Knipel denied the lawyers' motion to dismiss Cohen’s claims against them, leaving it to the Appellate Division to put an end to it. A unanimous appellate panel concluded that the law firm, Wallace & Minchenberg, can’t be held accountable for failing to vigorously prosecute the personal injury actions because they had no chance of succeeding. The evidence they produced in support of Cohen’s claims stemming from the first three accidents failed to show that the elevator maintenance companies were aware of problems but let them go unfixed, the appellate judges observed, reversing Knipel and dismissing Cohen’s claims related to those cases.

Cohen’s malpractice claim stemming from the fourth alleged accident was filed against the law firm long after the three-year statute of limitations had expired. Knipel should have dismissed that claim on that account, the Appellate Division said. Cohen v. Wallace & Minchenberg (April 17)

OTHER NOTABLE REVERSALS

BRONX COUNTY

TORT: Cornelius Jennings couldn’t remember exactly how it happened that he injured himself while getting out of an elevator that apparently got stuck between floors, but Justice Norma Ruiz let him proceed anyway with a suit for damages against the owner and manager of the building. Ruiz did dismiss Jennings’ claims against the company that occasionally repaired the elevator but had no ongoing maintenance contract. She also properly denied Jennings’ eve-of-trial motion to amend the pleading to change his explanation about how he got hurt. Ruiz should have dismissed the entire claim, the Appellate Division said. Jennings’ own expert neurologist acknowledged that his recollection of the events “may not be reliable,” but other witnesses were clear about what happened. Jennings, who was drunk, complained that he was hot, forced the door open and tried to climb out, though there was no emergency and help was on the way. Even if the defendants’ negligence caused the elevator to get stuck, Jennings’ reckless response was not a foreseeable consequence, the appellate panel said. Jennings v. 1704 Realty, L.L.C. (April 24)

TORT: Regla Lopez blamed her landlord for a disgusting mishap early morning when she got out of bed and immediately slipped and fell on excrement that had floated across the floor from her backed up toilet. Her theory about why the landlord should be held accountable made sense to Justice Alexander W. Hunter, who denied a defense motion to dismiss, but not to the Appellate Division. Testimony from the building’s repairman and an engineer established that there were no building-wide plumbing problems. Lopez’s claim to the contrary was based on an affidavit from an engineer who didn’t examine the apartment building, and from another tenant with an unrelated plumbing issue. A clog in her own toilet was the only reasonable explanation, and there was no evidence that the landlord was aware of any persistent problems with the appliance, the appellate panel said in dismissing Lopez’s complaint. Lopez v. Crotona Avenue Associates, LP (April 24)

TORT: Justice John A. Barone allowed Jorge Monmasterio to belatedly switch theories about why the housing authority should be held liable for an assault outside a public apartment complex. That left the authority at an unfair disadvantage in defending itself, said the Appellate Division, which reversed Barone and dismissed Monmasterio’s lawsuit. The plaintiff’s notice of claim pinned the blame on poor lighting, but he later decided that a shortage of security personnel accounted for the attack. That is distinctly new theory of liability that the notice of claim left the housing authority unprepared to defend against, the appellate panel said. Monmasterio v. New York City Housing Authority (April 19)

NO-FAULT INSURANCE LAW: Justice Betty Owen Stinson refused to consider the results of an MRI exam that Tandra Engles’ produced in support of her claim that she suffered a serious knee injury. The MRI report was unsworn, which ordinarily might have justified Stinson’s decision to overlook it. But the defendants' own expert orthopedist had reviewed the report in forming his opinion, so Stinson should have considered it, said the Appellate Division, reinstating the complaint. Engles v. Claude (April 19)

MEDICAID: Justice Patricia Anne Williams ruled that since the parents of a child with Down’s Syndrome are getting government aid for the disability, they can’t pursue a suit for damages against parties that may bear responsibility for the extraordinary costs they face. Williams’ reasoning didn’t pass muster with the Appellate Division. The cost of caring for the child shouldn’t be borne by the public when a judgment may be recovered against a culpable tortfeasor, the appellate judges said. Besides, some treatments and equipment that the child will need aren’t covered by Medicaid, so Williams erred in barring the parents from suing for damages. Mercado v. Institute for Urban Family Health (April 24)

TORT: Justice Paul A. Victor erred in allowing Elsa Delgado to file a notice of claim nearly nine months late for a slip and fall on wet steps inside the Bronx County Criminal Courthouse. She had, in fact, served a timely notice, but on the wrong party, the state attorney general's office. That did not suffice to let the city know it might get sued and should begin preparing a defense, nor did the Fire Department’s ambulance report, said the Appellate Division, reversing Victor’s ruling and dismissing the Delgado’s suit. Delgado v. City of New York (April 24)

NEW YORK COUNTY

EMPLOYMENT: Justice Emily Jane Goodman correctly let Kristin Polidori proceed with a sexual harassment claim against SG Americas Securities, the stock brokerage where she used to work, but Goodman should have dismissed a second cause of action claiming that she was forced out of her job by the hostile atmosphere, the Appellate Division said. The company fired the alleged harasser as soon as Polidari made a formal complaint. But in light of her allegations of pervasive sexual harassment in the workplace, that doesn’t preclude her from proceeding with a suit blaming the company for encouraging or condoning the conduct in the first place, Goodman and the appellate panel agreed. However, since the alleged harasser was gone and the brokerage offered Polidari reasonable options for returning to work, she has no grounds for alleging that she was constructively discharged, the Appellate Division said, reversing Goodman on that point. Polidori v. Societe Generale Groupe (April 24)

LANDLORD TENANT: Justice Goodman was recently reversed in another case in which she sided with the Martha Graham Center of Contemporary Dance in a dispute with its landlord. Goodman agreed with the center that it had a right to stop paying rent because it was effectively forced out of the building in August of 2005 by renovations undertaken by the owner. The Appellate Division, however, said the center didn’t offer enough specific evidence of intolerable conditions to warrant a summary judgment on is claim for constructive eviction, and remanded the case for further proceedings. NYC Goetz Realty Corp. v. Martha Graham Center of Contemporary Dance (April 19)

DISCOVERY: Justice Jane S. Solomon punished William Dietrick too harshly for failing to make himself available for a deposition by the deadline she set. Solomon issued an order of preclusion, barring him from testifying. The Appellate Division vacated the order on grounds that Dietrick offered a reasonable excuse and did not willfully thumb his nose at Goodman’s deadline. Dietrick v. Gutman (April 24)

TORT: Justice Mary Ann Brigantti-Hughes allowed Rose Davies to proceed with a suit against the city on a complaint that was too skimpy to pass muster with the Appellate Division. The floor on which she slipped was “shiny,” Davies complained. Without more, that does not permit an inference of negligent waxing, said the appellate panel in dismissing the complaint. Davies v. City of New York (April 24)

SENTENCING: Justice Marcy L. Kahn seems to have stepped into some sort of time warp when she sentenced Harry Vallevaleix for a burglary committed in 2001. She declared that he was a second felony offender when he committed that crime, and enhanced his sentencing accordingly. Trouble is, that “prior” felony that earned him the distinction as a second-time offender didn’t happen until a year later, said the Appellate Division, vacating the sentence on that count and remanded the case to the trial court for resentencing. People v. Vallevaleix (April 19)

SENTENCING: For the third time this year, Justice Edward J. McLaughlin was reversed for refusing to resentence a drug offender under the Drug Law Reform Act of 2004. Nemencio Franco is serving a sentence for an A-I drug felony, and therefore, contrary to what McLaughlin seems to think, he is entitled to have the sentence that was originally imposed for the crime reconsidered under the more lenient law, the Appellate Division said. As it has in each of its three previous reversals of McLaughlin so far this year on the same issue, the appellate panel rejected the defendant’s request to send the case back to a different judge. McLaughlin. People v. Franco (April 19)

PREEMPTION: Justice Martin Shulman intruded on federal turf when he ruled against a union local’s annoying protest tactics. Shulman granted a preliminary injunction restraining the union from continuing to engage in loud drumming outside the Empire State Building, a stunt intended to draw the attention of passersby to handbills that union members were handing out. As a state judge, said the Appellate Division, Shulman had no jurisdiction to step into that dispute because the union’s activities are governed by federal labor law. In fact, a federal administrative ruling has already recognized the union's right to engage in the drumming that Shulman sought to enjoin. Helmsley-Spear, Inc. v. Fishman (April 19)

FAMILY: Justice Laura Visitacion-Lewis correctly concluded that a mother identified as Lucy D. neglected her children and that they should be placed with the Administration for Children's Services for a year. But the record did not support the judge’s determination that unsupervised visitation would be detrimental to the children, said the Appellate Division, which deleted provisions in the order requiring that Lucy be accompanied by a monitor every time she sees them. Matter of Alexander S. v. Lucy D. (April 19)

MEDICAL MALPRACTICE: Justice Alice Schlesinger allowed the estate of Leonarda Pichardo to proceed with a malpractice suit against a city hospital. But according to the Appellate Division, there was no evidence that doctors in the emergency room where the patient was treated should have done anything differently. His vital signs were normal, the standard physical examination turned up nothing, and the patient’s complaints about musculoskeletal ailments gave no reasons to look further, said the appellate panel, reversing Schlesinger and summarily dismissing the suit. Perez v. New York City Health and Hospitals Corp. (April 19)

KINGS COUNTY

LANDLORD TENANT: Justice Yvonne Lewis, who is regularly reversed for denying motions to dismiss flimsy tort suits, was reversed again in a case with a different twist. Lewis agreed with a landlord that a signature on a lease was forged and on that basis, despite the absence of testimony from a handwriting expert, summarily dismissed the plaintiff’s suit seeking a declaration that it has a valid tenancy. The Appellate Division saw no evidence of any such forgery. The handwriting examples submitted by the defendants “are not sufficiently different from the alleged forgery” to call the validity of the lease into doubt, the appellate panel said, granting a summary judgment in favor of the plaintiff. Acme American Repairs, Inc. v. Uretsky (April 17)

ATTORNEY’S FEES: Justice Howard Ruditzky shortchanged a law firm that represented a plaintiff in a successful personal injury suit against the Board of Education. He awarded, as the Appellate Division characterized it, “only” $8,333.33 in legal fees to Talisman, Rudin & DeLorenz for representing Giuseppe Calabro in his suit. In calculating the fee, Ruditzky “failed to determine what proportion of the work in this matter was actually performed” by the law firm, the appellate panel said, remanding the case for a new hearing to determine what the law firm should get for its work on the case. Calabro v. Board of Education of City of New York (April 17)

FAMILY: Justice Paula Hepner appeared to elevate procedure over substance in awarding custody of a child to the mother “based solely on the fact that the father did not file his own custody petition, as did the mother,” the Appellate Division complained. Hepner didn’t bother to conduct a hearing to determine the best interests of the child, nor did she look into allegations that the mother wasn’t giving the child proper care and attention, or that the mother has alienated the child from the father. Hepner must hold an evidentiary hearing before deciding who should get custody, said the appellate panel, which vacated the custody order and sent the matter back to Hepner’s court for further proceedings. Matter of Ling Da Chen v. Yue Hua Zhou  (April 17)

NO-FAULT INSURANCE: Justice Mark Partnow erred in refusing to dismiss a “serious injury” claim. The plaintiff, Haydee Phillips, had no answer for the evidence produced by the defendant’s experts that her spinal injury was due to a degenerative condition, not the auto accident that she blamed for her problem. She also had no explanation for a 15-month gap in treatment. The oft-reversed judge let her proceed with her suit anyway, earning yet another reversal in the process. Phillips v. Zilinsky
 (April 17)

NO-FAULT INSURANCE: Justice Laura Jacobson was also reversed by the Appellate Division for giving a pass to a dubious “serious injury” claim. The plaintiff, Kenneth Waring, went five years between visits to the doctor for the supposedly crippling injury to his back, and had no good explanation for the long gap in treatments, a red flag that warranted dismissal of the case, according to the appellate panel. Waring v. Guirguis (April 17)

TORT: Justice Sylvia Hinds-Radix allowed Margerette Casias to belatedly file a claim against the city, even though Casias offered no reasonable explanation for her delay. She said she didn’t think she could file a claim against the city for her broken wrist while she was receiving workers compensation benefits. In fact, that’s not the case. Her ignorance of the law on that point is no excuse, said the Appellate Division, rejecting her late claim. Casias v. City of New York  (April 17)

SENTENCING: Justice Deborah Dowling erred in imposing consecutive sentences on convictions entered against Maciej Kowalewski for criminal possession of a weapon and manslaughter. The Appellate Division ordered Dowling to impose a new sentence with the terms for the two crimes running concurrently. People v. Kowalewski  (April 17)
   
QUEENS COUNTY

INSURANCE: For the third time this year, Justice Jaime Rios was reversed for bending over backwards on behalf of a plaintiff with a dubious uninsured motorist claim. In this case, Rios allowed Keon Russell to hitch his claim to his father’s sister’s insurance policy, even though neither he nor his father lived with the policyholder. Keon’s father, Donovan, was in fact listed on the policy as an additional insured, but only under the provision covering death, dismemberment or loss of sight. That limited coverage clearly didn’t give Donovan the “full panoply of benefits,” and it most certainly didn’t extend uninsured motorist coverage to his son, said the Appellate Division, reversing Rios and dismissing Russell’s claim. Matter of State Farm Mutual Automobile Insurance Co. v. Russell (April 17)

INSURANCE: Justice Augustus Agate allowed a cooperative to jump the gun with a suit seeking a declaration of its right to recover from an insurer for damages that have yet to be ascertained. The action stemmed from a contract between the cooperative building and Nextel, permitting the telecom company to install equipment on the roof on the condition that it obtain insurance to cover any damage. The building’s managers, blaming Nextel’s negligent installation of the equipment for water leakage through the roof, sued the insurance company. As the Appellate Division noted, however, it has not yet been determined whether Nextel is at fault. That issue is being hashed out in a separate proceeding. In the meantime, Agate should have set aside the insurance claim. 87-10 51st Avenue Owners Corp. v. Steadfast Insurance Co. (April 17)

TORT: Justice David Elliot kept a contractor on the hook for a break in a water main, even though the contractor proved that it worked on a different, newer pipe which was a considerable distance from the pipe that broke. Elliot should have given the contractor a break and released it from the lawsuit, the Appellate Division said. Hatzioannides v. City of New York (April 17)

MEDICAL MALPRACTICE: Justice Duane Hart erred in striking a cardiologist’s answer in a medical malpractice case as punishment for his destruction of records that the plaintiff said were crucial evidence in the case. The Appellate Division reversed on grounds that Hart hadn’t looked carefully enough at the circumstances to fairly conclude that such a harsh sanction was warranted. It’s not clear whether the cardiologist, Barry J. Bellovin, was responsible for the loss of the medical records, or whether he was aware they were needed in the litigation. Those are prerequisites for imposition of the ultimate sanction of striking a defendant’s answer. Hart must conduct a hearing to resolve those questions before deciding what to do about the loss of the records, the Appellate Division said. Haviv v. Bellovin (April 17)

TORT: Justice Janice Taylor gave a pass to what the Appellate Division characterized as a “patently meritless” claim asserting that the housing authority is liable for a rape. The notice of claim wasn’t even filed on time, yet Taylor let the would-be plaintiff file a late claim. The alleged victim said she was dragged from a bus stop into a vacant housing authority building, where the rape took place. As the appellate panel pointed out, however, the agency’s duty to protect against crime by street predators is limited to begin with, and it certainly doesn’t to members of the public who aren’t even tenants. Thus, even if it had been filed on the time, this complaint should have been dismissed. Matter of Brown v. New York City Housing Authority (April 17)
 
TORT: Justice Arnold Price erred in dismissing a personal injury suit filed against a hostess by her houseguest, who probably won’t be returning for a visit any time soon. The plaintiff, Basya Pollack, was staying overnight in the home of Ahuva Nicole Klein, who allegedly led her down a dark hallway, causing her to fall through an open door, down a set of concrete steps into the basement. In light of Pollack’s allegations that Klein failed to illuminate the area, close the basement door or to take any steps to warn her of the danger, “the case should have been submitted to the jury for resolution rather than being disposed of as a matter of law,” the Appellate Division concluded. Pollack v. Klein  (April 17)