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NEGLIGENT ROAD-ASIDE
By Mark Thompson
Posted 05-25-07
For a moment on a warm August night in 2000, it looked like a taxi driver and a motorist who was changing a tire would come to blows on Seventh Avenue in midtown Manhattan. The taxi driver sped away in time to avert a potential altercation with the motorist. In doing so, he set the stage for a subsequent spat — among the five judges on the Appellate Division, three of whom voted to reverse Bronx County Justice Alan J. Saks for his handling of the case. The jury empaneled for the trial called for a $450,000 judgment in favor of Troy Hazel, the motorist who was changing a tire when a taxi driven by Kristaq Nika ran over a reflective marker that he had placed in the street to alert approaching drivers. What happened next was hotly disputed at the trial.
SICK TRANSIT
By Mark Thompson
Posted 05-18-07
Manhattan Justice Robert D. Lippmann ordinarily is no softie on suits against transit authorities. He has been reversed five times in the last six months for rulings that, according to the Appellate Division, were unfair to plaintiffs allegedly injured while using public transportation. Sometimes, it seems, his rulings against plaintiffs have been downright knee-jerk. For instance, Lippmann’s ruling summarily dismissing Susan Alexander’s suit for the tumble she took in a subway stairwell was “devoid of any analysis,” the appellate judges said late last year. In the total of eight reversals that Lippmann has received so far this year, only one was for a ruling that favored the plaintiff. All of which makes his handling of the suit filed by Laurel Telfeyan that much more curious. Lippmann allowed Telfeyan to craft a new story about how she slipped and fell in a subway stairwell, and on the basis of her dramatically revised account, he reversed his earlier dismissal of her suit.
PROSECUTORS’ PAL
By Mark Thompson
Posted 05-11-07
Queens County Justice Arthur Cooperman, who has had criminal judgments corrected three times since November, picked up an outright reversal on the first of this month for letting a rogue prosecutor set up a flagrantly unfair ambush of a defense attorney in a murder trial. The prosecutor in the case, Claude Nelson Stuart, was subsequently suspended from the practice of law for three years by a 2005 ruling of the Appellate Division for lying to another judge about the whereabouts of a witness in a murder trial. Cooperman was untroubled by Stuart’s conduct in the case in his court. Cooperman’s prosecution-friendly stance in the case appears to lend credence to both fans and detractors of the veteran jurist, who will be under intense scrutiny in coming months as he presides over the manslaughter trial of the three police officers involved in the shooting of Sean Bell outside a Queens strip club last November.
TAG TEAM INJUSTICE
By Mark Thompson
Posted 05-04-07
The housing authority pulled a fast one on Charlie Goodwin, and the Appellate Division ruled that Bronx County Justice Stanley Green erred when he went along with the gambit.
SAUCE FOR THE GANDER
By Mark Thompson
Posted 04-27-07
Bennett A. Cohen kept getting hurt in elevators — or so he claimed. The lawyers he hired to exact compensation from the culprits responsible for the injuries he allegedly sustained in four elevator mishaps between 1989 and 1992 must have suspected that their litigious client might eventually turn on them, as he did. When the last of the elevator tort claims collapsed, Cohen sued the law firm for malpractice for allegedly mishandling his slam-dunk tort suits. Kings County Justice Lawrence Knipel apparently wasn’t in any hurry to unhitch the lawyers from the petard that they had theretofore been carrying on their former client’s behalf.
STENCH IN THE CITY
By Mark Thompson
Posted 04-20-07
New York County Justice Rolando T. Acosta pooh-poohed complaints about odors emanating from Rebecca Rosenbaum’s apartment in the Haroldon Court Condominium, offering an excuse for the pungent effusions that “strains credulity,” the Appellate Division said. Acosta ordered Rosenbaum to clean up her apartment, which a police lieutenant described as dangerously cluttered with furnishings, boxes, and debris. But he dismissed a nuisance action brought by other tenants and also dismissed the condo management’s cross claim against Rosenbaum seeking an eviction order. Acosta, in fact, found the legal action against the tenant so offensive that he order the complainers to pay her attorney’s fees. The judge’s ruling “appears to have been based upon an unreasonable and unsupportable finding that the odors complained of were only occasional and of the type that are unavoidable in close city quarters, an ‘inescapable reality of urban life’,” the incredulous appellate panel found.
OF WIFE AND WITNESS
By Mark Thompson
Posted 04-13-07
Stephen J. Brooks, an ironworker installing a steel girder who fell from the Northern Boulevard overpass above the Cross Island Parkway, faced an ordeal of another sort in Kings County Justice Martin Schneier’s court.
His employer’s liability was established in an earlier proceeding. But in the trial to determine the amount of damages, the employer’s attorney repeatedly spouted “inflammatory and prejudicial comments” about Brooks’s attorney and the witnesses who testified on the injured worker’s behalf, according to the Appellate Division. Schneier, who has been reversed 11 times in the last six months — in all but three of those cases for rulings that favored plaintiffs — apparently did little to rein in the rambunctious defense litigator, and the judge committed two clear errors that went against the plaintiff this time.
EXPANDING SCAFFOLDS
By Mark Thompson
Posted 03-30-07
Few statutes generate more litigation than Labor Law § 240(1), also known as the Scaffold Law. It was meant to allow negligence suits, rather than mere worker’s compensation claims, against employers who fail to provide workers perched on scaffolds and ladders with adequate safety devices. But it has been interpreted expansively to cover many kinds of “elevation-related risks” in the workplace.
New York County Supreme Court Justice Shirley Kornreich tried to keep the statute’s ongoing enlargement in check by dismissing the Scaffold Law claim in the lawsuit brought by Robert Boyle. Two judges on the Appellate Division panel that reviewed her ruling shared her concern that Boyle’s claim would stretch the law beyond its intended purpose. But the three-judge majority disagreed, reversing Kornreich and reinstating Boyle’s claim.
PROSECUTORIAL FIASCO
By Mark Thompson
Posted 03-23-07
Misconduct by a couple of Queens County prosecutors in a murder case 14 years ago continues to reverberate through the city’s courts. In a succession of state and federal rulings that now numbers more than half a dozen, one judge after another has weighed in on the mess. Queens County Supreme Court Justice Stanley Katz, now retired, is the latest to earn a rebuke for his role in the fiasco. In 2003, Katz handled the third trial in the case in which Eric Jenkins was charged with murder. In its reviewing of the retrial, the Appellate Division could come up with no explanation other than impermissible vindictiveness for the sentence that Katz imposed
BRONX JEER
By Mark Thompson
Posted 03-16-07
Bronx County Family Court Justice Marian Shelton apparently started to lose it in her dealings with a mother identified as Yolanda R. At issue was the woman’s reaction to a photograph of a cat. It wasn’t an ordinary photograph, to be sure. Her estranged ex-husband had sent it to her, and it depicted a cute kitten with a gun pressed to its head.
SHAKEN JUSTICE
By Mark Thompson
Posted 03-09-07
Brooklyn Family Court Justice Nora Freeman had “grave misgivings” about how a baby named Jacob ended up with a fractured rib and collar bone, and seizures caused by bleeding on the brain. That didn’t stop her from ordering the baby released from foster care and sent home with his parents, pending a resolution of a case charging them with child abuse.
Never mind that the doctors who performed emergency surgery to treat the seizures concluded that the brain injuries “were life-threatening, caused by non-accidental trauma, and consistent with shaken baby syndrome.” And never mind that the father didn’t even bother to testify at the hearing in which the parents pleaded with Freeman to give their baby back to them, leaving her in the dark about his credibility. Freeman was “apparently swayed by the testimony of the mother, who had complied with the directives [of the Administration for Children's Services] concerning counseling,” the Appellate Division incredulously said.
By Mark Thompson
Posted 03-02-07
BUSTED ON A HUNCH
No judge in the city is reversed more often for suppressing evidence in criminal cases than Bronx County Justice Richard Lee Price. It happened again this week.
RENT CONTROL MAVERICKS
By Mark Thompson
Posted 02-23-07
A pair of judges went out on a limb on behalf of the tenants in a rent-controlled building. The Appellate Division has hauled them back in. The wayward New York County Supreme Court justices, Paul Feinman and Faviola Soto, ruled that a provision in the city’s rent stabilization law and code that allows owners to take over “one or more dwelling units” for personal use can’t possibly mean that an owner can take over as many as six units, at least not when that is the total number of rent-controlled units left in a building.
By Mark Thompson
Posted 02-16-07
TRAFFIC JAM
New York County Justice Milton A. Tingling keeps coming up with new ways to make bad calls in lawsuits stemming from traffic accidents. He was recently reversed for the seventh time in less than five months for either dismissing a complaint that he should have sustained or, more often, for allowing a plaintiff to proceed who should have been sent packing. During that time frame, Tingling was partially reversed in yet another suit brought under the no-fault insurance law.
The novel twist in the latest case is that there may have been no traffic accident at all, notwithstanding plaintiff Ricardo Rojas’s claim in his lawsuit.
By Mark Thompson
Posted 02-09-07
SUING FOR ILL-GOTTEN GAINS
Plaintiffs attorney Seth Rotter, who has had his share of personal legal troubles over the years, now has one less problem to contend with — no thanks to New York County Justice Rolando T. Acosta. The judge refused to dismiss a suit filed against Rotter by a self-proclaimed “investigator” named Guillermo Bonilla, who claimed he was owed money for services he provided to the personal injury attorney.
In his defense, Rotter could have argued that the contract Bonilla was seeking to enforce was illegal. The “investigator,” after all, claimed the attorney agreed to pay him $2,500 for each client he managed to hustle up at a hospital, an arrangement that would constitute illegal fee-splitting. Rotter, however, chose not to raise the issue of illegality. No wonder. He would have run the risk of implicating himself in the fraudulent scheme. Acosta, declining to raise the issue on his own volition, let the case proceed to trial.
Acosta had no excuse for ignoring the sordid nature of the agreement that Bonilla was seeking to enforce, the Appellate Division said.
IMAGE PROTECTOR
By Mark Thompson
Posted 02-02-07
New York County Justice Paul G. Feinman fretted about possible damage to the reputation of New York City Councilman Miguel Martinez, and was rewarded for his concern with a reversal from the Appellate Division.
Feinman was swayed by the councilman’s lawyers that Martinez might suffer “reputational harm” and granted their motion to halt an ongoing audit of Martinez’s campaign fund from the 2001 election, pending a resolution of a procedural dispute. The investigation has been underway for years and the councilman’s campaign committee hasn’t helped expedite matters. The finance board ultimately charged the committee with 17 violations of campaign finance laws, backing up its case with documents showing “indicia of fraud,” including apparently altered invoices, discrepancies in signatures, and double endorsements of checks.
The Appellate Division wasn’t as sympathetic to the politician’s plight as Feinman.
By Mark Thompson
Posted01-26-07
DRIVERS ED FOR JUDGES
Drivers minding their own business when they are struck by other vehicles that barrel across multiple lanes into their cars generally don't expect to become defendants in ensuing lawsuits. Wily lawyers for careless drivers, however, are past masters at figuring out how to pass blame to those who were merely hapless, and they occasionally succeed at convincing trial judges of the merits of their fanciful accident reconstructions.
Bronx County Justice Norma Ruiz is the latest judge who was willing to put a hapless motorist on trial for damages in an accident caused by another vehicle that careened out of control. Mark Williams was the victim who was surprised to find himself on the defense in Ruiz's court. He saw the collision between two cars moving in the opposite direction and instinctively hit his brakes while remaining in his lane. That fateful decision left him in the path of one of the other cars, which spun across the double yellow line before colliding with him. It also left him vulnerable to a suit for damages for his share of the fault, in Ruiz's view.
The Appellate Division's First Department reversed Ruiz and proceeded to explain, for the second time in a little more than three months, why a driver who is hit by a vehicle that swerves into his or her lane generally can't be blamed for the ensuing collision.
By Mark Thompson
Posted 01-19-07
WHO’S THE JUDGE?
Last week the Appellate Division, First Department caught a trial judge asleep at the switch while the defense took over the proceedings. This time, the Second Department caught defense attorneys overstepping.
Kings County Supreme Court Justice M. Randoph Jackson allowed the defense to run amok in a medical malpractice case, the Appellate Division said in setting aside the jury’s verdict for the defense.
During the proceeding, the defense attorney “made many improper, inflammatory remarks” about the plaintiff's experts and the passel of “lies” they told in courts. Jackson didn’t stop it. He did, however, crack down on the plantiff, accepting a dubious defense argument to curtail the testimony of the plaintiff's pharmacist.
By Mark Thompson
Posted 01-12-07
TEMPER TEMPER
Apparently, lawyers had better be extra careful in minding their p’s and q’s in Manhattan Justice Louis B. York’s court. For the second time in less than three months, he has been reined in by the Appellate Division for delivering too sharp a rap to the knuckles of an errant litigator. This time, finding Lily Lee’s attorney in “gross violation” of court rules, he approved a referee’s report kicking her suit against a condominium board out of court.
York should lighten up a bit, said the Appellate Division.
By Mark Thompson
Posted 01-05-07
KINGS TAKES CROWN
The Appellate Division's First and Second Departments closed out 2006 with a flurry of reversals, overturning 64 New York City trial court decisions in full or in part in the last two weeks of December.
As is its habit, the First Department, which covers Bronx and New York Counties, was by far the more deferential of the two appellate courts. Only 11 of the citywide total of 64 reversals involved cases from New York County (Manhattan), and just four were from the Bronx.
In contrast, the Second Department, which covers the three remaining city boroughs, closed out the year with guns blazing, shooting down 49 decisions from those counties. Two of the reversed cases were from Richmond County, which encompasses Staten Island, while 17 were from Queens and a whopping 30 were from Kings County (Brooklyn).
The disparity was even more striking on the criminal docket. No criminal cases from New York, Bronx or Richmond Counties were among the 64 year-end reversals, while three were from Queens and five were from Kings.
Are Kings County judges unusually bad or are the Second Department appellate judges inordinately nitpicky? Or are Brooklyn prosecutors out of control? Take a look at the recent spate of five Kings County criminal reversals and judge for yourself.
By Mark Thompson
Posted 12-22-06
FAMILY KANGAROO COURT
It can’t be the least bit easy to be a conscientious judge in a Family Court faced with an endless, sad parade of cases involving allegations of child neglect and abuse. The “best interests of the children” are, of course, the paramount concern. But the parents’ rights can’t be ignored. Even if their parenting has been reprehensible in the past, a judge couldn’t help but wonder if the children would fare any better tossed into the maw of the foster care system or cut off from visitation with a divorced mom or dad.
Faced with such agonizing decisions on a daily basis, the city’s Family Court judges must get it right most of the time, at least as far as appellate panels are concerned. Very few cases involving children’s rights get reversed on appeal. Of those that are overturned, a disproportionate number, at least in the last several months, have emanated from the Bronx.
Maybe Family Court judges in the Bronx get more tough cases involving neglectful and abusive parents. Maybe they’re just plain wrong more often than others. Whatever the case, that one county from among the five that make up New York City accounted for three of the citywide total of six reversals since October in cases that pitted the interests of children against the rights of parents.
By Mark Thompson
Posted 12-13-06
CONTRACTS 101
New York County Justice Walter B. Tolub, in his 15-year career on the bench, has displayed a knack for handling controversial, high-profile cases with aplomb. Even lawyers on the short end of his rulings have been known to call him “one of the finest judges around.”
But can he correctly interpret the plain language of a run-of-the-mill contract? A spate of recent reversals suggests, at the least, that Tolub could benefit from a reading comprehension refresher course.
DEFERENCE DENIED
By Mark Thompson
Court officers are vital cogs in a smoothly functioning courtroom. It shouldn’t surprise anyone, therefore, that judges, who depend on them for everything from taking attendance to subduing enraged defendants, want to keep court officers happy.
Kings County Justice Larry D. Martin, however, recently went a bit too far to give a troubled court officer a break. The officer, James Minally had a disciplinary issue that wasn’t specified in the recent ruling about his case, but evidently it had something to do with drugs. To resolve the issue, he was apparently allowed to keep his job, provided that he submit to random drug testing. Under the terms of the stipulation, the test results would be “deemed conclusive upon the parties.”
That language in the agreement didn’t stop Minally from challenging the results when a test turned up positive and he was summarily terminated from his job by Joan Carey, the deputy chief administrative judge for the New York City courts, whose responsibilities include overseeing hiring and firing of court system employees. That’s where Judge Martin came in.
By Mark Thompson
SEX MISREGISTRATION
Kings County Justice Louis Marrero, who retired last March and died in September, took on a tedious assignment during the final year of his 40-year career on the bench: reviewing hundreds of sex offender classifications.
Someone had to do it. The state Department of Correctional Services had belatedly discovered that it had made an administrative error in the way it had determined risk levels for offenders with a sex crime on their record, as required by the Sex Offender Registration Act. That meant judges across the state had to take a second look at thousands of files. In Kings County, 600 cases needed to be reviewed, and 400 required new hearings. Marrero handled them all, in record time. His work was completed by early this year. Chief Clerk James Imperatrice said at the time that Kings County was first in the state to get the job done, thanks to Marrero.
Now, the appellate division is getting a chance to posthumously check Marrero’s work. So far, the late justice is batting two-for-four.
By Mark Thompson
CASE NOT DISMISSED
Has Kings County Justice Mark Partnow ever seen a dubious slip-and-fall suit that he didn’t like? You could be forgiven for thinking he hasn’t, based on his record before the Appellate Division, First Department in the last couple of months.
Partnow has been reversed, in whole or in part, four times since early October in cases in which he thought plaintiffs who took a spill should get their day in court — on claims that didn’t convince a single judge on any of the appellate panels. One tort defense attorney who asked to remain anonymous said Partnow “isn’t as bad as some of them. He will occasionally grant summary judgment motions” dismissing personal-injury suits. His recent record before the appellate court “may have been a string of bad luck.” Indeed, after picking up two reversals in slip-and-fall cases in October, Partnow picked up two more on Nov. 14.
By Mark Thompson
CITY SUITS
Kings County Supreme Court Justice Martin Solomon was reversed in September for prematurely dismissing a suit filed against the New York City school district by a student who was beaten up by a classmate. He was reversed again a week later for prematurely dismissing a suit against the city by a woman who tripped on a small crack in a sidewalk.
So perhaps it is understandable that Solomon was reluctant to dismiss a claim against the city housing authority by a construction company that insisted it was owed extra money for some welding it did on window sills in a housing project. Solomon got it wrong again. In this case, he should have dismissed the claim, the appellate division ruled this month.
By Mark Thompson
Posted 11-10-07
HASTY JUSTICE
A divided panel of appellate judges ruled that Rajindran Susankar was unfairly rushed into a sentencing hearing. In the process, the First Appellate Division majority concluded that New York County Justice James A. Yates was too quick to detect skullduggery in the defense attorney’s conduct.
It was the second time this year that Yates has been overturned in a case in which his street smarts were called into question. In the previous reversal, the appellate judges had no trouble concluding that Yates’s judgment was way off the mark.
By Mark Thompson
Richmond County Justice Philip Minardo was reversed for holding the New York City Transit Authority liable for a pedestrian’s risky maneuver after he got off a bus.
The 72-year-old passenger, Julio Rios, had safely disembarked at a designated stop on Lily Pond Road in Staten Island. Moments later, he was jaywalking across the six-lane boulevard, laden with shopping bags, when he was struck by a motorcycle. Minardo ruled that the transit authority bore 70 percent of the blame and thus must pick up that share of the $2.5 million damage award that the jury had handed Rios.
In Rios v. City of New York (October 17), the Second Appellate Department concluded that Rios was entirely to blame and set aside the judgment against the transit authority.
By Mark Thompson
Posted 10-27-06
The First Appellate Department called out two New York County justices this week for being overly generous with attorney’s fees. In a reversal of Justice Louis B. York, the appeals panel said the judge provided no rationale. And in a reversal of Justice Rolando T. Acosta, the appellate judges said the attorney in question had provided no request.
By Mark Thompson
Posted 10-20-06
Sometimes, judges can’t be blamed for reversible errors that occur in their courts. New York County Justice Ronald A. Zweibel, for instance, gave jurors who were considering the fate of Venus Harrison bad advice, forcing the First Appellate Department to overturn a conviction that was a virtual slam dunk.
But Zweibel has a good excuse for his error: the law changed after he committed it.
By Mark Thompson
Posted 10-13-06
New York County Justice Micki A. Scherer, who is the chief administrative judge of the Criminal Term of the Supreme Court in New York, rarely gets reversed. Out of more than 150 cases of hers that have been appealed since the start of 2000, only three had been overturned before last week, giving her one of the lowest reversal rates of all criminal judges in Manhattan. In a ruling handed down by the First Appellate Department October 10, Scherer picked up her fourth reversal of this decade.
This most recent reversal was for much the same error that she committed the last time she was reversed in 2005: hastily accepting guilty pleas without assuring that the defendants had voluntarily accepted the deal and fully understood its terms.
By Mark Thompson
Posted 10-06-06
For the third time in less than two months (see The Reversal Report 09-22-06), Queens Justice Duane Hart
has been reversed in a case involving conflicting medical evidence and testimony.
In the case in which he was reversed this week, the conflict concerned magnetic resonance imaging film. Justice Hart agreed with a lawyer for the defendant, a construction firm sued over an alleged back injury, who asserted in an oral motion prior to trial that the film could not be admitted into evidence because it was never properly authenticated. The appellate judges, however, in Pardodefigueroa v. Turner Construction Corp. (Oct. 3), noted that the defense failed to show that the film failed to meet the conditions for self-authentication under a statute enacted in 2003. That law allows properly certified business records to be entered into evidence without testimony from witnesses to establish the documents’ authenticity. Justice Hart also erred in refusing to let the plaintiff's expert witnesses and treating physicians offer their opinions about the MRI films. Justice Hart apparently believed that none of those witnesses had seen the films, but as the appellate panel observed, there was no factual basis in the record to support the judge’s conclusion on that point.
By Mark Thompson
Posted 09-29-06
New York County Justice Faviola A. Soto has kept a dubious streak alive. For the fourth month in a row, the appellate department has reversed or modified one of her decisions. In fact, Justice Faviola has had a ruling reversed or partially overturned at least once in every month except January and May since the start of the year.
By Mark Thompson
CAESARIAN QUANDARY
Tort reform activists assert that obstetricians deliver many babies by Caesarian section for no good medical reason. Instead, argue the reformers, doctors are driven by a fear that any complications in the course of a natural birth will entangle them in a malpractice lawsuit.
A couple of doctors involved in a botched natural birth at LaGuardia Hospital undoubtedly wish they had been quicker with the scalpel.
By Mark Thompson
HASTY JUSTICE
New York County Justice Ira Gammerman, a notoriously abrupt septuagenarian, had little sympathy for Louise Avidon or her attorney, Ronald Paltrowitz, who suddenly developed a severely herniated disc that required surgery on the eve of Avidon’s trial. A construction firm was demanding payment from her for an allegedly botched remodeling job on her condominium. Gammerman, who was presiding over the Calendar Part, a position in which he ascertains whether cases are ready and then sends them to trial courts as they open up, refused to give Avidon more than a two-day adjournment to find a new lawyer.
BY Mark Thompson
REPETITIVE INJURY
Hernandez v. Almanzar, August 31
Justice Yvonne Gonzalez, of the Bronx County Supreme Court, was convinced that Shawntrique Hernandez suffered a serious injury in a Feb. 9, 2002 automobile accident. After all, Dr. Aric Hausknecht, a prolific medical expert who is board-certified in psychiatry and neurology, said so. In his examination of the plaintiff, the doctor found an array of “range-of-motion deficits” that he was convinced were due to neck and back injuries that Hernandez had sustained in that particular accident.