Tom Brokaw characterized the Americans born in the first quarter of the 20th century as the “greatest generation.” Those Americans are admired for their work ethic, their sense of duty to their country and the enduring contributions they made to society. On Nov. 4, we lost an individual who epitomized the members of that generation: New York State Supreme Court Justice Martin Evans (retired).
An exceptionally intelligent and educated man, Justice Evans earned a B.S. from New York University, an M.B.A. from Harvard University, an LL.B. from Columbia University and an LL.M. from New York University.
A dedicated patriot, Justice Evans served in the United States Army for several years, joining the service before America entered World War II and serving through the War’s conclusion. An officer who ultimately attained the rank of captain, Justice Evans fought in the European Theater with the Second Armored Division, participating in the landing on Omaha Beach in Normandy, France and seeing heavy action throughout the war (including the Battle of the Bulge). Justice Evans received numerous medals and citations, most notably the Bronze Star and the Chevalier of the French Legion—France’s highest military decoration. After returning from the war and earning his LL.B., Justice Evans practiced law for almost 20 years, concentrating on civil litigation.
In 1969, Justice Evans entered judicial service, spending 4 years as a civil court judge, 22 years as an elected Supreme Court Justice and several more as a Judicial Hearing Officer. Justice Evans distinguished himself on the Bench: he was a prolific and learned writer (more on that below), and an assiduous trial judge who presided over innumerable proceedings. After retiring from the bench, he returned to the practice of law with the firm of Herzfield & Rubin, where he worked right up to his final illness at the age of 94. Justice Evans gave his time and talent to several professional organizations, and was a long-time member and past president of the Association of Justices of the Supreme Court of the State of New York. He was a productive and respected member of that Association’s Committee on Pattern Jury Instructions, Civil, for 25 years.
Much could be written about Justice Evans’ impressive education, inspiring military service or exceptional career as an attorney and judge. However, we focus here on one aspect of Justice Evans’ remarkable judicial service: his officially published decisions. In his two and one-half decades on the bench, Justice Evans authored approximately 75 officially reported decisions (and many others that appeared in the New York Law Journal) that assisted the bar and other Judges in understanding and applying the law. Below is a brief digest of some of those decisions. Although the survey does not do justice to the scholarship demonstrated by Justice Evans’ many writings, it highlights both the broad range of topics he expounded upon and the breadth of his contributions to the development of the law.
In the area of Administrative Law, Justice Evans wrote on a court’s authority to review “administrative convenience” dismissals by administrative agencies in Avon Prods. Inc. v. State Div. of Human Rights (138 Misc.2d 466 ). In Hocevar v. Joy (107 Misc.2d 271 ), he held that a commissioner of an administrative agency has the power to correct an erroneous record of the agency even though the time for administrative appeal or a CPLR article 78 proceeding has passed, and a commissioner’s refusal to do so amounts to arbitrary and capricious abdication of authority. His decision in MFY Legal Servs. Inc. v. Toia (93 Misc.2d 147 ) reviewed the applicability of the Open Meetings Law to proceedings of a Social Services Law §365-c Medical Advisory Committee.
Justice Evans authored opinions covering myriad topics relating to civil procedure. Those opinions are cataloged below and arranged in the general chronology of the CPLR. In Brooks v. Board of Higher Ed. & Dormitory Auth. of State of New York (113 Misc.2d 494 ), Justice Evans passed on the power of the Supreme Court to transfer matters to the Court of Claims; Brooks has been cited in several cases and secondary authorities, including Haig, Commercial Litigation in New York State Courts (West N.Y. Prac. Series, 2d ed.). He concluded that the one-year period within which a plaintiff must commence an action against the Port Authority is a condition precedent to bringing the action, not merely a statute of limitations (DeLuca v. New York City Tr. Auth., 119 Misc.2d 523 ).
In City of New York v. Chemical Bank (122 Misc.2d 104 ), the Judge reviewed the “person of suitable age and discretion” requirement of deliver-and-mail service under CPLR 308(2); this decision has been cited in dozens of other officially reported decisions, as well as several treatises. In another service-of-process decision, Justice Evans grappled with the doctrine affording immunity from service of process on a nonresident witness (Zirinsky v. Zirinsky, 77 Misc.2d 954 ).
In Stellema v. Vantage Press Inc. (121 Misc.2d 1058 ), Justice Evans reviewed CPLR 902, which permits a court to alter or amend an order granting class certification, and discussed the reliance element of a federal securities fraud claim and contrasted it to the reliance element of a common law fraud claim. Stellema has been cited by numerous federal courts addressing federal securities fraud claims.
In McMillan v. Williams (116 Misc.2d 171 ), the Judge held that a guilty plea, standing alone, is not a sufficient predicate for relief under CPLR 3213, the summary judgment in lieu of complaint device. In Rivera v. Laporte (120 Misc 2d 733 ), a decision cited in 20 other officially reported cases, Justice Evans (a) reviewed a court’s duties when considering a motion for a default judgment and (b) considered the parties to whom notice of the application for a default judgment must be given.
The Judge discussed the application of the privilege against self-incrimination in the context of civil discovery proceedings, as well as the procedures a witness could utilize to raise the privilege, in Garcia v. New York City Tr. Auth. (121 Misc.2d 1012 ). In Matter of J.D. (107 Misc.2d 288 ), he discussed the physician-patient privilege in the context of a Mental Hygiene Law article 81 proceeding. In People ex rel. Oppenheimer v. Rosoff (82 Misc.2d 199 ), he analyzed Judiciary Law §774, which provides that all confinements for contempt must be reviewed at intervals of not more than 90 days.
In the realm of enforcement of judgments, Justice Evans reviewed extensively the Homestead exemption afforded by CPLR 5206 (Michaels v. Chemical Bank, 110 Misc.2d 74 ), and in Kreitzer v. Chamikles (107 Misc.2d 398 ) he held that the company that served as the liability insurer of a defendant-appellant could provide an undertaking to stay execution of a judgment pending the defendant-appellant’s appeal.
On the Constitutional Law front, the Judge rejected a challenge to the constitutionality of a City regulation requiring garages performing automobile repairs to permit City inspectors to have access to non-public areas of the garages (Amsterdam Garage v. Dept. of Consumer Affairs of City of New York, 139 Misc.2d 799 , affirmed for the reasons stated by Justice Evans 157 AD2d 460 ). He sustained, however, an objection to the constitutionality of the City’s procedure of summarily revoking building alteration permits (Tafnet Realty Corp. v. New York City Dept. of Bldgs., 116 Misc 2d 609 ). In People v. Dupree (88 Misc.2d 780 ), Justice Evans reviewed the power of a court to restrain extrajudicial statements of attorneys, parties, witnesses and court personnel.
In Abrams v. Cohen (123 Misc.2d 51 ), the Judge applied Executive Law §63(12) to enjoin an appliance repairman, who engaged in abusive litigation and deceptive practices aimed at consumers, from (1) filing any small claims action without prior application, on notice to the Attorney General, to the court; (2) instituting any action arising from his business in any improper forum; and (3) enforcing, or seeking enforcement, of any judgment obtained in an improper forum, or in the Civil Court in violation of a court order.
The Judge issued two decisions reviewing critical principles of shareholder derivative actions (Karfunkel v. USLIFE Corp., 116 Misc.2d 841 , affirmed for the reasons stated by Justice Evans 98 AD2d 628  [reviewing requirement that plaintiff in shareholder derivative suit be a shareholder of the corporate defendant]; Steinberg v. Steinberg, 106 Misc.2d 720  [discussing requirement that putative plaintiff in shareholder's derivative action demonstrate that she will fairly and adequately represent interests of other shareholders and the corporation]), both of which are cited in the venerable Fletcher Cyclopedia Law of Private Corporations. He also reviewed the power of a court considering a petition to dissolve a corporation to set aside a judgment rendered against the corporation (Matter of Schramm, 107 Misc.2d 393 ). Shifting from the for-profit corporations to the religious, in Kroth v. Congregation Kadisha, Sons of Israel (105 Misc.2d 904 ), Justice Evans discussed the “de facto religious corporation” doctrine. Kroth has been cited in numerous legal encyclopedia entries for its treatment of that doctrine.
Justice Evans spent most of his time on the bench in the civil term of Supreme Court, New York County. He did, however, have an opportunity to preside over some criminal cases. In People v. Torres (112 Misc.2d 145 ), a decision cited in a score of secondary authorities, he reviewed a trial court’s power to reevaluate a bail determination. And in People v. Dupree (88 Misc.2d 791 ), he analyzed the obligation of a member of the press to give testimony in a criminal trial regarding what the individual personally observed. Dupree has been cited by the courts of five different states.
Domestic Relations Law
In the domestic relations field, Justice Evans wrote about whether arrears in alimony could be collected by attaching the debtor-ex-husband’s wages (People ex rel Kenney v. Kenney, 76 Misc.2d 927 ). He also addressed in Kenney Domestic Relations Law §248, which permits a court to terminate spousal maintenance to an ex-wife where the ex-wife cohabitates with another man. The Judge concluded that the statute, based on its express terms, applies only to heterosexual relationships, so allegations by an ex-husband that the ex-wife was involved in a same-sex relationship do not provide a basis for terminating the ex-wife’s maintenance (see Hon. Alan D. Scheinkman, New York Law of Domestic Relations §15:21 [11 West's N.Y. Prac. Series]). In Donneson v. Donneson (76 Misc.2d 520 , affd. 43 AD2d 553 ), Justice Evans reviewed the power of a court to modify spousal and child support previously established in the parties’ separation agreement.
In Lugo v. Board of Elections of City of New York (123 Misc.2d 764 ), the Judge held that a discrepancy in the district designation between the statement of candidacy and the nominating petition is a fatal defect that disqualifies the petitioner as a candidate.
Foreign Relations Law
Justice Evans authored two opinions in Raji v. Bank Sepah-Iran treating the Foreign Sovereign Immunities Act. The first, reviewing the applicability of the Act to pre-judgment attachments (131 Misc.2d 158 ). The second, reviewing the “waiver” exception to the Act (139 Misc.2d 1026 ). In Beck v. Manufacturers Hanover Trust Co. (125 Misc.2d 771 ), the Judge discussed at length the Act of State doctrine, which precludes courts of the United States from inquiring into the validity of the public acts of a recognized foreign sovereign committed on the sovereign’s soil; Beck also addressed the contract principle of novation, and it is cited in numerous contract treatises, including Williston on Contracts.
In Federal Ins. Co. v. Capiz Shell Indus. Inc. (138 Misc.2d 903 ), Justice Evans reviewed whether the leasing of a premises constituted “alienation” of the property for the purposes of ascertaining which premises were covered by an insurance policy. In a decision cited by a dozen courts and in numerous legal treatises, Belth v. Insurance Dept. of State of New York (95 Misc.2d 18 ), he held that an insurance company’s documents consisting, among other things, of computer programs used in pricing newly issued insurance policies constituted “trade secrets” exempt from disclosure under the Freedom of Information Law.
Landlord & Tenant
In a cluster of opinions, Justice Evans discussed a number of important landlord-tenant issues; several of these opinions are cited in the principal landlord-tenant treatises in New York (Scherer and Fisher, Residential Landlord-Tenant Law in New York, Rasch’s New York Landlord and Tenant, and Finkelstein & Ferrara, Landlord and Tenant Practice in New York). In Kalimiam v. Olson (130 Misc.2d 861 ), he reviewed the doctrines of “primary jurisdiction” and “exhaustion of administrative remedies,” as well as estoppel, in an ejectment action by a landlord premised on the tenant’s alleged breach of lease. The Judge explored the principle that rent in a lease must be sufficiently certain before the lease will be enforced in Merman v. The Surrey (106 Misc.2d 941 ). He construed the word “rent” in the Rent Stabilization Code and concluded that painting services rendered by a tenant to a landlord, pursuant to an agreement between the parties, were part of the tenant’s rent (Ettinger v. New York State Div. of Hous. and Community Renewal, 139 Misc.2d 412 ). In Hutchins v. Conciliation and Appeals Bd. (125 Misc.2d 809 ), Justice Evans examined the illusory tenancy doctrine, and his definition of an “illusory tenant” was adopted by the Court of Appeals (see Matter of Badem Bldgs. v. Abrams, 70 NY2d 45 ) and the Appellate Division (see Matter of Avon Furniture Leasing Inc. v. Popolizio, 116 AD2d 280  [encouraging the bar to read Hutchins "for a most excellent and comprehensive discussion" of the development of the illusory tenancy doctrine]).
The Judge wrote two decisions regarding RPAPL 753(4), which affords a tenant a 10-day period within which to cure a breach of lease: Schuller v. D’Angelo (117 Misc.2d 528  [reviewing then-recently amended RPAPL 753(4)]) and W.T. Assoc. v. Huston (123 Misc.2d 24  [holding that Yellowstone injunction available where relief under RPAPL 753(4) is inapplicable or insufficient, and where injunctive relief is otherwise appropriate]). In Karpf v. Turtle Bay House Co. (127 Misc.2d 154 ), he reviewed the Martin Act provision prohibiting a sponsor from offering tenants discriminatory inducements in the process of converting a rental building to co-op.
In the arena of municipal law, Justice Evans produced a healthy body of decisional law. In Roth v. Cuevas (158 Misc.2d 238 ), he reviewed Election Law and Municipal Home Rule Law provisions allowing the citizenry of New York City to propose referendums, and held that the local law proposed by the referendum was a permissible supplement to an existing state law. This opinion was affirmed, without opinion, by the Appellate Division (197 AD2d 369 ) and subsequently affirmed for the reasons stated by Justice Evans (82 NY2d 791 ). Previously, the Court of Appeals affirmed, for the reasons stated by the Judge, an order holding that prior approval of the Board of Estimate was not required for an urban redevelopment plan converting rental apartments on urban renewal lands to condominiums or co-ops (Park W. Village Assoc. v. Abrams, 127 Misc.2d 372 , affd 104 AD2d 741 , affd for reasons stated by Justice Evans 65 NY2d 716 ).
With respect to CPLR article 78 matters reviewing governmental action, the Judge upheld a penalty terminating the employment of a sanitation employee who abused line-of-duty leave (Matter of Casalaspro v. Steisel, 106 Misc.2d 913 , affd for the reasons stated by Justice Evans 86 AD2d 795 ). In Benigno v. City of New York (123 Misc.2d 375 ), he held that a taxpayer could challenge, through a CPLR article 78 proceeding, a denial by the Board of Estimate of the taxpayer’s application for a discretionary redemption of real property from in rem City ownership; he noted that a taxpayer could prevail in the article 78 proceeding if he or she demonstrated that the Board exercised its discretion in an unconstitutional or illegal manner.
The Judge covered broad terrain with his writings relating to tort actions. In Le Savoy v. Harnes (127 Misc.2d 9 ), he held that the Workers’ Compensation Board was the appropriate forum for a plaintiff’s claim that medical staff of her employer failed to read properly X-rays taken of the plaintiff’s chest and therefore failed to diagnose lung cancer. Justice Evans reviewed extensively the efficacy of a covenant not to sue given to a medical services provider by a patient in Colton v. New York Hosp. (98 Misc.2d 957 ), an opinion mentioned in 40 secondary authorities. In his oft-cited treatment of the notice of claim requirement, Matter of Crespo (123 Misc.2d 862 ), he held that the Manhattan and Bronx Surface Transit Operating Authority and the New York City Transit Authority are distinct entities that must be sued in their own names and each entity must be served with a notice of claim. With respect to intentional torts, the Judge discussed Civil Rights Law § 51 (Welch v. Group W. Prod. Inc., 138 Misc.2d 856 ), prima facie tort and injurious falsehood (Andrews v. Steinberg, 122 Misc.2d 468 ). Welch and Andrews, cumulatively, have been cited over 75 times in officially reported decisions and secondary authorities.
Trusts & Estates
In Matter of Scrivani’s Estate (116 Misc.2d 204 ), Justice Evans reviewed EPTL §2-1.11, which deals with the renunciation of an inheritance; that decision has been cited in approximately 85 decisions and secondary authorities.
In conclusion, Justice Evans was a truly remarkable person and gracious man whose quick wit and smile endeared him to all he met. As a judge he used his soft-spoken charm to bring many fractious legal disputes to conclusion. Underlying that charm was a broad and deep understanding of the law, which is most evident by his legacy of published decisions.