In the deposition that she initially submitted with her complaint, Telfeyan admitted that she wasn’t looking at the stairs and couldn’t say why she fell. “I really don't know what happened, honestly,” she said. After hearing that, Lippmann granted the transit authority’s motion to dismiss the case. But he later allowed the plaintiff’s lawyers to reargue the case. On the second go-around, she decided that she knew exactly why she took a tumble: water, which had accumulated on a defective step, caused her to slip, she insisted.

Lippmann bought the new story, but the Appellate Division said he should have rejected the suspiciously convenient new explanation. It was “obviously prepared in support of ongoing litigation” and directly contradicted her earlier testimony, without any explanation for the discrepancy, the appellate panel noted, reversing Lippmann and granting the transit authority’s motion to dismiss the suit. Telfeyan v. City of New York (May 15)

Lippmann picked up a second reversal on the same day for another uncharacteristically pro-plaintiff ruling. He allowed Bridget Burgos to sue the company that removed snow from a transit station’s parking lot for her slip and fall on an icy sidewalk leading to a ticket kiosk. The Appellate Division concluded that the snow removal contract unambiguously covered only the paved areas where cars park and did not extend to the sidewalk where Burgos fell. Burgos v. Metro-North Commuter Railroad (May 15)

OTHER NOTABLE REVERSALS

KINGS COUNTY

NO-FAULT INSURANCE LAW: Dr. Aric Hausknecht, a board-certified psychiatrist and neurologist, has an uncanny ability to discern that auto accidents have caused a “serious injury,” even when his examination of the patient doesn’t occur until years after the accident. To be sure, trial judges who are beguiled by the doctor’s expert testimony regularly get reversed by the evidently more cynical judges of the Appellate Division. Justice Francois Rivera is the latest judge to fall into that trap. Rivera allowed Jamaris Rodriguez to bypass the no-fault insurance law and sue for an allegedly serious injury to her back, based in part on a report from Dr. Hausknecht, who asserted that the loss of range of motion in her lumbar spine stemmed from the accident. Trouble is, he didn’t examine her until nearly three years after she was allegedly injured. Given that Rodriguez offered no other admissible report of any medical examinations closer to the time of the accident, Rivera should have dismissed her claim, the Appellate Division said. Rodriguez v. Cesar (May 8)

TORT: Justice Sylvia Hinds-Radix allowed Josephine Culmone to proceed with a suit against the transit authority for injuries she sustained when a passenger boarding the bus ahead of her was allegedly ordered by the bus driver to get off, suddenly turned around and knocked her to the ground. The Appellate Division reversed Hinds-Radix and dismissed the complaint against the transit authority on grounds that the other passenger was solely to blame for the accident. Culmone v. New York City Transit Authority (May 8)

DIVORCE: As Justice Jeffrey Sunshine interpreted a prenuptial agreement, even death wouldn’t part Isaac Axel and Alida Genovese. Never mind that their marriage lasted only four years. Sunshine insisted that, pursuant to the terms of the prenup, Axel must execute a will leaving one-third of his estate to his ex-wife, Genovese. The Appellate Division took a different view of the document. The provision requiring each spouse to remember the other in their will refers to the “surviving spouse” and “deceased spouse,” which clearly means that they intended for that provision to remain in effect only as long as their marriage lasted. Since it didn’t, Axel had no obligation to write his ex-wife into his will, said the Appellate Division, reversing Sunshine and letting Axel off the hook. Genovese v. Axel (May 8)

TORT: Justice Bernadette Bayne dismissed Maria A. Guaman personal injury claim at the close of evidence, taking the case out of the jury’s hands. The Appellate Division reversed Bayne and ordered a new trial. Guaman presented evidence that the defendant “departed from the generally accepted custom in the elevator industry” by using a freight elevator to transport passengers. Under the circumstances, a reasonable juror could have concluded that the operator of the freight elevator in which Guaman was injured breached its duty to operate the lift in a safe manner, the appellate panel said. Guaman v. Industry City Management (May 8)

QUEENS COUNTY

CRIMINAL: Justice Joseph A. Grosso allowed prosecutors to go to trial with evidence seized in an illegal, warrantless search of Kasim Hernandez’s backpack. Prosecutors evidently persuaded Grosso that the search was justified by exigent circumstances. That argument didn’t pass muster with the Appellate Division. After all, when an officer rummaged through the bag and found a cell phone, the backpack was sitting on a table in an interrogation room where Hernandez was handcuffed to a chair, in no position to injure the officers or destroy evidence. Since the cell phone was crucial evidence in the trial, used to pin Hernandez to a gunpoint robbery in which the victim was relieved of his wallet and cell phone, the error was far from harmless, forcing the Appellate Division to reverse the conviction. People v. Hernandez (May 8)

BRONX COUNTY

TORT: Justice Stanley Green slashed an infamous jury verdict in a dubious police misconduct case by more than 99 percent, but the judgment was still too much for the Appellate Division to stomach. The seven plaintiffs claimed they were injured by police, and later maliciously prosecuted, for a scuffle at a labor protest during a concert at Orchard Beach in 1992. The jury, exhorted by the plaintiffs’ lawyers to “send a message” about racist police brutality, obliged the plaintiffs with an $81 million verdict. Green slashed that to $635,000. The appellate panel said he should have tossed the whole thing out of court. The plaintiffs admitted that they refused to obey an order to cease their unauthorized protest and disperse, encouraging a gathering crowd to attack the police with rocks and bottles, the appellate judges noted. Officers, therefore, were “more than justified” in their concern that the episode might escalate into a full-blown riot, and lawfully arrested the protesters, who were barely scratched in the process, the appellate judges said. Rivera v. City of New York (May 15)

TORT: Justice Lucy Billings jumped to an arguably unwarranted conclusion about who was to blame for an accident on the Grand Central Parkway. She summarily decided that Mendel Markowitz, the driver of the car that hit a minivan that had stalled in the middle lanes, was at fault. The Appellate Division concluded that there are too many unanswered questions – including when the stalled vehicle first became observable and whether Markowitz maintained a safe distance behind the vehicle in front of him — to sort out blame short of a trial. Markowitz v. Lewis (May 15)

TORT: Justice Alan J. Saks also erred in summarily deciding who was to blame for a confusing traffic accident. The drivers of the two vehicles offered sharply contrasting accounts of the mishap and their stories should be put to the test in a trial, the Appellate Division said. Myers v. Crestwood Metals Corp. (May 15)

REAL ESTATE: Justice Yvonne Gonzalez ignored compelling evidence that the Universal Church of Truth had an unwritten agreement to sell a piece of property to Julio A. Pantoja. She dismissed his complaint seeking to enforce the deal on grounds that, under the Statute of Frauds, contracts for the sale of real property must be in writing. The Appellate Division said Gonzales should have given Pantoja a break because there are grounds for equitable relief from rigid application of the statute in this case. It was undisputed that he had paid a $5,000 deposit to the church's attorney, which was never returned, and he had remained in possession of the property for three years following the alleged agreement for its sale. Under the circumstances, Gonzales should have allowed him to proceed with his suit to enforce the contract, the appellate judges said. Pantoja v. Universal Church of Truth (May 15)

NEW YORK COUNTY

LANDLORD TENANT: Justice Shirley Werner Kornreich clearly has heard quite enough about Pier 59 Studios’ beef concerning its lease of space on the Chelsea Piers, but her impatience got the better of her judgment in the latest round of the long-running legal dispute, according to the Appellate Division. Kornreich refused to let the disgruntled tenant amend its complaint to add an allegation that the landlord breached a purported post-lease agreement when it refused to sign off on the studio’s application with government authorities for permits to legalize a roof deck. Kornreich noted that in a previous round of litigation, she ruled that the Chelsea Piers management wasn’t required by the lease to approve the plans for a two-story steel and aluminum-framed structure covered with fabric. She wasn’t going to let the tenant give that dead horse another beating. In her haste to deny the tenant’s motion for leave to amend its suit, however, Kornreich considered just two items of proof purporting to show that the parties reached an understanding apart from the lease in which the landlord agreed to approve the plan. Kornreich overlooked all of the other evidence, which, in the appellate panel’s view, indicates that the tenant has a legitimate grievance and should have been allowed to amend its complaint. Pier 59 Studios, L.P. v. Chelsea Piers, L.P. (May 15)

DISCOVERY: Justice Richard B. Lowe III erred in allowing an insurance company to compel disclosure of documents that are covered by the attorney-client privilege and the work-product doctrine. The insurer’s policy holder, Deutsche Bank, was seeking indemnification for the costs of defending and settling a lawsuit. Lowe figured that in doing so, the bank waived its privilege and therefore was required to disclose communications with its lawyers concerning the lawsuit and settlement, but the Appellate Division disagreed. Deutsche Bank Trust Company of Americas v. Tri-Links Investment Trust (May 15)

CRIMINAL: Justice Renee A. White topped off convictions against Raymond Ortiz for robbery and reckless endangerment with another conviction for first-degree perjury, based on his false testimony early in the case about his identity and apartment number. The first-degree perjury account was unwarranted, the Appellate Division said. Ortiz was not contesting his identity by the time the case got to the grand jury, so his perjured testimony was not material to its investigation. Consequently, the charge on the perjury count should have been downgraded to a third-degree offense. People v. Ortiz (May 15)

LABOR LAW: Justice Richard F. Braun concluded that two words uttered by a general contractor’s worksite superintendent  — “hurry up” — were enough to drag the contractor into the lawsuit subsequently filed by James Hughes, who was injured while trying to clear a clog in a pipe used to funnel concrete to the site. The Appellate Division disagreed. Hughes was employed by a subcontractor, which controlled the conditions under which he worked and therefore was the party liable for his injuries. The general contractor exercised only general supervisory authority over the overall project. The superintendent’s exhortation didn’t change that.  In telling the workers to hurry up, he wasn’t telling them how to do their job, the appellate panel explained, reversing Braun and dismissing the claim against the general contractor. Hughes v. Tishman Construction Corp.  (May 10)

HOUSING: Justice Debra A. James erred in allowing a tenant to belatedly invoke a technicality in her bid to keep her deceased sister’s apartment in a public housing complex. The housing authority rejected her petition for tenancy as a remaining family member because she hadn’t lived in the unit for a full year, as required by law. The tenant countered that she should be exempt from that requirement because the agency failed to post notice of the one-year residency rule in each housing development’s office. James was persuaded, and annulled the housing authority’s rejection of her petition for tenancy. The Appellate Division, however, noted that the tenant did not raise the argument regarding improper posting where her case was at the administrative level and therefore should not have been allowed to raise it for the first time in James’ court. She was not in compliance with the one-year rule and therefore did not qualify as a remaining family member, and that was the end of the story, the appellate panel said. Matter of Torres v. New York City Housing Authority (May 10)

RICHMOND COUNTY
 
TORT: Justice Robert Gigante badly botched instructions to the jury in a suit brought by Edward McConville, a longshoreman injured while working on a barge, forcing the Appellate Division to toss out the judgment in the plaintiff’s favor and send the case back for a new trial. Gigante should have told jurors that the defendant can be found negligent under the Longshore and Harbor Workers' Compensation Act only in his capacity as owner of the barge, not as McConville’s employer. He also should have charged the jury on the issue of comparative negligence, since there was evidence that McConville’s own carelessness contributed to the accident. In yet another error, Gigante allowed McConville to belatedly add a claim for punitive damages, even though punitives aren’t allowed under the longshoremen’s compensation act. McConville v. Reinauer Transportation Companies, LP (May 8)