Boyle was injured when he was struck by a steel bar that fell through an elevator shaft where he was working. It was in the process of being bolted into place by workers two floors higher when it came loose and fell on him. The falling steel posed an elevation-related risk, the majority concluded. And “additional bolts” that would have prevented the bar from coming loose constituted a safety device for which, under the Scarrold Law, the employer may be sued for having failed to provide. Boyle v. 42nd Street Development Project, Inc. (March 27)

OTHER NOTABLE REVERSALS

RICHMOND COUNTY

REAL ESTATE: When a homebuilder goofed and placed the entrance steps to a home it had just built a few feet onto the neighbor’s parcel, Justice Philip Minardo offered a quick fix. He agreed to “reform the deed,” shifting the property line, and with a few strokes of a drafting pencil, eliminating the encroachment. That fix was a little too quick for Robert and Joanne Brigandi, who owned the parcel that Minardo snipped, and it also didn’t pass muster with the Appellate Division. Reformation is an appropriate remedy when a mutual mistake results in a misplaced property line, or when a mistake on a deed is attributable to fraud. In this case, however, there was nothing mutual about the encroachment, and Minardo shouldn’t have let the developer simply “reform” its way out of its careless mistake. M.S.B. Development Co., Inc. v. Lopes (March 20)

FAMILY: Justice Ralph Porzio erred in failing to properly advise Randy Brown of his right to counsel before denying his petition for custody, or alternatively, for unsupervised visitation with his children, the Appellate Division said. Matter of Brown v. Wood (March 20)

BRONX COUNTY

CRIMINAL: Justice Harold Silverman was reversed for submitting a count for “depraved indifference” murder to the jury deciding the fate of Santos Suarez, who stabbed the mother of his infant daughter in the throat, chest and abdomen after a heated argument in the apartment they shared. Silverman can hardly be faulted for not getting it right. That particular category of murder has often been charged in similar cases involving abrupt, vicious attacks, and Suarez’s conviction on that count was affirmed by the Appellate Division in 2004. But the case was subsequently taken up to the Court of Appeals, which directed the lower appellate court to reverse the conviction. The high court, in the process, clarified the circumstances under which a defendant can be charged with second-degree depraved indifference murder. To begin with, it is rarely appropriate in the case of a one-on-one attack, the Court of Appeals said, setting both Silverman and the Appellate Division straight. People v. Suarez (March 27)

TORT: All of the convincing evidence, including the fire marshal’s report, indicated that the fire in Sherell Butler-Francis’s apartment started in the electrical wire powering her clothes dryer, which was pinched between the dryer and a stove and was buried under a pile of clothes. But Justice Alan J. Saks allowed Butler-Francis to proceed to trial on the dubious theory that a faulty gas line in the Housing Authority building was to blame. In the absence of any evidence that there had ever been a problem with the gas line, or that an explosive gas fire caused the damage, Saks should have dismissed the claim, the Appellate Division said. Butler-Francis v. New York City Housing Authority (March 27)

TORT: Wrongly rejecting a reasonable excuse for Carmen Morales’s delay in proceeding with a suit for the injuries she sustained when the ceiling of her apartment collapsed on her, Justice Howard R. Silver denied the plaintiff’s motion to restore the case to the trial calendar when he should have granted it. The defendant’s insurance provider had been on the brink of insolvency and was in rehabilitation for much of the time that the proceedings were stalled, and Morales shouldn’t be blamed for that, the Appellate Division said. Her lawyer evidently was responsible for another unexplained period of delay. But a client shouldn’t be deprived of her day in court because of her attorney’s neglect of the case, the appellate panel noted, especially since the defendant gave no indication that it was disadvantaged by the delay. Silver may have been swayed by the fact that Morales already had a “day in court,” pocketing $85,000 to settle a suit for a slip and fall in a puddle in her ill-fated apartment two years after the alleged ceiling collapse. That accident, she said, exacerbated the injuries inflicted in the earlier incident. The release she signed to settle the second claim clearly covered that claim only, the appellate panel noted. It will preclude her from collecting a second time for damages after her slip in the puddle, but not for damages rung up in the two-year period between the two accidents. Morales v. Solomon Management Co., LLC  (March 22)

VENUE: Justice Sallie Manzanet kept a lawsuit in the Bronx that she should have transferred, at the insurer’s request, to Suffolk County, where the insurer has its principal place of business, the Appellate Division said. Cruz v. Taino Construction Corp. (March 22)

NEW YORK COUNTY

EMPLOYMENT: Donald Levy quit his job as a property manager with Lawrence Properties to join a rival, Brown Harris Stevens. One day later, the board of directors of 50 Sutton Place notified Lawrence that they were following their long-time manager, Levy, to his new firm. Justice Marylin G. Diamond, seeing no violation of the non-compete agreement that barred Levy from soliciting Lawrence’s clients for a year after leaving his job, dismissed Lawrence’s suit against Levy and his new employer. The Appellate Division begged to differ. The situation is somewhat murky, to be sure, since Levy was the manager of 50 Sutton Place even before he joined the Lawrence firm. But it is not a dispute that can be resolved on a motion for summary judgment, said the appellate panel, reversing Diamond and sending the case to trial. Lawrence Properties Inc. v. Brown Harris Stevens Residential Management LLC (March 22)

FAMILY: Family Court Justice Sara P. Schechter nixed an adoptive boy named Keenan’s quest to locate and visit his sisters, on grounds that he had no relationship with them. Schechter should have considered why the siblings lost contact in the first place, the Appellate Division said in reversing her denial of the boy’s visitation petition. The appellate panel told Schechter to reconsider the matter, taking into account the possibility that the respective adoptive parents of the separated siblings may have frustrated their efforts to stay in touch. To use that as an excuse to keep them apart would be needlessly cruel, the appellate panel suggested. Matter of Keenan R. v. Julie L. (March 27)

EVIDENCE: Justice Alice Schlesinger didn’t see why Lt. Kieran Crowe, a police officer facing disciplinary charges, shouldn’t be able to get his hands on the disciplinary records of two officers he had supervised who are now his chief accusers. The Appellate Division invoked the collateral evidence rule to reverse Schlesinger and block disclosure of the confidential reports. Crowe already knows that his accusers have been disciplined for misconduct, and he will be free to cross-examine them about that. But he can’t use material from their files to turn the case against him into free-for-all over their prior disciplinary infractions, the Appellate Division said. Matter of Crowe v. Kelly (March 27)

EXPERTS: Justice Leland DeGrasse should have given the plaintiff a break when the expert witness it intended to call got sick on the eve of trial. Instead, DeGrasse rejected the plaintiff’s replacement witness, for failing to give the defendant the requisite advance notice, earning himself a reversal in the process. Since the plaintiff’s failure to comply with the notice requirement was neither willful nor prejudicial to the defendant, DeGrasse should have let the new expert in, the Appellate Division said. Tan Holding Corp. v. Bahra Group, Inc. (March 22)

TORT: Justice Robert D. Lippmann held Disano Construction Co. to account for Estelle Melcher’s slip and fall on the north side of 49th Street between Madison and Fifth, even though all the evidence indicated that the company’s concrete replacement work on that particular block had occurred on the south side of the street. Reversing Lippman, the Appellate Division dismissed Melcher’s claim against Disano. Melcher v. City of New York (March 22)

KINGS COUNTY

TORT: Justice Laura Jacobson, in effect, held a landlord and the firm that the landlord hired to keep its lobby tidy accountable for the weather. Jacobson let Barbara Rogers proceed to trial against the two defendants for her slip and fall in the wet lobby on a rainy day. The mishap that occurred soon after the rain started wasn’t the defendants’ fault, the Appellate Division noted. Landlords are under no obligation to provide a constant remedy to the problem of water being tracked into a lobby in rainy weather, the appellate judges explained. Rogers v. Rockefeller Group International Inc. (March 20)

NO-FAULT INSURANCE: Justice Martin Schneier accepted unaffirmed submissions from Pierre Borgella’s doctors as proof that the plaintiff suffered a serious injury. Schneier should have rejected the evidence and dismissed the complaint, the Appellate Division said. Borgella v. D & L Taxi  (March 20)

SEX OFFENDERS: Justice Louis Marrero, now deceased, erred in treating a youthful offender adjudication as a prior felony conviction for the purpose of determining the appropriate risk level for sex offender Franklin Cruz. A youthful offense can be taken into consideration when assessing the likelihood that a sex offender will commit a new offense, but the Criminal Procedure Law explicitly states that a youthful offender adjudication does not count as a criminal conviction, the Appellate Division said. People v. Cruz  (March 20)

QUEENS COUNTY

TORT: Michael McDonald launched two separate actions, casting blame at alternative culprits, for the injuries he sustained when he lost control of his motorcycle on 21st Street in Queens. Justice Orin Kitzes made the wrong call in both suits, according to the Appellate Division. Kitzes allowed McDonald to proceed to trial against three companies that allegedly had worked on the street at the site of the accident. The judge should have dismissed the claim against all three because the evidence presented by the companies showed that they didn’t create any defect in the road where McDonald crashed his bike. McDonald’s claim that they were to blame was based on “speculation and surmise,” the appellate panel said. McDonald v. Mauss

Kitzes, meanwhile, dismissed a claim against another defendant, Eric Mauss, the driver of a car that made a left turn in front of the motorcyclist. That’s the suit that Kitzes should have allowed to go to trial, the appellate panel said. The evidence raised a question as to whether Mauss’s left turn was unsafe, and his claim that McDonald was speeding was “speculative at best,” said the appellate panel, reversing Kitzes in that action, as well as in the first. McDonald v. Mauss (March 20)