Well within the 90-day time period for initiating claims, Goodwin sent the authority notice that on Oct. 14, 2002, he fell down a set of stairs in the St. Mary's Projects, rendering him paraplegic. In a letter that was dated one day before the deadline but was not postmarked until two days later, the authority’s lawyers informed Goodwin that his notice of claim was deficient because it didn’t explain why the housing authority was to blame for his fall. Goodwin filled in the details in a letter that he sent two weeks later on Jan. 31, 2003, describing exactly where he fell and asserting that the stairs at that spot were cracked and cluttered with debris.

Goodwin wouldn’t hear anything more about problems with his notice of claim for 21 months. In the meantime, he followed up his notice of claim with a lawsuit filed that October, well within the one-year-plus-90-day period for commencing litigation. The housing authority filed its answer several weeks later, addressing the merits of Goodwin’s suit but giving no hint of what was in store. It became clear later why the housing authority chose not to tip its hand at that point, before the statute of limitations had expired.

The housing authority waited another year before unleashing a barrage against alleged procedural defects in Goodwin’s case. In a motion to dismiss filed in October of 2004, NYCHA lawyers revived the claim that the original notice was deficient and, for the first time, asserted that Goodwin’s letter in response constituted a brand-new new notice of claim that, unfortunately, was filed too late.

“NYCHA followed up its one-two punch with the knock-out contention that the plaintiff was now barred from looking for leave from the court to serve a late notice of claim because the statute of limitations had expired,” observed five judges of the Appellate Division, who couldn’t help but notice what sure looked like a mean-spirited taunt. “For good measure, NYCHA pointed out that if the plaintiff had moved for leave to file a late notice of claim before the statute of limitations expired, leave would undoubtedly have been granted by the court.”

Judge Green “agreed with NYCHA,” the appellate judges said. “We do not.” Green’s “dismissal of the plaintiff's complaint is at odds with precedent established by this Court.”

The Appellate Division has repeatedly held that “flexibility is key” in applying the municipal notice of claim statute. It is a shield to protect the city against spurious lawsuits, not a “sword to cut down honest claims.”

If Green had exhibited some flexibility in applying the law in Goodwin’s case, he would have seen that that Goodwin’s prompt follow-up letter back in January of 2003 constituted a correction of the original notice of claim, not a brand-new notice. The notice, therefore, was timely and there was no reason to dismiss Goodwin’s suit. Goodwin v. New York City Housing Authority  (May 1)

OTHER NOTABLE REVERSALS

BRONX COUNTY

TORT: Justice Lucy Billings had to skip right past some mighty compelling evidence to award Ana Ramos-German $375,000 for falling from a bus that allegedly “moved” while she was disembarking. The evidence presented at the trial established that the bus was equipped with a functioning interlock brake system that would have prevented it from rolling while the door was open. The evidence mustered by Ramos-Garcia was strikingly flimsy in comparison. She admitted that she was loaded down with packages and wasn’t looking at the stairs as she got off the bus. When she spoke with an investigator immediately after the accident, she didn’t say anything about bus movement, though that was the theory on which she attempted to pin liability on the transit authority at trial. She sold the story to Billings, but not to the Appellate Division, which found the trial evidence “devoid of proof” that the transit authority was to blame and vacated the hefty judgment. Ramos-German v. New York City Transit Authority
 (April 26)

TORT: Justice Kenneth L. Thompson set aside a $479,000 verdict that placed all the blame for a confusing traffic accident on a Con Edison truck. No one — not the drivers involved nor an eyewitness — seemed to have a clear idea exactly how the collision in a crowded intersection happened or which driver had the green light. Under the circumstances, the decision reached by a panel of jurors was as good as Thompson’s best guess, said the Appellate Division, reinstating the verdict. The damage award was not unreasonable in light of the plaintiff’s injuries, the appellate court also said. Lopez v. Consolidated Edison Co. of New York, Inc. (May 1)

TORT: Justice Janice L. Bowman picked up a reversal when the Appellate Division changed its mind on a legal issue. The court previously held that if the city workers were to blame for a defect in a sidewalk or roadway, a plaintiff can sue for injuries caused by the hazards even if the city never got written notice of the problem, a requirement that pertains to naturally occurring potholes and obstructions. The appellate court has now decided that if the defect was not immediately apparent at the conclusion of work, prior written notice is a necessary precondition of municipal liability. In this case, the roadway depression that injured Carlos Torres developed gradually as inadequately paved cobblestones became loose, and since there was no prior written notice of the problem, the city was entitled to judgment in its favor. Operating under the old rule, Bowman had upheld a verdict in favor of Torres. Torres v. City of New York  (April 26)

QUEENS COUNTY

TORT: Justice Duane Hart didn’t give the jury a chance to decide whether Mary Plate’s back injuries stemmed from an accident in which her car was rear-ended by a Palisade Film Delivery Corp. truck. He also didn’t let the jury hear from a biomechanical engineering expert whom the defense wanted to put on the stand to testify that the force of the impact wasn’t sufficient to account for her injuries. At the close of the presentation of the evidence that he saw fit to let into court, Hart concluded that it was so obvious that Palisade Film was liable for the full extent of Plate’s injuries that there was nothing for the jury to talk about. He ruled in favor of Plate as a matter of law, and awarded her $2 million in damages. In fact, jurors might have seen things quite differently, if they had been presented with the whole story, the Appellate Division said. After all, Plate had previously injured her back in an accident and had had spinal surgery twice, most recently in the year before she was rear-ended by the Palisade Film truck. Under the circumstances, the defendant had every right to call an expert to the stand to testify that the accident in question had exacerbated a preexisting injury. “The jury could have rationally found in favor of the [defendant] on the issues of causation and serious injury,” the Appellate Division said, tossing out Hart’s judgment and sending the parties back to square one. Plate v. Palisade Film Delivery Corp. (April 24)

TORT: Justice David Elliot dismissed a complaint against truck driver Christine B. Koch-Strobel, who coasted through an intersection off an exit ramp from the Grand Central Parkway and struck the front end of a car, which she never saw, hard enough to spin it around. Koch-Strobel evidently had a green light, which is why Elliot dismissed the suit filed against her by Vincenzo Nuziale, the driver of the car. But even if Koch-Strobel had the right of way, the Appellate Division observed, “she was not authorized to blindly and wantonly enter the intersection.” Before jumping to conclusions about who was to blame for the collision, Elliot should have determined whether Koch-Strobel could have slowed down or kept a more careful lookout, the appellate panel said, reinstating the complaint. Nuziale v. Paper Transport of Green Bay Inc. (April 24)

TORT: Justice Christoper Mega granted the education department’s motion to dismiss a personal injury suit – a little too hastily, in the Appellate Division’s opinion. The plaintiffs never had a chance to examine documents in the defendants’ possession that appeared to support their case, the appellate judges explained. Banks v. New York City Department of Education (April 24)

CRIMINAL: Justice Ronald Hollie erroneously granted Kevin Oliver’s motion to suppress evidence that police found in a search of his backpack. The Appellate Division concluded that Oliver abandoned the bag in a Chinese takeout restaurant when police called him outside to talk. He admitted that he told someone inside the restaurant that police intended to search him, making it clear to the Appellate Division, if not to Hollie, that ditching the bag was a calculated ploy to avoid a search. When he purposely abandoned the backpack in a crowded restaurant, he gave up his right to claim that it was private, the appellate panel said, reversing Hollie and giving prosecutors a green light to use its contents against Oliver in court. People v. Oliver (April 24)

CRIMINAL: Justice Stephen Knopf approved Mark Edwards’ guilty plea in a case that even prosecutors conceded on appeal was jurisdictionally defective. The charge of attempted robbery to which he pleaded guilty involved a victim other than the two victims named in the felony complaint that was presented to the grand jury, the Appellate Division noted, reversing Edwards’ conviction. People v. Edwards  (April 24)

NEW YORK COUNTY

CRIMINAL: Justice John Cataldo kept an admittedly biased juror on the panel that found Donald O'Toole guilty of robbery, forcing the Appellate Division to throw out the conviction. During jury selection, the prospective juror revealed that she had been assaulted in her apartment 20 years earlier and she could not give assurances that it would not affect her deliberations. Cataldo denied the defense attorney’s challenge for cause. He didn’t even let the attorney ask the juror further questions to ascertain whether she could set aside her bias. That was clear-cut reversible error on Cataldo’s part, the unanimous appellate panel said. People v. O'Toole (April 26)

IMMUNITY:  Justice Shirley Werner Kornreich erred in allowing parents who were wrongly accused of sexually abusing their child to sue the Administration for Children's Services and one of its caseworkers for negligent infliction of emotional distress. To be sure, the caseworker’s actions leading to the removal of the plaintiffs' son “were far from exemplary,” the Appellate Division conceded, without going into detail. But she was presented with serious allegations of child sexual abuse that were seemingly confirmed by the child, and under those circumstances, the caseworker’s actions didn’t amount to full-blown bad faith. Consequently, the worker and agency were covered by the immunity provision in the Social Services Law, the appellate panel concluded. Kornreich properly dismissed another part of the parents’ claim accusing the defendants of defamation. As the judge correctly concluded, the allegedly defamatory statements were made solely in a Family Court petition and thus were entitled to absolute judicial immunity. Carossia v. City of New York (April 26)

CIVIL PROCEDURE: A lawyer for the Joy Construction Corp. evidently misplaced some papers and consequently missed a deadline. Justice Richard B. Lowe III made the company pay a heavy price, entering a default judgment of nearly $700,000 in favor of the plaintiff. The Appellate Division put a smile back on Joy’s face, vacating Lowe’s default judgment on grounds that the company appears to have a meritorious defense, the missed deadline was due to excusable “law office failure” and the plaintiff won’t be at any disadvantage if the case is put back on track. Mutual Marine Office, Inc. v. Joy Construction Corp. (April 26)

KINGS COUNTY

MEDICAL MALPRACTICE: Justice Marsha Steinhardt hammered plaintiff Susie Goldstein for discovery violations, imposing the harsh penalty of striking her pleading. In fact, Goldstein had numerous sensible questions about the defendant’s discovery demands and there was nothing willful or contumacious about her delay in complying, the Appellate Division said.  Goldstein v. Kingsbrook Jewish Medical Center (April 24)

EMPLOYMENT: Justice Lewis Douglass should have dismissed Patricia A. Johnson’s claim that she was terminated from her job at NYU Hospital because of her race and sex. The hospital had legitimate reasons for terminating her, reasons that had nothing to do with her race or sex, said the Appellate Division, reversing Douglass and dismissing Johnson’s suit. Johnson v. NYU Hospitals Center (April 24)

LABOR LAW: Justice Jane S. Solomon bought the city’s argument that it was not the “owner” of a trench that collapsed on a worker named Angel Romero, which barred him from suing the city under the Labor Law provision covering demolition and excavation work. In fact, the city owned the land where the subcontractor that employed Romero dug the trench, so the city can’t dodge its responsibility for the accident, the Appellate Division said. The Labor Law provision in question imposes a “nondelegable duty upon owners and general contractors to provide reasonable and adequate protection and safety to persons employed in construction, excavation, or demolition work, regardless of the absence of control, supervision, or direction of the work,” the appellate court explained, reversing Solomon and reinstating  Romero’s suit against the city. Romero v. J & S Simcha, Inc. (April 24)

TORT: Justice Laura Jacobson erred in allowing Albert Lloyd Shephard to proceed with a suit against the city for injuries he sustained when he was hit by a police car responding to an emergency call. In such circumstances, the city can be sued only if the police officers' conduct rises to the level of reckless disregard for the safety of others. Shephard made no such showing in this case, so Jacobson should have dismissed his suit, the Appellate Division said. Shephard v. City of New York (April 24)

TORT: Justice Howard Ruditzky gave procrastinating plaintiffs a break they didn’t deserve. They acknowledged that they made no attempt to serve the defendants with their lawsuit within 120 days of filing of the summons and complaint, as required. They didn’t bother requesting an extension of time until the defendants raised the defense of untimely service. In light of their “pattern of an extreme lack of diligence,” instead of granting them leave to belatedly serve the lawsuit, Ruditzky should have booted their case out of court, the Appellate Division said. Valentin v. Zaltsman (April 24)

CRIMINAL: Justice Robert Collini improperly punished John Nuniz for moving to withdraw his guilty plea. After rejecting the motion, Collini tacked on two years onto the sentence that had been agreed upon at the time of the plea. The Appellate Division took that extra time off Nuniz’s sentence for attempted murder, assault and other convictions, restoring the 13-year prison term called for in the plea agreement. People v. Nuniz (April 24)

RICHMOND COUNTY

INSURANCE: Justice Anthony Giacobbe decided that the Nautilus Insurance Company must defend and indemnify its policyholder, the Staten Island Molesi Social Club, for personal injuries inflicted by a driver who evidently got drunk at the club. The judge rebuffed the insurer’s argument that in light of the clear-cut liquor liability exclusion in the policy, it should be off the hook in the case. Giacobbe agreed with the club that the exclusion does not apply to casual, nonrecurring consumption of alcohol, which is evidently what happened in this case. The club’s rules, after all, prohibit distribution of alcoholic beverages on the premises. The Appellate Division agreed that the club might have a viable defense against the exclusion. But in light of the conflicting stories about exactly what happened in the hours leading to the accident in question, it was premature for Giacobbe to conclude, on the club’s cross motion for summary judgment, that the insurer must come to the club’s defense. Staten Island Molesi Social Club, Inc. v. Nautilus Insurance Co. (April 24)