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 In People v. Raosto, Vincent Raosto appealed his drug possession convictions, citing the "general carelessness" of his attorney and other "prejudicial errors."
At trial, a Bronx County Supreme Court judge supposedly engaged in "lengthy and inappropriate cross-examinations of defendant and defense witnesses," thereby interjecting himself into the case and causing jury confusion, disbelief of the defense witnesses, and general prejudice towards the defendant. There was also "substantial evidence that defendant's attorney ... was under the influence of heroin."
Apparently, during the trial, Raosto's attorney was inattentive, confused about important facts of the case -- including the time at which Raosto was arrested -- and failed to attack the arresting officer's credibility.
Since none of these errors were harmless, when the case reached the Appellate Division, First Department, the conviction was set aside and the matter was sent back to the Bronx County Supreme Court for a new trial.
In other words, Raosto prevailed because his attorney was loaded.
 To download a copy of the Appellate Division's decision, please use this link: People v. Raosto
 In People v. Naradzay, Jason Naradzay was convicted of two counts of attempted murder in the second degree, attempted burglary in the first degree and criminal possession of a weapon in the fourth degree.
Apparently, Naradzay was planning a double homicide, but before he could follow through with the murders, police apprehended him, uncovered a shotgun resting "5 to 10 feet away" from his person and a "to-do list" which outlined the plan.
After an Onondaga County Supreme Court jury found him guilty, Naradzay appealed to the Appellate Division, Fourth Department, which reiterated that a person is guilty of an attempt to commit a crime when he is "so near to its accomplishment that in all reasonable probability the crime" would have been committed had police not intervened. According to the AD4, Naradzay's "to-do list," his loaded shotgun, and his close proximity to his intended victims' home went "far beyond mere preparation" and supported the conviction.
A lone dissenter -- Justice Green -- had a problem with that.
Since the law "does not punish evil thoughts," Green thought the defendant shouldn't have been convicted of attempted murder and attempted burglary because Naradzay wasn't "'very near' or 'dangerously near'" to committing the acts because he was "some distance away" from his intended victims' driveway and his weapon was found some "5 to 10 feet away" from him. (Interestingly, the intended victims were also "out of town at the time of the incident.")
To-do: Take an appeal to the New York State Court of Appeals!
To download a copy of the Appellate Division's decision, please use this link: People v. Naradzay
 In Cabreja v. Rose, Vargas and Resto were riding along upper Manhattan in a car driven by Diaz Cabreja, when they were hit by a car owned by Citiwide Auto Leasing and driven by James Rose -- a New York City cop.
After a personal injury suit was filed, Citiwide and Rose asked the Bronx County Supreme Court for a change of venue to New York County, citing a state law -- CPLR 504(3) -- which requires suits brought against the City, or one of its officers, to be maintained in the county where the accident occurred.
When the Bronx County Supreme Court denied that request, an appeal to the Appellate Division, First Department, ensued.
Since the City wasn't a party to the action, the AD1 found CPLR 504(3) inapplicable because the law wasn't "intended as a benefit for individual litigants."
Trying breaking that!
 For a copy of the Appellate Division's decision, please use this link: Cabreja v. Rose
 In People v. Caban, Lynette Caban was backing up her Jeep into a pedestrian right of way when she struck an elderly pedestrian and killed her. (At the time of the accident, one of the jeep's windows was taped up with a brown paper bag, causing a blind-spot in the direction from which the pedestrian was approaching.)
After a jury trial, Caban was convicted by the New York County Supreme Court of criminally negligent homicide and was sentenced to 1 to 3 years in prison.
While the Appellate Division, First Department, agreed that the evidence was sufficient to support the verdict, the lower court was found to have erred when it allowed the jury to hear that Caban's driver's license had been suspended. The AD1 was of the opinion the suspension of her driver's license wasn't relevant to the case or to a negligence determination. Therefore, since that information lacked "probative value" and was "highly prejudicial," the AD1 reversed and sent the matter back for a new trial.
We're wondering why it's OK for someone to be driving with a suspended license.
 What's up that?
To download a copy of the Appellate Division's decision, please use this link: People v. Caban
 In People v. Henderson, Brian Henderson was convicted of attempted assault in the first degree and sentenced -- as a second felony offender -- to 16 years to life.
Apparently, a fight broke out at Rikers Island, causing injury to Pablo Pastrana, a fellow inmate. Henderson was implicated in the incident and was tried for attempted assault. When Pastrana claimed Henderson wasn't the inmate who attacked him, prosecutors questioned Pastrana's credibility and suggested he was lying because he was intimidated by Henderson. That theme continued through summation when a prosecutor proclaimed to the jury, "[s]nitches get stitches," and that the case was about Henderson's "arrogance and thinking that no one would be here to testify ... against him. He got the victim [Pastrana] to testify for him."
Once summations ended, the defense asked the judge for a mistrial, claiming that the prosecutor improperly implied Pastrana had been coerced into testifying in Henderson's favor. That request was denied by the Bronx County Supreme Court.
On appeal, the Appellate Division, First Department, could discern no prejudice caused by the prosecutor's trial tactics and noted it was appropriate on cross-examination to inquire whether Pastrana's testimony had been forced.
A lone dissenter -- Justice Catterson -- was of the opinion reversal was warranted since the defendant had been "substantially prejudiced by the People's improper comments." Catterson noted that, without evidence of intimidation by Henderson, prosecutors lacked a "good faith basis to question [Pastrana's] credibility."
Will the Court of Appeals be doing some stitching of its own?
To download a copy of the Appellate Division's decision, please use this link: People v. Henderson
 In Matter of Maiea P., when the New York County Family Court awarded custody of her 12 year-old to the child's father, Reshima K. appealed to the Appellate Division, First Department.
Interestingly, after it reviewed the record, the AD1 concluded the Family Court's determination lacked a "sound and substantial basis," since there was no evidence as to the father's fitness as a parent.
Additionally, because the 12 year-old had a "warm and loving relationship" with her mom and wished to remain in her mother's care, the AD1 opted to reverse and remand the case for a hearing as to whether a custody change would be in the child's "best interests."
We see fit to leave our analysis at that.
 To download a copy of the Appellate Division's decision, please use this link: Matter of Maiea P.
 In People v. Ballard, Tyrone Ballard faced charges of "criminal possession of a controlled substance in the fifth degree and unlawful possession of marijuana."
To be guilty of that first crime, one must "knowingly and unlawfully possess" the drug in an amount weighing "five hundred milligrams or more." Ballard argued that since he didn't know the weight of the cocaine he was carrying, he didn't "knowingly possess" the drug and therefore couldn't be found guilty. He also asserted prejudice by the court's replacement of a sick juror with "an alternate."
On appeal, the Appellate Division, Second Department, determined the term "knowingly" in New York's Penal Law "applies only to the possession element of the crime, and not to the weight element." It further determined the lower court acted "providently" when it replaced the juror, "after a reasonably thorough inquiry" as to that individual's availability.
Replacing a juror with an alternate wasn't impermissible as "'there is no material distinction between regular and alternate jurors' prior to deliberations."
Looks like the AD2 wasn't giving Ballad's arguments much weight.
To download a copy of the Appellate Division's decision, please use this link: People v. Ballard
 In People v. Martin, when Jeffrey Martin was pulled over by Officer Pickering, Martin handed the cop another person's driver's license and car rental agreement.
Martin's eyes were red and glassy, the vehicle reeked of alcohol, he admitted to having imbibed spirits earlier in the day, and a passenger informed another Officer -- Cook -- that a cup in the middle console contained Hennessy cognac.
While Cook handcuffed Martin and placed him in his patrol car, Pickering found a gun as he searched the vehicle for other open containers.
To compound matters just a bit, as Martin was taken into custody, marijuana and 20 bags of crack cocaine were found on his person.
After the Chemung County Court accepted Martin's plea, convicted him of "criminal possession of a controlled substance in the third degree" and "criminal possession of weapon in the fourth degree," and sentenced him to two years in prison with an additional two years of post-release supervision, Martin appealed to the Appellate Division, Third Department, challenging the search's propriety.
The AD3 reiterated the established rule that "when the occupant of an automobile is arrested, the very circumstances that supply probable cause for the arrest may also give the police probable cause to believe the vehicle contains contraband, evidence of the crime, a weapon or some means of escape." Since the officers' actions were within the bounds of the law, the guns and drugs they uncovered were properly seized and the conviction was upheld.
Anyone got the real dope on this case?
 To download a copy of the Appellate Division's decision, please use this link: People v. Martin
 In Nash v. Port Authority of N.Y. and N.J., the Port Authority got slammed for failing to take measures to improve security at the World Trade Center -- particularly its underground public parking facility -- despite warnings that an attack was likely to occur.
On February 26, 1993, terrorists drove into the WTC parking facility, armed with 1,500 pounds of dynamite set to explode within ten minutes. While the terrorists left unscathed, 6 people lost their lives and hundreds of others were injured.
For almost a decade prior, the Port Authority had received analysis foreshadowing the event. In 1984, Scotland Yard had been "appalled to hear" that the WTC still had "transient public parking directly underneath the Towers." In 1985, the Port Authority's Office of Special Planning issued a report concluding that it was not "merely possible, but 'probable,' there would be an attempt to bomb the World Trade Center." The report stressed the urgency of improving security by "screening entering vehicles for explosives." In 1986, an outside consulting firm, Science Applications International Corporation, offered an "Attack Scenario," which detailed the consequences of a WTC terrorist attack
Inexplicably, the Port Authority ignored all those warnings. When it was later sued, the entity argued it was under "no legally enforceable obligation to take any of the recommended precautions" and "the likelihood of the bombing ... was not shown."
When the New York County Supreme Court denied the Port Authority's motion to dismiss the case, an appeal to the Appellate Division, First Department, followed. The AD1 concluded the entity "failed in its capacity as a commercial landlord to meet its basic proprietary obligation to its commercial tenants and invitees to reasonably secure its premises, specifically its public parking garage, against foreseeable criminal intrusion."
While the attack was unprecedented, the Port Authority "had ample notice that a car bombing such as the one that occurred was not merely possible, but could very well occur if obvious, specifically identified vulnerabilities were not addressed." Particularly because the risks were so "monstrous," it was unreasonable for the Port Authority to refuse to "minimize the risk of harm from criminality upon its premises."
According to the AD1, implementation of those "target-hardening recommendations" would have triggered an "inconsequential" revenue loss when compared to the $100 million in income the Port Authority then received from its WTC tenants.
We would like to know the names of the state officials who placed New Yorkers' lives in needless jeopardy, all in the interest of capital preservation and revenue generation.
Lady Liberty's light should shine bright on them, as they stand before us in shame.
To download a copy of the Appellate Division's decision, please use this link: Nash v. Port Authority of N.Y. and N.J
 In People v. Mendoza, Silva Mendoza asked the Bronx County Supreme Court to stop prosecutors from introducing evidence that "contraband" was discovered in his pocket during a search conducted by Rikers Island corrections officers.
When the Bronx County Supreme Court denied Mendoza's request without a hearing, and sentenced him to a term of 2 to 4 years, Mendoza appealed to the Appellate Division, First Department.
Although he asserted a constitutional violation, in view of an inmate's diminished rights and Mendoza's failure to show why the search was "unreasonable," the AD1 could discern no basis to disturb the outcome.
Clearly, Mendoza needed deeper pockets.
 To download a copy of the Appellate Division's decision, please use this link: People v. Mendoza
 In Vucetovic v. Epsom Downs, Inc., Dzafer Vucetovic was injured on property maintained by Epsom Downs, Inc. (Epsom).
The City of New York removed a tree in front of Epsom's building, leaving a tree stump inside the cobblestone-lined tree well, which was installed prior to Epsom's acquisition of the building.
While walking along the sidewalk, Vucetovic tripped on the cobblestone and injured himself. He later sued claiming a violation of New York City law which "imposes tort liability on property owners who fail to maintain City-owned sidewalks in a reasonable safe condition."
After the New York County Supreme Court granted Epsom's request to dismiss the case -- on the ground that the tree well wasn't a part of the sidewalk -- both the Appellate Division, First Department, and, the New York State Court of Appeals later affirmed.
Our state's highest court concluded that local law excluded "tree wells" and, since they are "City-owned" and local law didn't expressly transfer liability to private landowners, Vucetovic's case couldn't survive.
Guess who needed a soak after getting that news?
 For a copy of the Court of Appeals' decision, please use this link: Vucetovic v. Epsom Downs, Inc
 In Matter of Courtney G., Courtney G.'s mother was allegedly a substance abuser who failed to adequately supervise her daughter by "permitting her to become pregnant on multiple occasions." Mom also fought with the child while the latter was pregnant.
When the Onondaga County Family Court dismissed the neglect petition, on the ground that the allegations against the mother were insufficient as a matter of law, an appeal to the Appellate Division, Fourth Department, followed.
The AD4 thought the pleadings set forth a "prima facie" neglect case and reinstated the matter for a formal hearing or trial.
Now there's no neglecting that!
 To download a copy of the Appellate Division's decision, please use this link: Matter of Courtney G.
 In People v. George, Paul George was charged with "criminal sale of a controlled substance in the third degree" and during the jury selection process one of the jurors -- who treated many HIV patients who acquired the disease from drug use -- expressed doubts as to whether he could be impartial. (Although he claimed he could be open-minded, the juror didn't make that statement in an clear and concise way.)
So, when the New York County Supreme Court denied George's challenge to the juror's service, and was later convicted and setenced to a six-year term, George claimed reversible error and appealed.
The Appellate Division, First Department, noted that "when potential jurors reveal knowledge or opinions reflecting a state of mind likely to preclude impartial service, they must in some form give unequivocal assurance that they can set aside any bias and render an impartial verdict." Since this juror didn't state that he could be unbiased, the AD1 thought the Supreme Court should have granted George's challenge.
As a result, the conviction was reversed and the matter sent back for a new trial.
By George, he got it!
 To download a copy of the Appellate Division's decision, please use this link: People v. George
 In Kuwaiti Eng'g Group v. Consortium of Intl. Consultants, LLC, Kuwaiti Engineering Group filed suit to enforce an agreement which had been reached with the Consortium of International Consultants -- a Delaware corporation -- and Safege Consulting Engineers -- a French corporation. (The contract called for the performance of environmental consulting work in Kuwait.)
When the New York County Supreme Court granted Safege's motion to dismiss the case on "forum non conveniens" -- or inconvenient forum -- grounds, an appeal to the Appellate Division, First Department, ensued.
Since the agreement was only partly negotiated in New York, was executed outside of the state, and the purported misconduct occurred elsewhere, the AD1 was of the opinion that the countries of Kuwait and France were "viable alternative forums."
There wasn't enough of a connection or "nexus" with New York to justify our state's involvement in the dispute.
How convenient!
 To download a copy of the Appellate Division's decision, please use this link: Kuwaiti Eng'g Group v. Consortium of Intl. Consultants, LLC
 In 1988, James M. pled not guilty by reason of mental disease to attempted murder and reckless endangerment.
After it was determined he suffered a "dangerous mental disorder," James was committed to a psychiatric hospital where he remained pursuant to a series of retention orders, including one issued in May of 2007 by a New York County Supreme Court justice.
On appeal, the Appellate Division, First Department, found the latest order appropriate since James's condition rendered him a "physical danger to himself and others."
Apparently, James threatened staff members and patients with violence, refused to undergo treatment, and had "forced sexual contact" with another patient. (Medical experts were of the opinion that if he were transferred to a nonsecure facility, James would "present a high risk for dangerous behavior.")
See how tough it is for a guy to get retained?
 To download a copy of the Appellate Division's decision, please use this link: Matter of Rabinowitz v. James M.
 In F. Richard Wolff & Son, Inc. v. Tutora, F. Richard Wolff & Son (Wolff) sued Anthony Tutora for a commission Tutora allegedly owed to the company.
Tutora hired Wolff as a real-estate broker to sell Tutora's "adult care resident facility" business and accompanying real estate, "as a package." The terms of their contract provided that Wolff's commission would be 6.5% of the selling price.
After Wolff found a prospective buyer, Tutora agreed to a $1.3 million deal, but the sale was subject to the purchaser getting a substantial bank loan. When that fell through, the parties continued their negotiations and the purchaser bought the business and leased the real property from Tutora, months after the brokerage agreement expired.
Wolff felt that it was still owed a commission based on the $1.3 million price because the company had procured a "ready and willing" buyer. The Westchester County Supreme Court felt otherwise and dismissed the case.
On appeal, the Appellate Division, Second Department, reiterated the established rule that "a real estate broker will be deemed to have earned his or her commission when he or she produces a purchaser who is not only ready and willing to purchase ... but able to do so as well." As the sale of the business and real estate was contingent upon bank financing, and the purchaser was unable to close the deal originally contemplated without those proceeds, Wolff wasn't entitled to a commission.
The AD2 wasn't afraid of no Wolff.
 For a copy of the Appellate Division's decision, please use this link: F. Richard Wolff & Son, Inc. v. Tutora
 In Santo B. v Roman Catholic Archdiocese of N.Y., it was claimed that Rev. William White -- a monsignor associated with the Roman Catholic Archdiocese of New York -- sexually abused Santo B. for three years while he was altar boy at Holy Family Church.
When the Archdiocese sought to dismiss Santo's case on the ground that it was "time-barred," Santo contended that the limitation didn't apply since the Archdiocese engaged in a "practice of concealing the problem."
When the Westchester County Supreme Court dismissed his case, Santo appealed to the Appellate Division, Second Department.
The AD2 noted that Santo was required to file his suit no later than his 21st birthday, which was on October 16, 2001. Because he waited until 2005, the time to start his case had long since passed.
The appellate court was also of the opinion Santo was unable to establish the Archdiocese "engaged in affirmative wrongdoing, fraud, deception, or misrepresentations," which stopped him from timely filing his case. And, finally, while he also alleged "insanity" -- which might have stopped the clock from running -- Santo was unable to show an inability "to protect his legal rights because of an overall inability to function in society."
Spirito Santo!
 To download a copy of the Appellate Division's decision, please use this link: Santo B. v Roman Catholic Archdiocese of N.Y.
 In West Middlebury Baptist Church v. Koester, after Kevin Koester built a fence around a parcel of land believed to be his, the West Middlebury Baptist Church filed suit to determine who was the property's true owner.
The Church and Koester owned adjacent properties in West Middlebury, linked by a 1.19 acre "pie-shaped" parcel of land which the church claimed ownership.
An 1832 deed, which conveyed the property to the Church, described the northern boundary which the Church believed included the 1.19 acres, while Koester's deed made no reference to the area. Interestingly, when both parties employed surveyors, the mutual conclusion was that the 1.19 acres belonged to Koester and in 1999 he fenced-in the parcel.
When the Wyoming County Supreme Court found Koester to be the property's rightful owner, the Church appealed to the Appellate Division, Fourth Department.
The AD4 was of the opinion that the Church had acquired title to the property by way of "adverse possession" since it had open and exclusive use of the property for parking and treated it as its lawn for a 10 year period, had maintained two horse sheds on the property for nearly a century (prior to 1995 or 1996), and cultivated the area by "mowing, raking, and clearing." *
Was that a miracle or what?
To download a copy of the Appellate Division's decision, please use this link: West Middlebury Baptist Church v. Koester
* As a result of the recent statutory amendments to the law, mere "mowing, raking, and clearing" no longer cuts it.
For additional posts on this topic, please use this link: Adverse Possession
 In Bloomingdales, Inc. v. New York City Transit Authority, the New York City Transit Authority (NYCTA) had been repairing the electricity in the subway station near Bloomingdales' department store (on Third Avenue in Manhattan), when the retailer noticed its lower level flooded whenever it rained "heavily."
While Bloomingdales suspected there was a problem with the storm drainpipe, an inspection revealed it had been "cut and that a concrete duct was bisecting the pipe" causing water to enter the building rather than flow to the sewer.
When Bloomingdales filed suit against the NYCTA claiming negligence, trespass, and nuisance, the New York County Supreme Court found each of store's claims "time-barred" -- meaning that the time within which those claims could be asserted had passed.
On appeal, the Appellate Division, First Department, noted "a claim involving an underground trespass was not barred by the three-year statute of limitations for injury to property" because the continuous obstruction to the drainpipe created "successive causes of action." Therefore, instead of treating the NYCTA's severance of the drainpipe as a "single negligent act," the AD1 saw it as a "continuous interference" and thus allowed the case to proceed.
A lone dissenter -- Justice Sweeny -- believed Bloomingdales' claims weren't timely since there wasn't an "encroachment" onto the store's property and, therefore, no lasting effects from the NYCTA's severing of the drainpipe.
If this case reaches the Court of Appeals, will NYCTA be caught in its Bloomies?
 To download a copy of the Appellate Division's decision, please use this link: Bloomingdales, Inc. v. New York City Transit Authority
 In Matter of Bonnilla v. McCuen, Robert Bonnilla wanted to stop his ex-wife from relocating from New York to North Carolina with their children.
Courts will typically allow relocation when it is in the children's "best interest."
In this case, the Suffolk County Family Court granted Carrie Ann McCuen permission to move to the Old North State but conditioned Bonnilla's visitation rights on "his good-faith attempt to reduce his child support arrears and a money judgment" which had been awarded to the Suffolk County Department of Social Services.
Bonnilla appealed to the Appellate Division, Second Department, which disapproved of the payment conditions and sent the matter back to the Family Court so that a "post-relocation visitation schedule" could be determined.
Wasn't this case heading south?
 For a copy of the Appellate Division's decision, please use this link: Matter of Bonnilla v. McCuen
 In Hakimi v. Cantwell Landscaping & Design, Inc., Farhad Hakimi claimed breach of contract stemming from landscaping work Cantwell performed on the homeowner's property.
Apparently, when Hakimi hired the company, Cantwell wasn't a licensed home improvement contactor as required by Suffolk County Law.
After a suit was filed, Cantwell countered with its own claim for the unpaid balance, and sought to foreclose on a mechanic's lien it filed on Hakimi's property.
Hakimi argued that Cantwell wasn't entitled to the monies since the company wasn't licensed when it performed the services. Cantwell contended that the work fell within a license exemption for "new construction," and the Suffolk County Supreme Court agreed with the landscaper's position.
On appeal, the Appellate Division, Second Department, looked at the law's wording and found the loophole only applied to the actual construction of a new structure. The AD2 noted that "interpreting the phrase to include landscaping work performed at a property ... would require this Court to 'impermissibly rewrite a clearly worded statute to obtain a desired result.'" Therefore, since the work didn't fall within the governing licensing exemption, Cantwell couldn't get paid for its services and its lien was vacated.
Do you share that view of the landscape?
 To download a copy of the Appellate Division's decision, please use this link: Hakimi v. Cantwell Landscaping & Design, Inc.
 In Shapiro v. Kurtzman, the Rockland County Supreme Court dismissed a case brought against Deborah Shapiro Kurtzman -- in July of 2004 -- after Milton B. Shapiro failed to respond to discovery.
A little over a year later, when his attorney was diagnosed with Alzheimer's, Milton reinstated his complaint against Kurtzman claiming that his attorney didn't "properly represent him."
After considering an expert's affidavit which provided that in the earliest stages of Alzheimer's "there are noticeable deficits in demanding job situations," the Rockland County Supreme Court concluded that counsel's "mental illness" rendered the lawsuit's dismissal inappropriate. However, it imposed a $10,000 sanction against Milton and directed he answer all "outstanding interrogatories within 60 days."
On appeal, the Appellate Division, Second Department, agreed the attorney's incapacity vitiated any deliberateness and concurred with the lawsuit's reinstatement and conditions imposed.
Sorry ... but we forgot the point of this post.
To download a copy of the Appellate Division's decision, please use this link: Shapiro v. Kurtzman
 In Vushaj v. Insignia Residential Group, Inc., handyman Kanto Vushaj was injured while making electrical repairs to a fuse block in a building managed by Insignia Residential Group, Inc. (Insignia).
When the Bronx County Supreme Court refused to dismiss the case against Insignia, the company appealed to the Appellate Division, First Department.
The AD1 determined that under the management agreement's terms, Insignia didn't have a duty to ensure the building was in "good repair" nor was there enough evidence to establish that Insignia was aware of an electrical defect.
In order to hold Insignia responsible for the accident, Vushaj needed to demonstrate that it was in "complete and exclusive control of the premises." Since the company lacked such "broad authority," the building's owner was solely responsible for any failure to make repairs.
Are you shocked by that?
 To download a copy of the Appellate Division's decision, please use this link: Vushaj v. Insignia Residential Group, Inc.
 In Tower Ins. Co. of N.Y. v. Lin Hsin Long Co., Tower wanted a court to rule that it wasn't obligated to defend or indemnify Lin Hsin Long Co. -- known as Hunan Ritz Restaurant -- in connection with a personal injury suit filed against the establishment.
When it received notice some nine months after Charlotte Theodoratos fell in defendant's place of business, Tower filed its own lawsuit contending that, since neither Lin Hsin nor Theodoratos timely notified the insurer of a possible claim, Tower wasn't responsible for the payment of any sums found due to Theodoratos.
After the New York County Supreme Court denied Tower's motion for relief in its favor, the insurer appealed to the Appellate Division, First Department, which agreed Tower hadn't been given notice of the accident within a "reasonable period of time."
While Lin Hsin argued that it didn't contact Tower because it didn't believe there would be a claim, the AD1 was of the opinion the restaurant wasn't in a position to make that kind of assessment. (The AD1 also found Theodoratos' counsel failed to exercise "due dilgence" when he merely urged the restaurant to notify its carrier.)
A lone dissenter -- Justice Andrias -- didn't believe Theodoratos or her attorney did anything wrong, and that the governing standard should have been less stringently applied to an injured party (rather that the insured).
If the Court of Appeals doesn't intervene, this Tower will be insurmountable.
To download a copy of the Appellate Division's decision, please use this link: Tower Ins. Co. of N.Y. v. Lin Hsin Long Co.
 In TOA Construction Co., Inc v. Tsitsires, the Appellate Division, First Department, struggled with whether Michael Tsitsires maintained his apartment as his "primary residence," even though "mental illness" kept him from actually occupying the unit.
Tsitsires' landlord -- a "notorious slumlord" driven to "empty its building of all tenants" -- filed a case to evict Tsitsires from his "single-room occupancy" apartment since it wasn't the tenant's principal or "primary" home. The evidence established Tsitsires used this apartment as only a mail drop and storage space, he didn't keep a key, and that his long-time girlfriend -- Alberta Lang -- used the apartment for showers and storage of her own belongings.
While the unit was described as "uninhabitable," that wasn't the dispute's central focus. The New York County Civil Court was compelled to find in the landlord's favor since Tsitsires hadn't maintained the apartment as his "primary residence." (The tenant's mental illness didn't excuse his physical absence.)
On appeal, the Appellate Term, First Department, expressed discomfort condemning a man to homelessness and reversed. ("[P]ublic policy concerns do not require us to sustain the needless eviction of this seriously disturbed tenant, upon what in essence would be a judicial finding that tenant maintains his primary residence on a park bench.")
When the dispute reached the Appellate Division, First Department, it sided with the Civil Court.
While Tsitsires didn't maintain another residence (as he preferred to sleep in Central Park or on local stoops), his "lifestyle choice" wasn't a dispositive consideration as a regulated tenant is required to maintain an "ongoing, substantial, physical nexus [with the regulated unit] ... for actual living purposes."
Although cases have excused "temporary" absences, a tenant must demonstrate an intention "to return to and reside in the apartment as soon as practicable." Tsitsires wasn't able to supply any evidence that he could, or would, return to the apartment particularly since he declined medical treatment for his condition.
While "sympathetic" to his "plight," the majority was steadfast in its conviction that Tsitsires had "abandoned" his apartment and was properly subject to eviction.
In a heated dissent, two justices of the AD1 felt the Civil Court's analysis was "seriously flawed and riddled with significant misstatements of fact."
The dissenters were of the opinion the trial court relied a bit too heavily on the testimony of a former building manager who never saw Tsitsires enter or exit the apartment. They believed the Civil Court hadn't considered that Tsitsires and his girlfriend "kept very irregular hours," that Tsitsires often waited in the lobby before going up to his unit for fear of seeing other building occupants, and that his girlfriend (Ms. Lang) used the apartment "on a continual basis."
Relying on the manager's characterization of Tsitsires' "homeless lifestyle," the Civil Court supposedly discounted Tsitsires' testimony he spent 7-8 months a year in his apartment and that his absences were seasonally related since apartment wiring didn't support air conditioning and the heat often wasn't working.
The dissenters also questioned the majority's reliance on Tsitsires' failure to accept medical treatment as the basis for his refusal to return to the apartment when, perhaps, the reason was the unit's uninhabitable condition. (They also objected to the lack of any evidence that Tsitsires "exceeded the 183-day period of unexplained absence permitted by the applicable statute.")
Life has certainly proven to be like a box of chocolates for this particular tenant.
 Will Tsitsires take his tsuris to the Court of Appeals?
To download a copy of the Appellate Division's decision, please use this link: TOA Construction Co. Inc. v. Tsitsires (AD)
To download a copy of the Appellate Term's decision, please use this link: TOA Construction Co., Inc. v. Tsitsires (AT)
To download a copy of the Civil Court's decision, please use this link: TOA Construction Co., Inc. v. Tsitsires (Civil Court)
 In Matter of Couse v. Couse, Peggy Couse's parents wanted to visit with their grandchildren and asked the Chenango County Family Court for assistance. When that court denied their request, and indicated they would only be entitled to that relief once their daughter died, an appeal to the Appellate Division, Third Department, followed.
The AD3 didn't think the grandparents needed to wait for their daughter's death. Rather, they had to show "circumstances in 'which equity would see fit to intervene.'"
In this case, the AD3 concluded that the Family Court should have examined whether it was in the children's best interests to give the grandparents visitation rights.
To grandmother's house they go?
 To download a copy of the Appellate Division's decision, please use this link: Matter of Couse v. Couse
 In Heimbuch v. Grumman Corp., Elizabeth Heimbuch filed suit against Grumman Corp. -- her truck's manufacturer -- after she was injured lifting the hood.
Heimbuch alleged that the truck was missing a "gas assist" device, which facilitated opening the outer metallic panel shielding the engine. She claimed that Grumman was strictly liable for the accident "based on a manufacturing defect, design defect, and failure to warn."
When the Nassau County Supreme Court denied Grumman's motion to dismiss the case, the company appealed to the Appellate Division, Second Department.
While a manufacturer can be sued when a company releases a defective product which has caused injury, Grumman established this particular truck had the disputed piece of equipment when released.
Since the device was removed after the vehicle was manufactured, Grumman wasn't the "proximate cause" of Heimbuch's injuries -- a necessary element in a products liability case. According to the AD2, Heimbuch was responsible for her own injuries since she knew the gas assist device was missing, yet continued to lift the hood without it every day.
Did the AD2 pull a Heimbuch maneuver?
To download a copy of the Appellate Division's decision, please use this link: Heimbuch v. Grumman Corp.,
 In New York City Health & Hosps. Corp. v. Brian H., Jacobi Medical Center sought to overturn an order releasing Brian H. from its care.
Because he was admitted to the hospital five days after an M-80 exploded in his hands, doctors were forced to amputate Brian's infected left hand and three fingers on his right hand.
Shortly after Brian's discharge, the police admitted him to the psychiatric unit of the hospital which applied to have Brian involuntarily admitted pursuant to a state statute -- Mental Hygiene Law section 9.27. That application was supported by medical certifications which described Brian as "easily agitated and hostile" and "acutely manic."
When Brian later requested to be released, a hearing was held before the Bronx County Supreme Court which directed Brian's discharge due to the testifying physicians' conclusory testimony.
On appeal, the Appellate Division, First Department, was of the opinion that the evidence sufficiently established Brian's need to be "retained," particularly in view of his repeated hospitalizations and inability to live without "direct medical supervision."
In other words, releasing Brian would have been crazy.
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