Our People

Hon. David B. Saxe (Ret.)

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Tel: 212.735.8749
Fax: 917.522.9949
Email: dsaxe@morrisoncohen.com

Notable Cases

Charpié v Charpié, 271 AD2d 169 [2000]

Held that interim counsel fees may be awarded to a spouse who has the financial ability to meet that cost where those resources are finite and modest and the other spouse appears to have much more extensive assets and income.

Reiss v Financial Performance Corp., 279 AD2d 13 [2000] Saxe, J., dissenting; majority opinion reversed 97 NY2d 195 [2001]. 

Justice Saxe disagreed with majority’s interpretation of stock warrants, arguing that it in effect altered the terms of the warrants in the event of a reverse stock split; the Court of Appeals modified the majority opinion, explaining that the warrants’ failure to address the contingency of a reverse stock split does not, of itself, create an ambiguity.

Campaign for Fiscal Equity v State, 295 AD2d 1 [2002],  Saxe, J., dissenting; majority opinion modified 100 NY2d 893 [2003]. 

Justice Saxe rejected the majority’s conclusion that providing students with sixth-grade arithmetic skills and an eighth-grade reading level is sufficient to satisfy constitutional requirement of a sound basic education; the Court of Appeals agreed with him, remarking that “More is required.  While a sound basic education need only prepare students to compete for jobs that enable them to support themselves, the record establishes that for this purpose a high school level education is now all but indispensable.”

McNulty v the City of NY, 295 AD2d 42 [2002], Saxe, J., dissenting; majority opinion reversed 100 NY2d 227 [2003]. 

Justice Saxe disagreed with the majority and asserted that physicians and hospitals do not owe any duty of care to a nonpatient, even if that nonpatient identified herself as a friend of a patient who participated in caring for and transporting the patient to the hospital shortly before the patient was diagnosed with a highly contagious disease.  The Court of Appeals agreed.

Houbigant, Inc. v Deloitte & Touche LLP, 303 AD2d 92 [2003]. 

Although the malpractice claim against the accounting firm should have been dismissed because facts did not show privity of contract, the fraud claims should not have been dismissed because the allegations containing sufficient specificity to make out a claim that assurances by defendant accounting firm regarding financial statements were knowingly false, and that defendant took no action to investigate deficiencies in the corporation’s records or to report these deficiencies in its audit report.  Justice Saxe said, “As Chief Judge Cardozo pointed out in Ultramares (255 NY 170 at 189), even where the law does not permit a claim of negligence to be brought against a professional by a person not in privity with the professional, this rule ‘does not emancipate accountants from the consequences of fraud.’"

Ruth Westbrook v WR Activities-Cabrera Markets, 5 AD3d 69 [2004]. 

Plaintiff customer was injured when she turned a corner into a grocery aisle and tripped over a box that had been left in the aisle.  Reversed the grant of summary judgment to defendants.  Explained that if the box was found to have been an "open and obvious" danger, based on its location in the aisle, that would only negate defendants’ duty to warn of the hazard, leaving an issue as to whether the box's presence represented a breach of defendants' duty to provide a reasonably safe supermarket.

Hernandez v Robles, 26 AD3d 98 [2005], Saxe, J. dissenting; - see Obergefell v Hodges, 135 S Ct 2584 [2015]

Justice Saxe said, “Civil marriage is an institution created by the state, and the state makes numerous rights and benefits available to those entering into that status. The denial of these rights and benefits to our State's homosexual residents is contrary to the basic principles underlying our constitution, our legal system and our concepts of liberty and justice, and perpetuates a deeply ingrained form of legalized discrimination.  It misses the point to ask whether the Legislature was purposefully discriminating at the time of its enactment of the challenged statutes.  At the time of their enactment the content and purpose of the challenged statutes were founded upon a discriminatory assumption, taken for granted by the Legislature and society generally, that marriage is a right necessarily limited to heterosexuals.  The statute ought to be acknowledged and analyzed as the discriminatory provision it is, and rejected as such.”

Morris Gletzer v Amos Harris, 51 AD3d 196 [2008], affirmed 12 NY3d 745 [2008]. 

Although the judgment creditor moved to renew the judgment before the expiration of the 10-year period, the order renewing the judgment was not entered until over three years after the original judgment lien against the owner's property had expired. During that three year gap, mortgagees had recorded mortgages.  Justice Saxe reversed the trial court’s entry of the renewal order nunc pro tunc to the day that the prior judgment lien expired, holding that CPLR 5014 did not require nunc pro tunc treatment wherever the renewal judgment was granted after the first 10 years had already expired.  Since the mortgagees who properly recorded their mortgages at a time when the official records indicated that the only extant lien had expired, as creditors they were fully entitled to rely upon that fact and to make mortgage loans on the assumption that their mortgage liens would have had priority.  The Court of Appeals affirmed.

Joel Thome v Calder Foundation, 70 AD3d 88 [2009]. 

Plaintiff wanted the court to authenticate works in his possession as created by artist Alexander Calder; Justice Saxe explained that it is not the province of the court to make such a decision where the art world and market looks to the artist’s foundation for such determinations.

Camille Khaira v Jasvinder Khaira, 93 AD3d 194 [2012]. 

The pendente lite support determination failed to follow the dictates of Domestic Relations Law § 236(B)(5-a); it did not set out a calculation of appropriate child support and did not discuss or mention the factors in § 236(B)(5-a)(c)(2).  By calculating the guideline amount and then simply adding the direct mortgage payment on top of that, the motion court awarded more than the amount reached by the formula, without providing the required explanation.

Nandkumar Ramkumar v Grand Style Transp. Enterprises, 94 AD3d 484 [2012], Saxe, J. dissenting; majority opinion reversed 22 NY3d 905 [2013]. 

Justice Saxe disagreed with the majority’s view that in order to be entitled to proceed with his serious injury claims, plaintiff had an affirmative obligation to document and explain why he could not pay out of pocket for his continued therapy after his no-fault benefits stopped covering his therapy.  The Court of Appeals agreed, holding that it was an “unwarranted expansion” of existing law to require the plaintiff to offer documentary evidence that his no-fault benefits were cut off, or indicate that he could not afford to pay for his own treatment.

Venecia V. v August V., 113 AD3d 122 [2013]

Reaffirmed Mars v Mars (19 AD3d 195 [1st Dept 2005]) that a parent may assert legal malpractice as an affirmative defense to the fee claim of an attorney for the child, unaffected by the subsequently-adopted Rule of the Chief Judge (22 NYCRR § 7.2) that renamed law guardians “attorney for the child” and required them to “zealously advocate the child's position.”  Although a parent who feels aggrieved may claim malpractice as a means of avoiding payment of the attorney’s fee or attempting to control the litigation, attorneys for the child are not entitled to complete immunity against the defense of legal malpractice.  However, we emphasized that a prima facie showing of legal malpractice and disciplinary violations was necessary to allow such a claim to proceed. 

Matter of Holmes v Winter, 110 AD3d 134 [2013], Saxe, J., dissenting; majority reversed 22 NY3d 300 [2013].

The majority authorized the order compelling a journalist to appear in a Colorado court pursuant to subpoena and to disclose her source, under the Uniform Act to Secure the Attendance of Witnesses from without the State in Criminal Proceedings (Uniform Act) (CPL 640.10).  Justice Saxe dissented, because the New York journalist was protected by New York’s Shield Law (Civil Rights Law §79-h[b]).  The Court of Appeals agreed with Justice Saxe.

Jeffrey Gural v Fred Drasner, 114 AD3d 25 [2013]. 

Held that a part performance exception to the Statute of Frauds should not be applied to contracts that are not capable of performance within one year of their making, because unlike General Obligations Law § 5-703, which explicitly provides for a part performance exception for oral contracts for the conveyance of an interest in real estate, section 5-701 contains no such provision.

Greater New York Taxi v NYC Taxi & Limousine, 121 AD3d 21, [2014], affirmed 25 NY3d 600 [2015]).

Held that in view of the broad statutory powers granted to the TLC to set policy, the TLC did not exceed its authority or intrude on the City Council's domain in violation of the separation of powers doctrine by enacting the Taxi of Tomorrow rules.