his story. Garcia v. Stickel (February 27)

REAL ESTATE: Justice Alan J. Saks let a condominium board extinguish a limited partnership’s mortgage lien on a unit and take it over, free and clear, in a foreclosure proceeding. Saks evidently failed to notice that the board missed a crucial step along the way. The limited partnership had recorded its mortgage prior to the commencement of the foreclosure action, which meant that it was a “necessary party” that the board should have joined in the proceeding. Having failed to do so, the partnership’s right of redemption was not extinguished by the judgment in the foreclosure action, the Appellate Division said. Board of Managers of the Parkchester North Condominium v. Alaska Seaboard Partners Limited Partnership  (February 22)

TORT: Markking Smalls was a passenger in a car driven by an inexperienced, unlicensed driver, who was admittedly going too fast on a dark street in the predawn hours of a rainy night. The driver made a turn that was admittedly too wide, putting the car into a skid. Yet Justice Wilma Guzman ruled that Smalls could proceed to trial with a claim that at least some of the blame for the injuries he sustained lay with the company that placed the dumpster beside the road, which Smalls’ car hit. Two of five judges on the Appellate Division panel agreed with Guzman that the company should be held to account for its possible share of fault, given that there was some evidence that the large dumpster was sticking out into the traffic lane and lacked reflectors. But the three-judge majority reversed Guzman, granting the dumpster company’s motion to dismiss the complaint. Smalls v. AJI Industries Inc. (February 22)

LABOR LAW: Justice Alison Y. Tuitt refused to dismiss a claim against New York Crane & Equipment Corp., which rented out a crane on which a construction worker was hurt. The Appellate Division, reversing Tuitt, absolved the equipment rental firm of any blame. The crane, after all, was not defective, and the rental company did not supervise the crane operator or have any on-site responsibility for the injury-producing work. Mahoney v. Turner Construction Co. (February 27)

SENTENCING: At the rape trial of Narendra Jodhan, with Justice John A. Barone presiding, the prosecutor made a number of “grossly improper” comments during cross-examination and closing arguments, including slipping in references to unsworn testimony and blatantly vouching for the evidence by telling jurors she has never seen a stronger case. Barone instructed jurors to ignore the inappropriate comments and defense counsel didn’t ask for a mistrial. In any event, as flagrant as the prosecutor’s misconduct was, it couldn’t have swayed the jury’s verdict, given the overwhelming evidence of Jodhan’s guilt, the Appellate Division concluded. But Barone’s sentence of 20 years in prison for each of the two rape charges was excessive, the appellate judges added, cutting the term for those counts to 15 years each. People v. Jodhan (February 27)

KINGS COUNTY

TORT: Justice Martin M. Solomon waded into the abortion wars with his ruling in a suit brought on behalf of Sarah Elizabeth Leighton, who was born three months premature, allegedly due to a freakish chain of events that began when her mother slipped off a defective toilet seat 10 weeks before the child was born. The mother’s suit for her own injuries had previously been dismissed on statute of limitations grounds. Solomon dismissed the child’s claim based on his interpretation of the New York Court of Appeals decision Woods v. Lancet, and the stack of cases that have stemmed from that 1951 ruling. Since Sarah was a 14-week fetus when her mother was sent to the hospital after the hard fall in a toilet stall, she would not have been viable outside of the womb and therefore had no standing to pursue a claim, Solomon reasoned. Under Lancet and its progeny, in order for injuries in utero to give rise to a cause of action on behalf of a baby, it must be viable at the time of the injury and later born alive, he concluded. The Appellate Division sorted through the same caselaw and came to a different conclusion. The crucial factor is whether the fetus injured in utero is thereafter born alive, the appellate judges said, attempting to quell the concerns of pro-choice advocates by adding that “abortion cases are generally distinguishable from the instant case, since fetuses which are aborted are not born alive.” With no dissents, the appellate panel reinstated Sarah’s suit against the city, which was allegedly responsible for the defective toilet. Leighton v. City of New York (February 20)

TORT: Justice Theodore Jones granted an employer’s motion to suppress a deposition of an injured worker on grounds that it was incomplete. The employer’s attorney had interrogated the worker about his living arrangements, work, educational history, immigration status, the events leading up to the accident, the accident itself, his alleged comparative negligence, and his personal background, including his psychiatric history, asking 280 questions in all. Then the deposition was adjourned and before it could be resumed, the worker died of unrelated caused. Later, the employer’s attorney decided he had still more questions, which he was now unable to ask, so the deposition had to be tossed. Jones obliged. Without the deposition, the worker’s estate had to drop the complaint. The Appellate Division let the deposition back into evidence. The attorney had fully explored all of the issues he insisted he wanted to know more about, and he failed to demonstrate that additional questioning would have materially helped the employer’s case, the appellate judges said. Farmer v. Nostrand Avenue Meat & Poultry (February 20)

INSURANCE LAW: In another case, Justice Jones prematurely dismissed Dmitry Kovalenko’s “serious injury” claim on grounds that it had been debunked by medical reports produced by the defense. In fact, those reports didn’t show that Kovalenko’s range of motion was comparable with what would be considered normal, said the Appellate Division, reinstating the complaint. Kovalenko v. General Elec. Capital Auto Lease, Inc.  (February 20)

TORT: Justice Michael Ambrosio, at the behest of the defense, transferred a tort suit that Willie Milom filed in Kings County to Westchester County. The Appellate Division sent it back to Brooklyn. That is where the defendant’s business, Marble Hall Apartments, is based, giving Milom a legitimate reason to file his suit there, particularly since the defense never backed up its contention that a Westchester venue would be more convenient for crucial witnesses. Milom v. Marble Hall Apartments, Inc.
 (February 20)

CONTRACT: Justice Carolyn Demarest dismissed Shifra Mendelovitz’s suit alleging a breach of a joint venture agreement, accepting the defendant’s claim that the documentary evidence, including a letter from the plaintiff herself, utterly refuted her allegations. The documents weren’t so clear cut at all, the Appellate Division said. The letter was ambiguous, at best, on the question of an agreement. It certainly didn’t conclusively establish a defense as a matter of law, said the appellate justices, reinstating the contract claim. Demarest was on sounder ground in tossing out the fraud cause of action because the alleged fraudulent act was part and parcel of the alleged breach of contract. Mendelovitz v. Cohen (February 20)

TRUSTS AND ESTATES: Justice Joseph Levine should have questioned Dawn Rumola more closely about who she is, and exactly how she is related to the parties in a potentially lucrative case in which she attempted to intervene. The Appellate Division suggested that Levine may have gotten hoodwinked. Accepting her assertion that she was the daughter of the late Anna Rumola, Levine allowed her to take over her putative mother’s role as administratrix of the estate of Joseph Sharp, the beneficiary of a wrongful death suit pending against a medical center. Dawn claimed to be Joseph’s sister. The appellate judges didn’t appear to question Dawn’s claim to be Anna’s daughter, though that “does not qualify her as the administratrix of the estate of Sharp without her receiving the latter appointment by the Surrogate's Court.” Her claim to be the sister of Sharp, however, was “utterly conclusory” and lacked any explanation of how she shares common parents. In any event, Dawn had no standing to take over administration of the estate as a representative of her mother, though she is free to come back to court and make her case again, after properly notifying others with an interest in the estate, the Appellate Division said. Rumola v. Maimonides Medical Center (February 20)

DAMAGES: In a case in which a jury found van driver Colette King 75 percent at fault for hitting jaywalker Yitzchok Twersky, Justice Bernadette Bayne chopped a $1 million pain and suffering award to $650,000 and a $460,000 award for pecuniary loss to zero. The Appellate Division noted that Twersky, who suffered multiple broken bones, collapsed lungs, and excessive internal bleeding, was conscious for two and half hours before he went into surgery and died. As compensation for the considerable pain he suffered during that period, $1 million wasn’t out of line, in the appellate judges’ estimation, nor was the award for pecuniary loss unreasonable, they concluded, reinstating the jury assessment of damages. Twersky v. Busche (February 20)

QUEENS COUNTY

REAL ESTATE CONTRACT: Justice Janice Taylor allowed 164-50 Crossbay Realty Corp. to back out of a contract to sell a commercial building for $1.2 million, after paying the jilted buyer $100,000 in liquidated damages, the amount that the contract said the seller would have to pay for “failure to close.” The Appellate Division, however, said the realty firm can’t renege on its deal that easily. The contract, after all, doesn’t explicitly say that the liquidated damages provision is the sole remedy. The would-be buyer also has a right to seek specific performance of the sales contract, the appellate judges said, reinstating a temporary restraining order to prevent the realty firm from altering the building pending a resolution of the dispute. Coizza v. 164-50 Crossbay Realty Corp. (February 20)

TORT: Justice Martin Schulman denied Dong Hee Han’s motion to dismiss a default judgment entered two years earlier by Justice Alan LeVine after Han failed to answer the complaint. In fact, the plaintiff, In Ja Kim, had delivered the summons and complaint to an address “that was never the defendant's dwelling place or usual place of abode.” So the default judgment was improperly entered in a suit that Han never knew about, the Appellate Division said. In Ja Kim v. Dong Hee Han (February 20)

TORT: In this case in a which a father stands accused of sexual abusing his child, Family Court Justice Marybeth Richroath got so fed up with the Administrator for Children’s Services and a law guardian representing a second child that she dismissed the case without completing the fact-finding hearing. The Appellate Division agreed that the administrator and guardian were responsible for repeated lengthy delays in prosecuting the case but concluded that dismissal was too harsh a sanction, particularly since there was no “willful failure” to prosecute. A judge must exert “utmost caution” in dismissing a sexual abuse case, the appellate panel said, guidance that Richroath breached. She also erred in concluding that the child witness lacked credibility even though cross-examination was not complete and redirect examination never took place, the appellate panel concluding, sending the case back to the Family Court for further proceedings before a different judge. Matter of Latanya C. v. Vaughn C.  (February 20)

NEW YORK COUNTY

INSURANCE, CLASS ACTIONS: Justice Herman Cahn properly rejected part of a proposed class action suit accusing health plans of breach of contract for allegedly letting nondoctors have too much say-so over medical decisions, the Appellate Division said. But Cahn erred in letting the angry plan members commence a class action on another cause of action, for tortious interference with contract.  With both causes of action, individual issues concerning whether particular procedures are medically necessary or not predominate over the issues that pertain to all plan members, so no part of the complaint is suitable for a class action suit, the appellate judges said. Batas v. Prudential Insurance Company of America
 (February 22)

JURORS: Justice John Cataldo botched the process of selecting a jury for the trial of Ambioris Ortiz, who was convicted of one count of bail jumping and two counts of obstructing governmental administration. Several prospective jurors said they might have trouble considering each of the three charged crimes separately. After the last of several panelists to express such doubts finished speaking, Cataldo summed up his assessment of the situation by saying, “What I’m gathering [is that] the people think it’s complicated, but they will use their best efforts.” He proceeded to reject the defense motion to excuse that particular juror for cause, without asking the woman any further questions. As the Appellate Division summed up Cataldo’s error, his “collective assessment of an entire panel is not equivalent to the personal, unequivocal assurance the court is required to elicit from the individual prospective juror.” The error was serious enough that the appellate judges were compelled to reverse the conviction entered against Ortiz on all three counts. People v. Ortiz (February 27)