Table of 2012 December New York Appellate Division Cases (Already Published)

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Case Name         Docket No           Slip Opinion No Case Law

Baron v Brown  2011-06780         2012 NY Slip Op 08675    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

REINALDO E. RIVERA, J.P.

RUTH C. BALKIN

JOHN M. LEVENTHAL

SYLVIA HINDS-RADIX, JJ.

2011-06780

(Index No. 15756/07)

[*1]Kathleen Baron, etc., appellant,

v

Howard Brown, etc., et al., defendants, Janice McCormack, etc., et al., respondents.

Sullivan Papain Block McGrath & Cannavo, P.C., New York,

N.Y. (Stephen C. Glasser and Susan M. Jaffe of counsel), for

appellant.

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice and wrongful death, etc., the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Molia, J.), dated June 13, 2011, as, sua sponte, in effect, directed the dismissal, as time-barred, of the cause of action alleging wrongful death insofar as asserted against the defendants Janice McCormack and South Bay Cardiovascular Associates, P.C.

ORDERED that on the Court’s own motion, the notice of appeal from so much of the order dated June 13, 2011, as, sua sponte, in effect, directed the dismissal, as time-barred, of the cause of action alleging wrongful death insofar as asserted against the defendants Janice McCormack and South Bay Cardiovascular Associates, P.C., is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CPLR 5701[c]); and it is further,

ORDERED that the order dated June 13, 2011, is reversed insofar as appealed from, on the law, with costs, and the matter is remitted to the Supreme Court, Suffolk County, for a determination on the merits of the pending motion of the defendants Janice McCormack and South Bay Cardiovascular Associates, P.C., inter alia, for summary judgment dismissing the cause of action alleging wrongful death insofar as asserted against them.

The plaintiff’s decedent died on June 9, 2005. The plaintiff commenced this action, inter alia, to recover damages for medical malpractice and wrongful death, etc., on May 24, 2007, against, among others, the defendants Janice McCormack and South Bay Cardiovascular Associates, P.C. (hereinafter together the South Bay defendants). Although the South Bay defendants raised the issue of the statute of limitations in their answer, they moved, inter alia, for summary judgment dismissing the cause of action alleging wrongful death insofar as asserted against them on the ground that they did not depart from accepted medical practice in treating the decedent. The Supreme Court, sua sponte, in effect, directed the dismissal of the wrongful death cause of action insofar as asserted against the South Bay defendants on the ground that it was time-barred, and denied their motion for summary judgment as academic.

On a motion for summary judgment, the court is limited to the issues or defenses that are the subject of the motion before the court (see Dunham v Hilco Constr. Co., 89 NY2d 425, 429-[*2]430; Quizhpe v Luvin Constr., 70 AD3d 912, 914). Therefore, the Supreme Court erred in deciding the matter based upon the statute of limitations. In any event, the cause of action alleging wrongful death was timely commenced within two years of the decedent’s death, since, at the time of her death, her cause of action sounding in medical malpractice was not time-barred (see EPTL 5-4.1[1]; Venditti v St. Catherine of Siena Med. Ctr., 98 AD3d 1035; Mikus v Rosell, 62 AD3d 674, 675; Scanzano v Horowitz, 49 AD3d 855, 856; Norum v Landau, 22 AD3d 650, 651; Murphy v Jacoby, 250 AD2d 826). The statute of limitations for medical malpractice causes of action (see CPLR 214-a) was extended by the infancy toll until two years and six months after the decedent’s 18th birthday in January 2003, to wit, until July 2005 (see CPLR 208; Henry v City of New York, 94 NY2d 275; Yang v Oceanside Union Free School Dist., 90 AD3d 649). Since, at the time of her death in June 2005, the decedent had a valid cause of action to recover damages for medical malpractice, and the cause of action alleging wrongful death was asserted within two years of the date of her death, the cause of action alleging wrongful death was timely interposed (see EPTL 5-4.1[1]; Venditti v St. Catherine of Siena Med. Ctr., 98 AD3d 1035; Mikus v Rosell, 62 AD3d at 675; Scanzano v Horowitz, 49 AD3d at 856; Norum v Landau, 22 AD3d at 651; Murphy v Jacoby, 250 AD2d 826).

As the Supreme Court denied the South Bay defendants’ motion for summary judgment as academic, we remit the matter to the Supreme Court, Suffolk County, for a determination of that motion on the merits (see Gosine v Sahabir, 91 AD3d 910, 911; Hluch v Ski Windham Operating Corp., 85 AD3d 861, 864; Hunter Sports Shooting Grounds, Inc. v Foley, 73 AD3d 702).

RIVERA, J.P., BALKIN, LEVENTHAL and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Board of Mgrs. of the Britton Condominium v C.H.P.Y. Realty Assoc.        2011-05305         2012 NY Slip Op 08676    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

PETER B. SKELOS, J.P.

RUTH C. BALKIN

THOMAS A. DICKERSON

SYLVIA HINDS-RADIX, JJ.

2011-05305

2011-10084

2011-11355

(Index No. 17732/10)

[*1]Board of Managers of the Britton Condominium, respondent,

v

C.H.P.Y. Realty Associates, appellant.

Samuel Chuang, Flushing, N.Y., for appellant.

Smith, Buss & Jacobs, LLP, Yonkers, N.Y. (Jennifer L.

Stewart and Jeffrey D. Buss of counsel), for

respondent.

DECISION & ORDER

In an action, inter alia, for a judgment declaring that the plaintiff has the right to access certain water pipes for the purpose of altering and repairing the same, the defendant appeals (1) from an order of the Supreme Court, Queens County (Weiss, J.), entered February 2, 2011, which granted the plaintiff’s motion for a preliminary injunction directing it to grant the plaintiff access to certain water pipes for the purpose of altering and repairing the same, (2), as limited by its brief, from so much of a resettled order of the same court entered September 8, 2011, as granted the plaintiff’s motion for a preliminary injunction directing it to grant the plaintiff access to certain water pipes for the purpose of altering and repairing the same, and (3) from stated portions of an order of the same court entered June 27, 2011, which, among other things, denied that branch of its motion, denominated as one for leave to renew pursuant to CPLR 2221(e), but, which was, in actuality, one for leave to reargue its opposition to the plaintiff’s prior motion for a preliminary injunction, and denied, in effect, that branch of the same motion which was to vacate the preliminary injunction pursuant to CPLR 6314.

ORDERED that the appeal from the order entered February 2, 2011, is dismissed, as that order was superseded by the resettled order entered September 8, 2011; and it is further,

ORDERED that the resettled order entered September 8, 2011, is reversed insofar as appealed from, on the law, the order entered February 2, 2011, is vacated, and the plaintiff’s motion for a preliminary injunction is denied; and it is further,

ORDERED that the appeal from so much of the order entered June 27, 2011, as denied that branch of the defendant’s motion, denominated as one for leave to renew pursuant to CPLR 2221(e), but which was, in actuality, one for leave to reargue its opposition to the plaintiff’s prior motion for a preliminary injunction is dismissed, as no appeal lies from an order denying leave to reargue; and it is further,

ORDERED that the order entered June 27, 2011, is affirmed insofar as reviewed; and [*2]it is further,

ORDERED that one bill of costs is awarded to the defendant.

The plaintiff, Board of Managers of the Britton Condominium, commenced this action against the defendant, C.H.P.Y. Realty Associates, an owner of commercial units in the condominium building, for a judgment declaring that the plaintiff has the right to enter one of those units for the purpose of accessing certain water pipes in order to alter and repair the same. In an order entered February 2, 2011, the Supreme Court granted the plaintiff’s motion for a preliminary injunction and directed the defendant to grant the plaintiff access to the subject unit for the purpose of altering and/or repairing certain water pipes. The order was resettled in an order entered September 8, 2011. Additionally, in an order entered June 27, 2011, the Supreme Court, inter alia, denied, in effect, that branch of the defendant’s motion which was to vacate the preliminary injunction pursuant to CPLR 6314.

“”To obtain a preliminary injunction, a movant must establish, by clear and convincing evidence, (1) a likelihood of success on the merits, (2) irreparable injury absent a preliminary injunction, and (3) a balancing of the equities in the movant’s favor”” (Arthur J. Gallagher & Co. v Marchese, 96 AD3d 791, 791-792; see L & M 353 Franklyn Ave., LLC v S. Land Dev., LLC, 98 AD3d 721; 91-54 Gold Rd., LLC v Cross-Deegan Realty Corp., 93 AD3d 649). “”The purpose of a preliminary injunction is to maintain the status quo pending determination of the action”” (Coinmach Corp. v Alley Pond Owners Corp., 25 AD3d 642, 643; see Automated Waste Disposal, Inc. v Mid-Hudson Waste, Inc., 50 AD3d 1072; Kelley v Garuda, 36 AD3d 593, 596).

Here, although the plaintiff may ultimately be successful in this action, the resettled order of the Supreme Court entered September 8, 2011, effectively altered the status quo and granted the plaintiff the exact relief which it sought in the complaint (see 306 Rutledge, LLC v City of New York, 90 AD3d 1026; SHS Baisley, LLC v Res Land, Inc., 18 AD3d 727, 728). Furthermore, the plaintiff failed to demonstrate that it would suffer irreparable harm in the absence of a preliminary injunction (see Trump on the Ocean, LLC v Ash, 81 AD3d 713, 716; Mar v Liquid Mgt. Partners, LLC, 62 AD3d 762, 763). Accordingly, the plaintiff’s motion for a preliminary injunction should have been denied.

The defendant’s remaining contentions either are without merit, need not be reached in light of our determination, or are improperly raised for the first time on appeal.

SKELOS, J.P., BALKIN, DICKERSON and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

“Brickhouse Masonry, LLC v Windward Bldrs., Inc.”          2011-09906         2012 NY Slip Op 08677    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

DANIEL D. ANGIOLILLO, J.P.

RUTH C. BALKIN

LEONARD B. AUSTIN

ROBERT J. MILLER, JJ.

2011-09906

(Index No. 45642/10)

[*1]Brickhouse Masonry, LLC, respondent,

v

Windward Builders, Inc., et al., defendants, North Haven Equities, LLC, appellant.

Weitzman Law Offices, LLC, New York, N.Y. (Raphael Weitzman

of counsel), for appellant.

Pinks, Arbeit & Nemeth, Hauppauge, N.Y. (Robert S. Arbeit

of counsel), for respondent.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the defendant North Haven Equities, LLC, appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Baisley, Jr., J.), dated September 7, 2011, as denied that branch of its motion which was to vacate a judgment entered March 21, 2011, upon its default in appearing or answering the complaint.

ORDERED that the order is reversed insofar as appealed from, on the law and in the exercise of discretion, with costs, that branch of the motion of the defendant and North Haven Equities, LLC, which was to vacate the judgment entered March 21, 2011, is granted, and the judgment is vacated.

Although that branch of the appellant’s motion which was to vacate the default judgment was made pursuant to CPLR 5015(a)(1), under the circumstances of this case, it may also be treated as a motion made pursuant to CPLR 317 (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr, Co., 67 NY2d 138, 142; Fleisher v Kaba, 78 AD3d 1118, 1119; Gonzalez v City of New York, 65 AD3d 569, 570; Hospital for Joint Diseases v Lincoln Gen. Ins. Co., 55 AD3d 543, 544). The appellant, which was served by delivery of process to the Secretary of State, demonstrated that it did not receive personal notice of the summons and complaint in time to defend (see Calderon v 163 Ocean Tenants Corp., 27 AD3d 410, 411; Brockington v Brookfield Dev. Corp., 308 AD2d 498; Ford v 536 E. 5th St. Equities, 304 AD2d 615). Furthermore, there is no basis to conclude that the appellant deliberately attempted to avoid notice of the action, especially since the plaintiff was aware of the appellant’s address (see Tselikman v Marvin Ct., Inc., 33 AD3d 908, 909; Hon-Kuen Lo v Gong Park Realty Corp., 16 AD3d 553; Trujillo v ATA Hous. Corp., 281 AD2d 538, 539). Indeed, the plaintiff had mailed a notice of mechanic’s lien to the appellant’s address prior to the commencement of this action (see Celifarco v Command Bus Co., 107 AD2d 785, 786). Moreover, the proof submitted by the appellant was sufficient to demonstrate a potentially meritorious defense (see CPLR 317; Georgia Malone & Co., Inc. v Rieder, 19 NY3d 511, 518; Sperry v Crompton Corp., [*2]8 NY3d 204, 215; Port Chester Elec. Constr. Corp. v Atlas, 40 NY2d 652, 655-656).

Accordingly, the Supreme Court should have granted that branch of the appellant’s motion which was to vacate the judgment entered upon its default in appearing or answering the complaint.

ANGIOLILLO, J.P., BALKIN, AUSTIN and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Burke v Carrion 2011-01912         2012 NY Slip Op 08678    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

REINALDO E. RIVERA, J.P.

DANIEL D. ANGIOLILLO

CHERYL E. CHAMBERS

SHERI S. ROMAN, JJ.

2011-01912

(Index Nos. 19658/01, 8363/03)

[*1]Judith Burke, etc., respondent,

v

Wesley . Carrion, etc., appellant, et al., defendant. (Action No. 1)

Judith Burke, etc., plaintiff,

v

Genevieve Ann Lankowicz, etc., et al., defendants. (Action No. 2)

Silverson, Pareres & Lombardi LLP (Michael A. Haskel and

Susan Haskel, Mineola, N.Y., of counsel), for appellant.

Duffy & Duffy, Uniondale, N.Y. (James N. LiCalzi of

counsel), for respondent in Action No. 1 and

plaintiff in Action No. 2.

DECISION & ORDER

In related actions, inter alia, to recover damages for medical malpractice, etc., which were joined for trial,Wesley V. Carrion, a defendant in Action No. 1, appeals from a judgment of the Supreme Court, Suffolk County (Costello, J.), entered February 4, 2011, which, upon, among other things, a jury verdict on the issue of liability finding him at fault for the injuries of the plaintiff’s decedent, upon a jury verdict on the issue of damages finding that the plaintiff sustained damages in the sums of $500,000 for past pain and suffering, $1,000,000 for future pain and suffering, $250,000 for past loss of services, and $500,000 for future loss of services, and upon the denial of his motion, inter alia, pursuant to CPLR 4404(a) to set aside the jury verdict as contrary to the weight of the evidence and for a new trial, is in favor of the plaintiff and against him in the principal sum of $1,215,173.58.

ORDERED that the judgment is modified, on the facts and in the exercise of discretion, by deleting the provisions thereof awarding damages for past and future loss of services; as so modified, the judgment is affirmed, with costs to the appellant, and the matter is remitted to the Supreme Court, Suffolk County, for a new trial on the issue of damages for past and future loss of services only, unless within 30 days after service upon the plaintiff of a copy of this decision and order, the plaintiff shall serve and file in the office of the Clerk of the Supreme Court, Suffolk County, a written stipulation consenting to reduce the award of damages for past loss of services to the principal sum of $15,000, and the award of damages for future loss of services to the principal sum of $5,000, and to the entry of an appropriate amended judgment accordingly; in the event that the plaintiff so stipulates, then the judgment, as so reduced and amended, is affirmed, without costs or disbursements.

The appellant contends that the Supreme Court should have recused itself based on [*2]certain comments it made during a prior unrelated trial in which the appellant was a named defendant. Absent a legal disqualification under Judiciary Law § 14, a court is the sole arbiter of the need for recusal, and its decision is a matter of discretion and personal conscience (see Irizarry v State of New York, 56 AD3d 613, 614). Here, contrary to the appellant’s contention, the comments cited do not demonstrate that the Supreme Court was biased and, thus, its refusal to recuse itself was not an improvident exercise of discretion (see Matter of O’Donnell v Goldenberg, 68 AD3d 1000). Morever, to the extent the appellant’s contentions concerning the Supreme Court’s alleged bias are not based on matter dehors the record, the appellant failed to demonstrate that the court exhibited bias toward him during the instant trial (see Huerter v Astoria Fed. Sav. Bank, 60 AD3d 815, 816).

The Supreme Court properly denied the appellant’s motion to preclude the plaintiff’s counsel from arguing in summation that the decedent wore diapers as a result of the appellant’s malpractice, as there was sufficient evidence presented to establish causation (see generally Razzaque v Krakow Taxi, 238 AD2d 161, 162).

The appellant’s challenges to the verdict sheet are without merit.

The awards of damages for past and future pain and suffering do not deviate materially from what would be reasonable compensation (see DiGiacomo v Cabrini Med. Ctr., 21 AD3d 1052, 1054-1055; Knight v Loubeau, 309 AD2d 579, 580-581; Stokes v New York Med. Group, 304 AD2d 449). However, with respect to the awards of damages for past and future loss of services, although legally sufficient evidence and a fair interpretation of the evidence supports the jury’s determination to award damages in that regard (see Nicastro v Park, 113 AD2d 129, 132-133), the damages are excessive to the extent indicated (see Stanisich v New York City Tr. Auth., 73 AD3d 737, 738; Wallace v Stonehenge Group, Ltd., 33 AD3d 789, 790; Becker v Woods, 24 AD3d 706, 707).

In light of our determination, the appellant’s contention that the award of damages for future loss of services must be reduced in accordance with CPLR 5035 (repealed by L 2003, ch 86, § 3) is academic since, in the event the plaintiff stipulates to a reduction of the award of damages for future loss of services, the award is below the lump sum threshold of $250,000 (see former CPLR 5035; see also Stinton v Robin’s Wood, Inc., 45 AD3d 203, 210-211).

The appellant’s remaining contentions are unpreserved for appellate review, as he either failed to object or did not object on the grounds now raised on appeal.

RIVERA, J.P., ANGIOLILLO, CHAMBERS and ROMAN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Castle v Bawuah               2011-09798         2012 NY Slip Op 08679    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

PETER B. SKELOS, J.P.

RUTH C. BALKIN

CHERYL E. CHAMBERS

ROBERT J. MILLER, JJ.

2011-09798

(Index No. 1650/11)

[*1]Marion Castle, et al., plaintiffs-respondents,

v

Osei Bawuah, defendant-respondent, Marie A. Dorsainville, et al., appellants.

Verrill & Associates, Jericho, N.Y. (Thomas Torto and Jason

Levine of counsel), for appellants.

Hannum Feretic Prendergast & Merlino, LLC, New York, N.Y.

(Barbara J. Apostol of counsel), for

defendant-respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendants Marie A. Dorsainville and Jose Dorsainville appeal from an order of the Supreme Court, Queens County (Grays, J.), dated September 12, 2011, which, in effect, granted that branch of the plaintiffs’ motion which was for summary judgment on the issue of liability against them and granted the cross motion of the defendant Osei Bawuah for summary judgment dismissing the complaint and all cross claims insofar as asserted against him.

ORDERED that the appeal from so much of the order as granted that branch of the cross motion of the defendant Osei Bawuah which was for summary judgment dismissing the complaint insofar as asserted against him is dismissed, as the appellants are not aggrieved by that portion of the order (see CPLR 5511; Mixon v TBV, Inc., 76 AD3d 144, 156); and it is further,

ORDERED that the order is reversed insofar as reviewed, on the law, that branch of the plaintiffs’ motion which was for summary judgment on the issue of liability against the appellants is denied, and that branch of the cross motion of the defendant Osei Bawuah which was for summary judgment dismissing all cross claims insofar as asserted against him is denied; and it is further,

ORDERED that one bill of costs is awarded to the appellants, payable by the plaintiffs and the defendant Osei Bawuah.

This action arises from an automobile accident involving three vehicles which were traveling within the same lane of traffic. With respect to that branch of the plaintiffs’ motion which was for summary judgment on the issue of liability against the defendants Marie A. Dorsainville and Jose Dorsainville (hereinafter together the appellants), the plaintiffs established their prima facie entitlement to judgment as a matter of law by submitting the affidavit of the plaintiff driver, wherein she stated that she was fully stopped at a red light when her vehicle was struck in the rear (see Piltser v Donna Lee Mgt. Corp., 29 AD3d 973; Bustillo v Matturro, 292 AD2d 554; Jeremic v Tong, 283 AD2d 461). With respect to that branch of the cross motion of the defendant Osei Bawuah which [*2]was for summary judgment dismissing all cross claims insofar as asserted against him, Bawuah established his prima facie entitlement to judgment as a matter of law by demonstrating that he stopped his vehicle behind the plaintiffs’ stopped vehicle, and that he only struck the plaintiffs’ vehicle after his vehicle was struck by the appellants’ vehicle (see Perez v Roberts, 91 AD3d 620, 621; Hauser v Adamov, 74 AD3d 1024, 1025; Franco v Breceus, 70 AD3d 767).

In opposition to the motion and cross motion, the appellants submitted evidence sufficient to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557). The appellant driver, Marie A. Dorsainville, averred that the Bawuah vehicle struck the plaintiffs’ vehicle in the rear before the appellants’ vehicle struck the rear of the Bawuah vehicle. The appellant driver also averred that, after she struck the Bawuah vehicle, the Bawuah vehicle did not strike the plaintiffs’ vehicle again. The appellants also submitted a copy of the police accident report, which stated that, according to Bawuah, the plaintiffs’ vehicle stopped short and caused his vehicle to collide with it. The Supreme Court should have considered the police accident report submitted in opposition, since it did not provide the sole basis for the denial of summary judgment, and there was an acceptable excuse for the failure to tender the evidence in admissible form (see Phillips v Kantor & Co., 31 NY2d 307; Merriman v Integrated Bldg. Controls, Inc., 84 AD3d 897, 899; Moffett v Gerardi, 75 AD3d 496; Zuilkowsk v Sentry Ins., 114 AD2d 453, 454).

The parties presented conflicting accounts as to how the incident occurred. Accordingly, the Supreme Court should have denied that branch of the plaintiffs’ motion which was for summary judgment on the issue of liability against the appellants, and should have denied that branch of Bawuah’s cross motion which was for summary judgment dismissing all cross claims insofar as asserted against him (see Polanco-Espinal v City of New York, 84 AD3d 914; Geschwind v Hoffman, 285 AD2d 448).

SKELOS, J.P., BALKIN, CHAMBERS and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Cenzon-Decarlo v Mount Sinai Hosp.      2011-02282         2012 NY Slip Op 08680    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

WILLIAM F. MASTRO, J.P.

PETER B. SKELOS

ANITA R. FLORIO

THOMAS A. DICKERSON, JJ.

2011-02282

2011-07705

(Index No. 10237/10)

[*1]Catherina Lorena Cenzon-Decarlo, appellant,

v

Mount Sinai Hospital, etc., et al., respondents.

Ruta Soulios & Stratis LLP, New York, N.Y. (Joseph A. Ruta, and

Matthew S. Bowman, pro hac vice, of counsel), for appellant.

Proskauer Rose LLP, New York, N.Y. (Bettina B. Plevan and

Harris M. Mufson of counsel), for

respondents.

DECISION & ORDER

In an action, inter alia, to recover damages for employment discrimination on the basis of religion and unlawful retaliation in violation of Executive Law § 296 and Administrative Code of the City of New York § 8-107, the plaintiff appeals, as limited by her brief, from so much of (1) an order of the Supreme Court, Kings County (Bayne, J.), dated December 7, 2010, as granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the seventh cause of action and, pursuant to CPLR 3211(c), converted those branches of the defendants’ motion which were pursuant to CPLR 3211(a)(7) to dismiss the first, third, fourth, fifth, sixth, and eighth causes of action into a motion for summary judgment dismissing those causes of action and directed the parties to provide the court with additional submissions in support of, or in opposition to, the converted motion within 30 days of entry of the order, and (2) an order of the same court dated June 17, 2011, as granted the defendants’ converted motion for summary judgment dismissing the first, third, fourth, fifth, sixth, and eighth causes of action.

ORDERED that the orders are affirmed insofar as appealed from, with one bill of costs.

The plaintiff, a registered nurse and practicing member of the Roman Catholic church, commenced the instant action, inter alia, to recover damages for employment discrimination on the basis of religion in violation of Executive Law § 296(1)(a) and Administrative Code of the City of New York § 8-107(1)(a), unlawful retaliation in violation of Executive Law § 296(7) and Administrative Code § 8-107(7), discrimination in violation of the New York Constitution, article I, § 11 and Civil Rights Law § 79-i, and intentional infliction of emotional distress, in connection with an incident during which the defendants, including the plaintiff’s employer and superiors, allegedly forced her to assist with the performance of an abortion despite her known religious objections to doing so.

Prior to joinder of issue, the defendants moved pursuant to CPLR 3211(a)(7) to dismiss the complaint. In the first order appealed from, the Supreme Court, among other things, granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss [*2]the seventh cause of action alleging discrimination in violation of Civil Rights Law § 79-i, and converted those branches of the defendants’ motion which were to dismiss the first, third, fourth, fifth, sixth, and eighth causes of action into a motion for summary judgment dismissing those causes of action and directed the parties to provide the court with additional submissions in support of, or in opposition to, the converted motion within 30 days of entry of the order. In the second order appealed from, upon the parties’ additional submissions, the Supreme Court, inter alia, granted the defendants’ converted motion for summary judgment dismissing the first, third, fourth, fifth, sixth, and eighth causes of action.

Contrary to the plaintiff’s contention, the Supreme Court correctly determined that there is no private right of action under Civil Rights Law § 79-i (see Larson v Albany Med. Ctr., 173 Misc 2d 508, mod 252 AD2d 936; see also Whiting v Incorporated Vil. of Old Brookville, 8 F Supp 2d 202, 212 [ED NY], affd 4 Fed Appx 11 [2d Cir]; Poughkeepsie Police Benevolent Assn.v City of Poughkeepsie, 184 AD2d 501, 501; Simpson v New York City Tr. Auth., 112 AD2d 89, 90-91, affd 66 NY2d 1010; Carpenter v City of Plattsburgh, 105 AD2d 295, 299, affd 66 NY2d 791; see generally Uhr v East Greenbush Cent. School Dist., 94 NY2d 32, 40; Mark G. v Sabol, 93 NY2d 710, 720; cf. Executive Law § 297[9]; Civil Rights Law §§ 40-d, 51). Accordingly, the court properly granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the seventh cause of action.

Moreover, contrary to the plaintiff’s contentions, under the circumstances presented here, the Supreme Court did not err in determining the defendants’ converted motion for summary judgment without affording her the benefit of discovery (see Rovello v Orofino Realty Co., 40 NY2d 633, 635; Nassau Diagnostic Imaging & Radiation Oncology Assoc. v Winthrop-University Hosp., 197 AD2d 563, 563; cf. Mihlovan v Grozavu, 72 NY2d 506, 508; Vecere v Estate of Arnold Berle, 91 AD3d 637, 637-638).

Turning to the merits of the defendants’ converted summary judgment motion, first, contrary to the plaintiff’s contention, the Supreme Court properly granted those branches of the motion which were for summary judgment dismissing the third and fifth causes of action, which alleged discrimination in violation of Executive Law § 296(1)(a) and Administrative Code § 8-107(1)(a). With respect to the Executive Law § 296(1)(a) claim, the defendants made a prima facie showing that the plaintiff did not suffer an adverse employment action (see Burlington Industries, Inc. v Ellerth, 524 US 742, 761; Honey v County of Rockland, 200 F Supp 2d 311, 320; Matter of Block v Gatling, 84 AD3d 445, 445; see generally Furfero v St. John’s Univ., 94 AD3d 695, 696-697) and, in any event, offered legitimate, nondiscriminatory reasons for their challenged actions and demonstrated that there are no material issues of fact as to whether those explanations were pretextual (see Furfero v St. John’s Univ., 94 AD3d at 697). In opposition to this showing, the plaintiff failed to raise a triable issue of fact as to whether she suffered an adverse employment action and whether the reasons proffered by the defendants for their challenged actions were merely pretextual (see Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305; Bailey v New York Westchester Sq. Med. Ctr., 38 AD3d 119, 123; see also Melman v Montefiore Med. Ctr., 98 AD3d 107, 120-121; Ioele v Alden Press, 145 AD2d 29, 37; Mejia v Roosevelt Is. Med. Assoc., 31 Misc 3d 1206[A], 2011 NY Slip Op 50506[U], *4, affd 95 AD3d 570; cf. generally Brathwaite v Frankel, 98 AD3d 444). With respect to the plaintiff’s Administrative Code § 8-107(1)(a) claim, the defendants made a prima facie showing that there is no evidentiary route that could allow a jury to believe that discrimination played a role in their challenged actions (see Furfero v St. John’s Univ., 94 AD3d at 697; Bennett v Health Mgt. Sys., Inc., 92 AD3d 29, 39-40, 45). In opposition to this showing, the plaintiff failed to raise a triable issue of fact as to whether the defendants’ proffered reasons for their challenged actions were false (see Furfero v St. John’s Univ., 94 AD3d at 697; Bennett v Health Mgt. Sys. Inc., 92 AD3d at 45; see also Melman v Montefiore Med. Ctr., 98 AD3d at 120-121).

Furthermore, the Supreme Court properly granted those branches of the defendants’ converted motion which were for summary judgment dismissing the fourth and sixth causes of action, which alleged retaliation in violation of Executive Law § 296(7) and Administrative Code § 8-107(7). With respect to the plaintiff’s Executive Law § 296(7) claim, in opposition to the [*3]defendants’ prima facie showing that the plaintiff did not participate in a protected activity by opposing discrimination and, even assuming that she did participate in a protected activity, that the defendants did not subject her to any adverse action (see Fletcher v Dakota, Inc., 99 AD3d 43, 51-53), the plaintiff failed to raise a triable issue of fact (see Burlington N. & S. F. R. Co. v White, 548 US 53, 68-69; Forrest v Jewish Guild for the Blind, 3 NY3d at 313; Melman Montefiore Med. Ctr., 98 AD3d at 126-127; Forrest v Jewish Guild for the Blind, 309 AD2d 546, 558, affd 3 NY3d 295; cf. Knight v City of New York, 303 F Supp 2d 485, 496 [SD NY], affd 147 Fed Appx 221 [2d Cir]; Fletcher v Dakota, Inc., 99 AD3d at 51-53). With respect to the plaintiff’s Administrative Code § 8-107(7) claim, in opposition to the defendants’ prima facie showing that the plaintiff did not participate in a protected activity by opposing discrimination and, even assuming that she did participate in a protected activity, that the defendants did not take any action that disadvantaged her (see Fletcher v Dakota, Inc., 99 AD3d at 51-53), the plaintiff failed to raise a triable issue of fact (cf. Albunio v City of New York, 16 NY3d 472, 479; Fletcher v Dakota, Inc., 99 AD3d at 51-53).

Contrary to the plaintiff’s contention, the Supreme Court properly granted that branch of the defendants’ converted motion which was for summary judgment dismissing the eighth cause of action, which alleged intentional infliction of emotional distress. In opposition to the defendants’ prima facie showing that they did not engage in extreme and outrageous conduct (see Howell v New York Post Co., 81 NY2d 115, 121-122), the plaintiff failed to raise a triable issue of fact.

Moreover, the Supreme Court properly granted that branch of the defendants’ converted motion which was for summary judgment dismissing the first cause of action, which alleged discrimination in violation of the New York Constitution, article I, § 11 (see Brown v State of New York, 89 NY2d 172, 190; People v Kern, 75 NY2d 638, 651, cert denied 498 US 824).

The plaintiff’s remaining contentions are without merit.

MASTRO, J.P., SKELOS, FLORIO and DICKERSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

“Chabla v 72 Greenpoint, LLC”    2011-07625         2012 NY Slip Op 08681    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

PETER B. SKELOS, J.P.

RUTH C. BALKIN

CHERYL E. CHAMBERS

ROBERT J. MILLER, JJ.

2011-07625

(Index No. 24898/08)

[*1]Manuel Chabla, respondent,

v

72 Greenpoint, LLC, et al., appellants (and a third-party action).

Milber, Makris Plousadis & Seiden, LLP, Woodbury, N.Y. (Lorin

A. Donnelly of counsel), for appellants.

Pena & Kahn, PLLC, Bronx, N.Y. (Diane Welch Bando of

counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Schmidt, J.), dated April 27, 2011, which granted the plaintiff’s motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1).

ORDERED that the order is affirmed, with costs.

The plaintiff allegedly was injured when he fell approximately 15 feet from a scaffold to the ground. The plaintiff testified at his deposition that he was descending a two-story high scaffold using the metal cross-pieces of the scaffolding’s frame. After reaching the scaffolding’s first level, the plaintiff rested his foot on a piece of platform planking that extended approximately eight inches beyond the scaffolding’s frame when the planking broke, causing him to fall to the ground.

To prevail on a cause of action alleging a violation of Labor Law § 240(1), a plaintiff must establish that the statute was violated, and that the violation was a proximate cause of his or her injuries (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 287). Here, the plaintiff made a prima facie showing establishing his entitlement to judgment as a matter of law by demonstrating that when he stepped on the edge of one of the planks of the scaffolding, it failed to support his weight and broke, causing him to fall.

In opposition to this prima facie showing, the defendants failed to raise a triable issue of fact as to whether the plaintiff’s actions were the sole proximate cause of his injuries (see Gallagher v New York Post, 14 NY3d 83, 88; Dwyer v Central Park Studios, Inc., 98 AD3d 882, 884; Durmiaki v International Bus. Machs. Corp., 85 AD3d 960, 961; Alvarez v 1407 Broadway Real Estate LLC, 80 AD3d 524, 524-525). Accordingly, the Supreme Court properly granted the plaintiff’s motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1). [*2]

SKELOS, J.P., BALKIN, CHAMBERS and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Corletta v Fischer             2012-01107         2012 NY Slip Op 08682    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

REINALDO E. RIVERA, J.P.

CHERYL E. CHAMBERS

L. PRISCILLA HALL

PLUMMER E. LOTT, JJ.

2012-01107

(Index No. 1906/11)

[*1]Charles Corletta IV, etc., respondent,

v

Eva Fischer, et al., appellants, et al., defendants.

Pilkington & Leggett, P.C., White Plains, N.Y. (Michael N.

Romano of counsel), for appellants Eva Fischer, Anupama Pani, and

Steven A. Klein, M.D., P.C., doing business as Healthmed Plus.

Feldman, Kleidman & Coffey, LLP, Fishkill, N.Y. (Craig A.

Burgess of counsel), for appellants

Jayesh R. Mehta, Brijender Batra, and

Pulmonary Consultants, P.C., doing

business as Pulmonary Consultants.

O’Connor, McGuiness, Conte, Doyle, Oleson, Watson &

Loftus, LLP, White Plains, N.Y.

(Montgomery Effinger of counsel), for

appellant Good Samaritan Hospital of

Suffern, N.Y., Inc.

Meagher & Meagher, P.C., White Plains, N.Y. (Bruce W.

Slane and Christopher Meagher of

counsel), for respondent.

DECISION & ORDER

In an action to recover damages for medical malpractice and wrongful death, the defendants Jayesh R. Mehta, Brijender Batra, and Pulmonary Consultants, P.C., doing business as Pulmonary Consultants, appeal, as limited by their brief, from so much of an order of the Supreme Court, Rockland County (Walsh II, J.), dated December 21, 2011, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them, the defendant Good Samaritan Hospital of Suffern, N.Y., Inc., separately appeals, as limited by its brief, from so much of the same order as denied its motion for summary judgment dismissing the complaint insofar as asserted against it, and the defendants Eva Fischer, Anupama Pani, and Steven A. Klein, M.D., P.C., doing business as Healthmed Plus, separately appeal, as limited by their brief, from so much of the same order as denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof denying the motion of the defendant Good Samaritan Hospital of Suffern, N.Y., Inc., for summary judgment dismissing the complaint insofar as asserted against it, and substituting therefor a provision granting the motion, and (2) by deleting the provision thereof denying that branch of the motion of the defendants Eva Fischer, Anupama Pani, and Steven A. Klein, M.D., P.C., doing business as Healthmed Plus which was for summary judgment dismissing the complaint insofar as [*2]asserted against the defendant Eva Fischer, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The Supreme Court properly denied the motion of the defendants Jayesh R. Mehta, Brijender Batra, and Pulmonary Consultants, P.C., doing business as Pulmonary Consultants, for summary judgment dismissing the complaint insofar as asserted against them. In opposition to those defendants’ prima facie showing of their entitlement to judgment as a matter of law, the plaintiff raised a triable issue of fact (see Howard v Kennedy, 60 AD3d 905, 906).

However, the Supreme Court erred in denying the motion of the defendant Good Samaritan Hospital of Suffern, N.Y., Inc. (hereinafter the Hospital), for summary judgment dismissing the complaint insofar as asserted against it. “”In general, a hospital cannot be held vicariously liable for the negligence of a private attending physician”” (Martinez v La Porta, 50 AD3d 976, 977; see Hill v St. Clare’s Hosp., 67 NY2d 72, 79). Further, a hospital “”cannot be held concurrently liable with such a physician unless its employees commit independent acts of negligence or the attending physician’s orders are contraindicated by normal practice”” (Cerny v Williams, 32 AD3d 881, 883; see Sela v Katz, 78 AD3d 681, 683; Martinez v La Porta, 50 AD3d at 977).

The Hospital established its prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff’s decedent was referred to the Hospital by her private physician, and that the treatment of the plaintiff’s decedent was performed at the Hospital by private attending physicians (see Gardner v Brookdale Hosp. Med. Ctr., 73 AD3d 1124, 1124-1125). Furthermore, the Hospital demonstrated, prima facie, that the Hospital staff did not commit any independent acts of negligence, and that no orders given by any of the private attending physicians were contraindicated by normal practice. In opposition, the plaintiff failed to raise a triable issue of fact (see Schultz v Shreedhar, 66 AD3d 666, 666-667).

The Supreme Court also erred in denying that branch of the motion of the defendants Steven A. Klein, M.D., P.C., doing business as Healthmed Plus (hereinafter Healthmed Plus), Eva Fischer, and Anupama Pani (hereinafter collectively the Healthmed defendants), which was for summary judgment dismissing the complaint insofar as asserted against Fischer. In opposition to the Healthmed defendants’ prima facie showing, the plaintiff failed to raise a triable issue of fact as to the liability of Fischer (see Ballek v Aldana-Bernier, _____ AD3d _____, 2012 NY Slip Op 07946 [2d Dept 2012]; Bellafiore v Ricotta, 83 AD3d 632, 633; Soto v Andaz, 8 AD3d 470, 471). However, the plaintiff raised triable issues of fact as to the liability of Pani and Healthmed Plus (see Zuckerman v City of New York, 49 NY2d 557). Therefore, the Supreme Court properly denied that branch of the Healthmed defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against Pani and Healthmed Plus.

The parties’ remaining contentions either need not be addressed in light of our determination or are without merit.

RIVERA, J.P., CHAMBERS, HALL and LOTT, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Daly v Finley       2012-04961         2012 NY Slip Op 08683    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

WILLIAM F. MASTRO, J.P.

PLUMMER E. LOTT

SHERI S. ROMAN

JEFFREY A. COHEN, JJ.

2012-04961

(Index No. 5755/09)

[*1]Nicholas Daly, et al., respondents,

v

Mary Ellen F. Finley, appellant.

Shayne, Dachs, Corker, Sauer & Dachs, LLP, Mineola, N.Y.

(Norman H. Dachs and Jonathan A. Dachs of counsel), for appellant.

Joseph B. Fruchter, Hauppauge, N.Y. (Mitchell Dranow of

counsel), for respondent Lee Daly.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Pitts, J.), entered April 17, 2012, which denied her motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendant’s motion for summary judgment dismissing the complaint is granted.

On the evening of March 10, 2006, the defendant hosted a party for her daughter’s 21st birthday at the defendant’s house in Yaphank. The plaintiff Lee Daly (hereinafter Lee) and his brother, the plaintiff Nicholas Daly (hereinafter Nicholas), were not invited to the party but accompanied an invited guest, the nonparty David Cholten, to the house. Shortly after arriving at the party, Lee encountered the nonparty Gary J. Whitbeck in the basement of the house. Several months before the party, a physical altercation had occurred involving Cholten, Whitbeck, and Lee. Lee went upstairs to inform Cholten that Whitbeck was at the party. Whitbeck and his friends followed Lee upstairs, and a verbal exchange with raised voices between Lee, Cholten, and Whitbeck began. Upon hearing the exchange, the defendant told everyone to leave the house. Whitbeck and his friends left the house first, while the plaintiffs and their friends remained inside. Shortly thereafter, Nicholas left the house to get the plaintiffs’ car. He was approached by a group of individuals who allegedly threatened him. Lee came out of the house to assist Nicholas, and as Lee was walking toward Nicholas, Whitbeck approached Lee from behind and hit him on the side of the head with a bottle.

The plaintiffs commenced this action to recover damages for personal injuries, alleging common-law negligence. The Supreme Court denied the defendant’s motion for summary judgment dismissing the complaint, concluding that the defendant failed to make a prima facie showing of entitlement to judgment as a matter of law and that triable issues of fact remained regarding the incident. The defendant appeals.

A property owner has a duty to act in a reasonable manner to prevent harm to those on his or her premises, which includes a duty to control the conduct of persons on his or her premises [*2]when he or she has the opportunity to control such conduct, and is reasonably aware of the need to do so (see D’Amico v Christie, 71 NY2d 76, 85; Nelson v Neng, 297 AD2d 313; Kern v Ray, 283 AD2d 402; Guercia v Carter, 274 AD2d 553).

Here, the defendant made a prima facie showing of entitlement to judgment as a matter of law by submitting, inter alia, her own affidavit and an executed transcript of Lee’s deposition. These submissions demonstrate that the defendant was unaware that the plaintiff, Lee, and Whitbeck had engaged in a physical altercation prior to the night of the subject incident, or that Whitbeck had been drinking or intoxicated on the night of the incident. The defendant, upon hearing these individuals argue, asked them to leave the house. It is uncontested that Whitbeck and his group left the house, while the plaintiffs were permitted to remain inside until they deemed it safe to leave. The defendant also called the 911 emergency telephone number in a further effort to defuse the situation. The assault happened suddenly when Lee exited the house, while the defendant remained inside. Based on these uncontested facts, the defendant met her prima facie burden by demonstrating that she did not have the opportunity or the ability to control the conduct of Whitbeck (see Afanador v Coney Bath, LLC, 91 AD3d 683, 684; Kiely v Benini, 89 AD3d 807, 809; Nelson v Neng, 297 AD2d 313; Kern v Ray, 283 AD2d 402; Guercia v Carter, 274 AD2d 553). In opposition, the plaintiffs failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557).

Accordingly, the Supreme Court should have granted the defendant’s motion for summary judgment dismissing the complaint.

MASTRO, J.P., LOTT, ROMAN and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Davis-Hassan v Siad         2012-06328         2012 NY Slip Op 08684    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

REINALDO E. RIVERA, J.P.

THOMAS A. DICKERSON

JOHN M. LEVENTHAL

PLUMMER E. LOTT, JJ.

2012-06328

(Index No. 103964/08)

[*1]Kerry A. Davis-Hassan, respondent,

v

Mufeed O. Siad, appellant.

Robert P. Tusa (Sweetbaum & Sweetbaum, Lake Success, N.Y.

[Marshall D. Sweetbaum], of counsel), for appellant.

Frank J. Dito, Jr., Staten Island, N.Y., for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Richmond County (Fusco, J.), dated April 23, 2012, which denied that branch of his motion which was for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.

ORDERED that the order is affirmed, with costs.

The defendant met his prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). The defendant submitted competent medical evidence establishing, prima facie, that the alleged injuries to the cervical and lumbar regions of the plaintiff’s spine did not constitute serious injuries within the meaning of Insurance Law § 5102(d) (see Fudol v Sullivan, 38 AD3d 593, 594), and that the plaintiff did not sustain a serious injury under the 90/180-day category of Insurance Law § 5102(d) (see Richards v Tyson, 64 AD3d 760, 761).

In opposition, however, the plaintiff submitted evidence raising a triable issue of fact as to whether she sustained serious injuries to the cervical and lumbar regions of her spine (see Perl v Meher, 18 NY3d 208, 218-219). Thus, the Supreme Court properly denied that branch of the defendant’s motion which was for summary judgment dismissing the complaint.

We have not considered the defendant’s remaining contention, regarding a gap in treatment, since it was improperly raised for the first time in his reply papers, and not considered by the Supreme Court (see Tadesse v Degnich, 81 AD3d 570, 570; see also Petito v City of New York, 95 AD3d 1095, 1095).

RIVERA, J.P., DICKERSON, LEVENTHAL and LOTT, JJ., concur. [*2]

ENTER:

Aprilanne Agostino

Clerk of the Court”

DiGeronimo v Fuchs       2011-08304         2012 NY Slip Op 08685    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

PETER B. SKELOS, J.P.

DANIEL D. ANGIOLILLO

THOMAS A. DICKERSON

L. PRISCILLA HALL, JJ.

2011-08304

(Index No. 101540/06)

[*1]Nancy DiGeronimo, appellant,

v

Allen Fuchs, etc., et al., respondents. Joseph M. Lichtenstein, P.C., Mineola, N.Y., for appellant.

Amabile & Erman, P.C., Staten Island, N.Y. (Irene P. Ziegler of

counsel), for respondent Allen Fuchs.

Shaub Ahmuty Citrin & Spratt, LLP, Lake Success, N.Y.

(Christopher Simone and Scott M. Fusaro of

counsel), for respondent Staten Island

University Hospital.

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals, as limited by her notice of appeal and brief, from so much of an order of the Supreme Court, Richmond County (Maltese, J.), dated August 4, 2011, as granted those branches of the separate motions of the defendants Allen Fuchs and Staten Island University Hospital which were for summary judgment dismissing the cause of action to recover damages for medical malpractice insofar as asserted against each of those defendants.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.

When the plaintiff became pregnant with her second child, she sought medical treatment from the defendants Allen Fuchs, an obstetrician and gynecologist, and Staten Island University Hospital (hereinafter SIUH). In accordance with her religious beliefs as a Jehovah’s Witness, the plaintiff had previously signed a health care proxy indicating that she “”absolutely, unequivocally and resolutely refused”” various forms of blood transfusions, including homologous blood transfusions, i.e., the transfer of another person’s blood into her body, stored autologous blood transfusions, i.e., the transfer of her own stored blood back into her body, and nonstored autologous blood transfusions, i.e., transfusions made possible through the use of intraoperative or postoperative blood salvage techniques which involve the contemporaneous recovery and reinfusion of blood lost during or after surgery which has not been stored.

Immediately following the delivery of her baby at SIUH by Fuchs, the plaintiff began experiencing substantial blood loss. When the hemorrhaging could not be stopped by less definitive measures, the plaintiff underwent a hysterectomy in order to remove her uterus, which was the source of the bleeding. After being advised by Fuchs that she would need to accept a blood transfusion in order to survive due to the amount of blood which had been lost following the delivery, the plaintiff allegedly nodded in agreement. The plaintiff’s husband, acting as her healthcare proxy, also signed a consent to the blood transfusion. A homologous blood transfusion [*2]was administered and the plaintiff recovered without further incident.

The plaintiff commenced the instant action, inter alia, to recover damages for medical malpractice, alleging, among other things, that the defendants deviated from accepted standards of medical care in proceeding with a vaginal delivery, rather than a cesarean section, and that such deviation was the proximate cause of her hemorrhaging, and her need for a hysterectomy and blood transfusion.

The defendants SIUH and Fuchs separately moved for summary judgment dismissing the complaint insofar as asserted against each of them, submitting, among other things, expert affidavits which opined that it was not a departure from accepted standards of care to proceed with a vaginal delivery, since the plaintiff’s sonogram results indicated that the placenta had migrated during the course of the pregnancy to a position where a cesarean section was no longer medically indicated. The experts further opined that the postpartum hemorrhaging experienced by the plaintiff was caused by a condition known as placenta increta, where the placenta attaches deeper than normal into the uterine wall and causes bleeding after detachment from the uterus. The defendants also submitted a copy of the consent form, signed by the plaintiff’s husband as her healthcare proxy, agreeing to the blood transfusion.

The plaintiff opposed the defendants’ respective motions for summary judgment, submitting, among other things, her own expert affidavits which opined that it was a departure from accepted standards of medical care not to proceed with a cesarean section because the plaintiff’s sonogram results showed that the placenta had not migrated to a position where a vaginal delivery was indicated, and because the medical records showed that dilation had arrested during the course of the attempted vaginal delivery, requiring an immediate cesarean section. The plaintiff’s expert opined that the failure to proceed with a cesarean section was the proximate cause of the hemorrhaging, and the need for a hysterectomy and blood transfusion.

The Supreme Court granted the separate motions of SIUH and Fuchs for summary judgment dismissing the complaint insofar as asserted against each of them. The Supreme Court concluded, among other things, that although the plaintiff may have suffered emotional distress as a result of the blood transfusion, which was received in contravention to her religious beliefs, she failed to plead a legally recognized injury in the context of a medical malpractice action, since the transfusion was beneficial in nature and saved her life. The plaintiff appeals from so much of the order as granted those branches of the defendants’ separate motions which were for summary judgment dismissing the cause of action to recover damages for medical malpractice insofar as asserted against each of them.

Contrary to the determination of the Supreme Court, the emotional distress damages purportedly suffered by the plaintiff as a result of the blood transfusion, which allegedly became necessary because of the defendants’ malpractice, are compensable in an action to recover damages for medical malpractice. “”All there need be to recover for emotional injury here is breach of a duty owing from [the defendants] to [the] plaintiff that results directly in emotional harm, and evidence sufficient to guarantee the genuineness of the claim”” (Salandy v Bryk, 55 AD3d 147, 154-155; see Ornstein v New York City Health & Hosps. Corp., 10 NY3d 1, 6; Garcia v Lawrence Hosp., 5 AD3d 227, 228). “”[I]nasmuch as the plaintiff has alleged from the outset that receiving a transfusion would violate her religious beliefs as a Jehovah’s Witness, the record contains a sufficient guarantee that her claim of having suffered emotional distress as a result of the transfusion is genuine”” (Salandy v Bryk, 55 AD3d at 155).

Notwithstanding this error, the Supreme Court properly granted, albeit on different grounds, those branches of the separate motions of the defendants which were for summary judgment dismissing the plaintiff’s cause of action to recover damages for medical malpractice insofar as asserted against each of them. “”In order to establish the liability of a physician for medical malpractice, a plaintiff must prove that the physician deviated or departed from accepted community standards of practice, and that such departure was a proximate cause of the plaintiff’s injuries”” (Stukas v Streiter, 83 AD3d 18, 23). Accordingly, “”[a] physician moving for summary judgment [*3]dismissing a complaint alleging medical malpractice must establish, prima facie, either that there was no departure or that any departure was not a proximate cause of the plaintiff’s injuries”” (Gillespie v New York Hosp. Queens, 96 AD3d 901, 902; Faicco v Golub, 91 AD3d 817, 818; Roca v Perel, 51 AD3d 757, 758-759). “”Once a defendant physician has made such a showing, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact, but only as to the elements on which the defendant met the prima facie burden”” (Gillespie v New York Hosp. Queens, 96 AD3d at 902 [citations omitted]; see Stukas v Streiter, 83 AD3d at 30). “”Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions”” (Feinberg v Feit, 23 AD3d 517, 519; see Shields v Baktidy, 11 AD3d 671, 672). Such conflicting expert opinions will raise credibility issues which can only be resolved by a jury (see Roca v Perel, 51 AD3d at 759; see Feinberg v Feit, 23 AD3d at 519).

Here, the defendants demonstrated their prima facie entitlement to judgment as a matter of law by submitting evidence establishing that they did not depart from good and accepted practice, and that, in any event, any departure was not a proximate cause of the alleged injuries (see Lau v Wan, 93 AD3d 763, 765; Rodriguez v New York City Health & Hosps. Corp., 245 AD2d 174). In opposition to the defendants’ prima facie showing, the plaintiff failed to raise a triable issue of fact. Although the plaintiff’s expert opined that the defendants departed from accepted standards of medical care in failing to perform a cesarean section based on the location of the placenta at the time of delivery, he acknowledged that he never reviewed the sonogram films upon which his opinion was based. Furthermore, although he opined that the results of the pathological tests showing placenta increta were incorrect, he acknowledged that he never examined the pathological specimens. In this regard, and in others, the expert affidavits submitted by the plaintiff were conclusory, speculative, and without basis in the record (see Lahara v Auteri, 97 AD3d 799; Lau v Wan, 93 AD3d at 765; Ellis v Eng, 70 AD3d 887). Accordingly, the plaintiff failed to raise a triable issue of fact, and the Supreme Court properly granted those branches of the defendants’ separate motions which were for summary judgment dismissing the cause of action to recover damages for medical malpractice insofar as asserted against each of them.

SKELOS, J.P., ANGIOLILLO, DICKERSON and HALL, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Doran v Wells    2012-01952         2012 NY Slip Op 08686    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

REINALDO E. RIVERA, J.P.

CHERYL E. CHAMBERS

L. PRISCILLA HALL

PLUMMER E. LOTT, JJ.

2012-01952

(Index No. 19380/08)

[*1]Arthur J. Doran III, et al., appellants,

v

Raymond Wells, respondent.

Tomkiel & Tomkiel, P.C., Scarsdale, N.Y. (Matthew Tomkiel of

counsel), for appellants.

Baxter, Smith & Shapiro, P.C., White Plains, N.Y. (Kimberley

A. Carpenter of counsel), for

respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered December 6, 2011, which denied their motion for summary judgment on the issue of liability.

ORDERED that the order is affirmed, with costs.

On their motion for summary judgment on the issue of liability, the plaintiffs established their prima facie entitlement to judgment as a matter of law by demonstrating that the injured plaintiff’s vehicle was fully stopped at a red traffic light when it was struck in the rear by the defendant’s vehicle (see Tutrani v County of Suffolk, 10 NY3d 906, 908; Pollard v Independent Beauty & Barber Supply Co., 94 AD3d 845, 845-846; Balducci v Velasquez, 92 AD3d 626, 628-629). However, in opposition, the defendant, who allegedly experienced a hypoglycemic attack immediately before the accident, raised a triable issue of fact as to whether he suffered a sudden and unforeseeable medical emergency that constituted a nonnegligent explanation for the accident (see Romero v Metropolitan Suburban Bus Auth., 25 AD3d 683, 684; Estate of Marone v Chaves, 306 AD2d 372, 373; Thomas v Hulslander, 233 AD2d 567, 568). Accordingly, the Supreme Court properly denied the plaintiffs’ motion for summary judgment on the issue of liability.

RIVERA, J.P., CHAMBERS, HALL and LOTT, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

“Dossous v Corporate Owners Bayridge Nissan, Inc.”      2011-05391         2012 NY Slip Op 08687    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

PETER B. SKELOS, J.P.

RUTH C. BALKIN

THOMAS A. DICKERSON

SYLVIA HINDS-RADIX, JJ.

2011-05391

(Index No. 425/11)

[*1]Louis Dossous, appellant,

v

Corporate Owners Bayridge Nissan, Inc., respondent.

Louis Dossous, Westbury, N.Y., appellant pro se.

McElroy, Deutsch, Mulvaney & Carpenter, LLP, New York,

N.Y. (Brian J. Carey of counsel), for

respondent.

DECISION & ORDER

In an action to recover damages for breach of contract, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Kramer, J.), dated May 13, 2011, as, upon the denial of his motion to stay the enforcement of a prior order of the same court, sua sponte, directed the dismissal of the complaint.

ORDERED that on the Court’s own motion, the notice of appeal is deemed to be an application for leave to appeal, and leave to appeal is granted (see CPLR 5701[c]); and it is further,

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the matter is remitted to the Supreme Court, Kings County, for further proceedings on the complaint.

The Supreme Court improvidently exercised its discretion when it, sua sponte, directed the dismissal of the complaint. “”A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal”” (U.S. Bank, N.A. v Emmanuel, 83 AD3d 1047, 1048; see Atkins-Payne v Branch, 95 AD3d 912; Bank of Am., N.A. v Bah, 95 AD3d 1150, 1151). Here, there were no extraordinary circumstances warranting the sua sponte dismissal of the complaint. There was no motion or cross motion by the defendant pending before the Supreme Court, and the defendant’s opposition to the plaintiff’s motion sought only the denial of that motion. Thus, “”[a] serious aspect of due process [was] overlooked by the IAS court,”” in that the plaintiff was deprived of notice and the opportunity to respond to a motion to dismiss the complaint (Myung Chun v North Am. Mtge. Co., 285 AD2d 42, 45; see NYCTL 2008-A Trust v Estate of Locksley Holas, 93 AD3d 650, 651; Ling Fei Sun v City of New York, 55 AD3d 795, 796). This was improper (see Mihlovan v Grozavu, 72 NY2d 506, 508; Ling Fei Sun v City of New York, 55 AD3d at 796; Myung Chun v North Am. Mtge. Co., 285 AD2d at 45).

In light of our determination, the plaintiff’s remaining contentions need not be addressed. We note that the plaintiff’s undecided motion to stay a prior order of the same court is now academic.

SKELOS, J.P., BALKIN, DICKERSON and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Elias v Elias          2011-03992         2012 NY Slip Op 08688    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

RUTH C. BALKIN, J.P.

SHERI S. ROMAN

SANDRA L. SGROI

JEFFREY A. COHEN, JJ.

2011-03992

(Index No. 200435/08)

[*1]Cathy Elias, appellant-respondent,

v

Albert Elias, respondent-appellant.

McLaughlin & Stern LLP, New York, N.Y. (Peter C. Alkalay

of counsel), for appellant-respondent.

Glenn S. Koopersmith, Garden City, N.Y. (Steven J. Eisman

and Michael E. Ratner of counsel),

for respondent-appellant.

DECISION & ORDER

In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by her brief, from stated portions of a judgment of the Supreme Court, Nassau County (Diamond, J.), entered March 8, 2011, which, upon a decision of the same court dated October 6, 2010, and an amended decision dated December 15, 2010, made after a nonjury trial, inter alia, awarded her only 25% of the value of the defendant’s interest in certain business entities, and awarded her child support in the sum of only $192.31 per week, and the defendant cross-appeals, as limited by his brief, from so much of the same judgment as awarded the plaintiff 25% of the value of his interest in certain business entities.

ORDERED that the judgment is modified, on the law, by deleting the provision thereof awarding the plaintiff child support in the sum of $192.31 per week; as so modified, the judgment is affirmed insofar as appealed and cross-appealed from, with costs to the plaintiff, and the matter is remitted to the Supreme Court, Nassau County, for a new determination of the defendant’s child support obligation and the entry of an appropriate amended judgment thereafter; in the interim, the defendant shall continue to pay to the plaintiff child support in the sum of $192.31 per week.

Contrary to the plaintiff’s contentions, the Supreme Court providently exercised its discretion in awarding the plaintiff 25% of the value of the defendant’s interest in Ben Elias Industries Corp. “”Although in a marriage of long duration, where both parties have made significant contributions to the marriage, a division of marital assets should be made as equal as possible . . . there is no requirement that the distribution of each item of marital property be made on an equal basis”” (Baron v Baron, 71 AD3d 807, 809 [internal quotation marks omitted]; see Arvantides v Arvantides, 64 NY2d 1033, 1033; Kaplan v Kaplan, 51 AD3d 635, 637; Griggs v Griggs, 44 AD3d 710, 713). Here, the 25% share “”takes into account the plaintiff’s minimal direct and indirect involvement in the defendant’s company, while not ignoring her contributions as the primary caretaker for the parties’ children, which allowed the defendant to focus on his business”” (Baron v [*2]Baron, 71 AD3d at 809; see Ventimiglia v Ventimiglia, 307 AD2d 993, 994; Chalif v Chalif, 298 AD2d 348, 349).

However, the Supreme Court failed to properly calculate child support pursuant to the Child Support Standards Act (Domestic Relations Law § 240[1-b]; hereinafter the CSSA). The CSSA provides “”a precisely articulated, three-step method for determining child support”” (Matter of Cassano v Cassano, 85 NY2d 649, 652). The first step requires the computation of statutory “”[c]ombined parental income”” after which a limited number of deductions are allowed (Domestic Relations Law § 240[1-b][b][4]; [c][1]). Second, the court multiplies that figure, up to $130,000, by a specified percentage based upon the number of children in the household—25% for two children—and then allocates that amount between the parents according to their share of the total income (see Domestic Relations Law § 240[1-b][b][3]; [c][2]). Finally in the third step, where combined parental income exceeds $130,000, “”the court shall determine the amount of child support for the amount of the combined parental income in excess of such dollar amount through consideration of the factors set forth in paragraph (f) of [Domestic Relations Law § 240(1-b)] and/or the child support percentage”” (Domestic Relations Law § 240[1-b][c][3]).

Here, in determining child support, the Supreme Court failed to set forth the manner in which the defendant’s income was calculated (see McLoughlin v McLoughlin, 63 AD3d 1017, 1019; Sirgant v Sirgant, 35 AD3d 437, 438). The Court also improperly deducted the distributive award from the defendant’s income, a deduction that is not recognized in the CSSA (see Domestic Relations Law § 240[1-b][b][5][vii][A]-[H]; Holterman v Holterman, 3 NY3d 1, 10-11). Still further, the record indicates that the Supreme Court improperly capped the defendant’s income at $125,000, which was below the statutory ceiling of $130,000 that became effective on January 31, 2010 (see Domestic Relations Law § 240[1-b][c][2]; Social Services Law § 111-i[2][b]; L 2009, ch 343; Lago v Adrion, 93 AD3d 697, 699). Accordingly, we remit the matter to the Supreme Court, Nassau County, for a recalculation of the defendant’s child support obligation (see McLoughlin v McLoughlin, 63 AD3d at 1019).

The plaintiff’s remaining contentions are without merit.

We do not consider the defendant’s contention on his cross appeal, as it is improperly raised for the first time on the cross appeal (see Abrams v Abrams, 57 AD3d 809, 810-811; Levy v Levy, 289 AD2d 379, 380; Fascaldi v Fascaldi, 209 AD2d 576, 578).

BALKIN, J.P., ROMAN, SGROI and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Estaba v Quow  2012-01298         2012 NY Slip Op 08689    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

PETER B. SKELOS, J.P.

CHERYL E. CHAMBERS

SANDRA L. SGROI

SYLVIA HINDS-RADIX, JJ.

2012-01298

(Index No. 9422/08)

[*1]Blanca Estaba, respondent,

v

Joel L. Quow, et al., defendants, Kev-Ra Limo, Inc., et al., appellants.

Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn, N.Y.

(Stacy R. Seldin of counsel), for appellants.

Robert C. Fontanelli, P.C. (Arnold E. DiJoseph, P.C., of counsel),

for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants Kev-Ra Limo, Inc., and Luis Alfredo Ruiz appeal from an order of the Supreme Court, Kings County (Francois Rivera, J.), dated December 2, 2011, which granted the plaintiff’s motion pursuant to CPLR 3126 to strike their answer.

ORDERED that the order is affirmed, with costs.

The nature and degree of the penalty to be imposed pursuant to CPLR 3126 is a matter within the discretion of the trial court (see Kihl v Pfeffer, 94 NY2d 118, 122-123; Commisso v Orshan, 85 AD3d 845; Rock City Sound, Inc. v Bashian & Farber, LLP, 83 AD3d 685, 686). The drastic remedy of striking an answer is inappropriate absent a clear showing that the defendant’s failure to comply with discovery demands was willful and contumacious (see Orgel v Stewart Tit. Ins. Co., 91 AD3d 922, 923; Commisso v Orshan, 85 AD3d at 845; Rock City Sound, Inc. v Bashian & Farber, LLP, 83 AD3d at 686). Willful and contumacious conduct may be inferred from a party’s repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply or a failure to comply with court-ordered discovery over an extended period of time (see Orgel v Stewart Tit. Ins. Co., 91 AD3d at 924; Commisso v Orshan, 85 AD3d at 845; Rock City Sound, Inc. v Bashian & Farber, LLP, 83 AD3d at 686-687). Here, the appellants’ failure, over a period of one year and nine months, to comply with five court orders directing them to appear for a deposition, coupled with a lack of a reasonable excuse for that failure, supports an inference that their conduct was willful and contumacious (see Orgel v Stewart Tit. Ins. Co., 91 AD3d at 924; Rock City Sound, Inc. v Bashian & Farber, LLP, 83 AD3d at 686-687; Commisso v Orshan, 85 AD3d at 845; Morgenstern v Jeffsam Corp., 78 AD3d 913, 914; Giano v Ioannou, 78 AD3d 768, 771). Accordingly, the Supreme Court providently exercised its discretion in granting the plaintiff’s motion to strike the appellants’ answer.

SKELOS, J.P., CHAMBERS, SGROI and HINDS-RADIX, JJ., concur. [*2]

ENTER:

Aprilanne Agostino

Clerk of the Court”

Frisch v Harris    2011-10794         2012 NY Slip Op 08690    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

MARK C. DILLON, J.P.

L. PRISCILLA HALL

SHERI S. ROMAN

JEFFREY A. COHEN, JJ.

2011-10794

(Index No. 21542/08)

[*1]Aline M. Frisch, appellant,

v

Philip Harris, et al., respondents.

Litman & Litman, P.C., East Williston, N.Y. (Jeffrey E. Litman

of counsel), for appellant.

Adams, Hanson, Rego, Carlin, Hughes, Kaplan & Fishbein,

Albany, N.Y. (Gerald D. D’Amelia, Jr.,

of counsel), for respondents.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Queens County (Elliot, J.), dated September 28, 2011, which, upon an order of the same court dated March 31, 2011, granting the defendants’ motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident, is in favor of the defendants and against her dismissing the complaint.

ORDERED that the judgment is affirmed, with costs.

The defendants met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). The defendants submitted competent medical evidence establishing, prima facie, that the plaintiff did not sustain any serious injuries to her right shoulder or to the cervical and lumbar regions of her spine (see Fudol v Sullivan, 38 AD3d 593, 594) and, in any event, that any injuries were not caused by the subject accident (cf. Jilani v Palmer, 83 AD3d 786, 787). Moreover, the defendants demonstrated, prima facie, that the plaintiff did not sustain a serious injury under the 90/180-day category of Insurance Law § 5102(d) by submitting the plaintiff’s deposition testimony, which demonstrated that she was not prevented from performing substantially all of her usual and customary daily activities for not less than 90 days during the 180 days immediately following the subject accident (see Beltran v Powow Limo, Inc., 98 AD3d 1070, 1071).

In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff has an extensive history of accidents involving injury to the parts of her body at issue in this case, specifically, according to her deposition testimony, accidents in 1993, 1996, 1998, 2001, and 2007. The affirmation of one of the plaintiff’s orthopedists, Dr. George L. Unis, concluded that the causality of the plaintiff’s claimed cervical, lumbar, knee and shoulder injuries “”is not very well established.”” The plaintiff’s orthopedic surgeon, Dr. Barry Katzman, causally related the plaintiff’s [*2]injuries to the instant occurrence as aggravations of the pre-existing injuries. However, Dr. Katzman’s summary of the plaintiff’s prior accidents does not include all of the accidents, lists incorrect years for others, and, as argued by the defendants, fails to indicate that he reviewed the medical records from the prior accidents (see Cantave v Gelle, 60 AD3d 988, 989; Gentilella v Board of Educ. of Wantagh Union Free School Dist., 60 AD3d 629, 630). Accordingly, his conclusion about causality is speculative and insufficient (see Cantave v Gelle, 60 AD3d at 989). The plaintiff’s papers submitted in opposition to the defendants’ motion likewise fail to raise a triable issue of fact regarding the 90/180 day category of Insurance Law § 5102(d) (see Moore v Sarwar, 29 AD3d 752, 753; Sainte-Aime v Ho, 274 AD2d 569).

Accordingly, the Supreme Court properly granted the defendants’ motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.

DILLON, J.P., HALL, ROMAN and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

“Gambale v 400 Fifth Realty, LLC”             2011-08921         2012 NY Slip Op 08691    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

WILLIAM F. MASTRO, J.P.

DANIEL D. ANGIOLILLO

SANDRA L. SGROI

ROBERT J. MILLER, JJ.

2011-08921

(Index No. 18694/09)

[*1]Michael Gambale, et al., respondents,

v

400 Fifth Realty, LLC, et al., appellants.

Malapero & Prisco LLP, New York, N.Y. (Frank J. Lombardo of

counsel), for appellants.

Sacks and Sacks, LLP, New York, N.Y. (Scott N. Singer of

counsel), for respondents.

DECISION & ORDER

In a consolidated action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Rothenberg, J.), dated August 4, 2011, as granted that branch of the plaintiffs’ motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1), and denied that branch of their cross motion which was for summary judgment dismissing that cause of action.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiffs are ironworkers who allegedly were injured while working on the 42nd floor during the construction of a building located on Fifth Avenue in Manhattan. The accident occurred when the floor, which then consisted of plywood decking, collapsed underneath them as they were standing on it. The plaintiffs moved, inter alia, for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1), and the defendants cross-moved, inter alia, for summary judgment dismissing that cause of action. The Supreme Court granted that branch of the plaintiffs’ motion and denied that branch of the defendants’ cross motion. The defendants appeal, and we affirm.

The plaintiffs met their prima prima facie burden of establishing that the defendants’ violation of Labor Law § 240(1) was a proximate cause of their accident (see Silvia v Bow Tie Partners, LLC, 77 AD3d 1143; Zong Mou Zou v Hai Ming Constr. Corp., 74 AD3d 800; Robertti v Powers Chang, 227 AD2d 542). In opposition, the defendants failed to raise a triable issue of fact as to whether the plaintiffs’ actions were the sole proximate cause of their accident (see Zong Mou Zou v Hai Ming Constr. Corp., 74 AD3d at 800; Beamon v Agar Truck Sales, Inc., 24 AD3d 481; Birbilis v Rapp, 205 AD2d 569).

Accordingly, the Supreme Court properly granted that branch of the plaintiffs’ motion which was for summary judgment on the issue of liability on their cause of action alleging a violation [*2]of Labor Law § 240(1), and denied that branch of the defendants’ cross motion which was for summary judgment dismissing that cause of action.

MASTRO, J.P., ANGIOLILLO, SGROI and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Granela v Ruppert           2011-08709         2012 NY Slip Op 08692    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

REINALDO E. RIVERA, J.P.

ANITA R. FLORIO

THOMAS A. DICKERSON

JOHN M. LEVENTHAL

PLUMMER E. LOTT, JJ.

2011-08709

(Index No. 12273/09)

[*1]Marta Granela, appellant,

v

Joseph Ruppert, respondent.

Getz & Braverman, P.C. (Pollack, Pollack, Isaac & De Cicco,

New York, N.Y. [Brian J. Isaac and Michael H. Zhu], of counsel),

for appellant.

Eisenberg & Kirsch, Liberty, N.Y. (Robert Lefland of counsel),

for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Orange County (Bartlett, J.), dated June 30, 2011, which granted the defendant’s motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.

ORDERED that the order is reversed, on the law, with costs, and the defendant’s motion for summary judgment dismissing the complaint is denied.

The defendant met his prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). The defendant submitted competent medical evidence establishing, prima facie, that the alleged injuries to the cervical and lumbar regions of the plaintiff’s spine did not constitute serious injuries within the meaning of Insurance Law § 5102(d) (see David v Caceres, 96 AD3d 990, 990-991; Rodriguez v Huerfano, 46 AD3d 794, 795).

However, in opposition, the plaintiff raised a triable issue of fact as to whether any of the alleged injuries to the cervical and lumbar regions of her spine constituted a serious injury under the permanent consequential limitation of use and/or significant limitation of use categories of Insurance Law § 5102(d) (see Perl v Meher, 18 NY3d 208, 215-218; David v Caceres, 96 AD3d at 991). Accordingly, the Supreme Court should have denied the defendant’s motion for summary judgment dismissing the complaint.

RIVERA, J.P., FLORIO, DICKERSON, LEVENTHAL and LOTT, JJ., concur. [*2]

ENTER:

Aprilanne Agostino

Clerk of the Court”

Great Neck Terrace Owners Corp. v McCabe       2011-03769         2012 NY Slip Op 08693    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

MARK C. DILLON, J.P.

THOMAS A. DICKERSON

LEONARD B. AUSTIN

ROBERT J. MILLER, JJ.

2011-03769

(Index No. 13884/10)

[*1]Great Neck Terrace Owners Corp., respondent,

v

Julie F. McCabe, appellant.

Vernon & Ginsburg, LLP, New York, N.Y. (Yoram Silgay and

Darryl M. Vernon of counsel), for appellant.

Kagan Lubic Lepper Finkelstein & Gold, LLP, New York,

N.Y. (Emil A. Samman of counsel), for

respondent.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of a proprietary lease, the defendant appeals from an order of the Supreme Court, Nassau County (Jaeger, J.), entered July 27, 2011, which, inter alia, granted the plaintiff’s motion for summary judgment on the issue of liability on the fourth cause of action.

ORDERED that the order is affirmed, with costs.

The plaintiff is a cooperative corporation that owns a residential apartment building, located in Great Neck. The defendant has held the proprietary lease to a unit in the cooperative since July 1992.

Starting in or around 2005, the plaintiff began receiving complaints from the defendant’s neighbors concerning an odor of cat urine allegedly coming from the defendant’s unit. In September 2006, an employee of the plaintiff contacted the defendant and asked her to abate the odor. The defendant neither abated the odor nor granted the plaintiff access to her unit to perform abatement measures. Consequently, in March 2010, the Nassau County Department of Health issued a violation to the plaintiff citing “”pollution of atmosphere—offensive cat odors”” stemming from the defendant’s unit.

In July 2010, the plaintiff commenced this action against the defendant alleging that the defendant breached the proprietary lease by allowing the existence of the cat urine odor. The plaintiff further alleged that, despite its repeated requests for access to the defendant’s unit to investigate and remedy the alleged offensive odor, the defendant refused to provide such access, although required to do so by the terms of the lease.

The plaintiff moved for summary judgment on the issue of liability on its fourth cause of action, which sought to recover damages for breach of contract and reasonable attorney’s fees. The Supreme Court granted the plaintiff’s motion and directed a hearing on the issue of damages and [*2]reasonable attorney’s fees.

The plaintiff met its prima facie burden of establishing its entitlement to judgment as a matter of law on the issue of liability with respect to the fourth cause of action (see Alvarez v Prospect Hospital, 68 NY2d 320, 324; Zuckerman v City of New York, 49 NY2d 557, 562). In support of its motion, the plaintiff submitted the subject lease and an affidavit from its president.

The lease provided that the defendant, as lessee, “”shall not permit unreasonable . . . odors to escape into the building.”” In the event that the lessee failed to make necessary repairs or remedy an objectionable condition upon being given 30 days notice, the plaintiff, as lessor, had the right to make such necessary repairs or remove such objectionable condition. The lease also provided that the plaintiff “”shall be permitted to visit, examine or enter the apartment . . . at any reasonable hour of the day upon notice . . . to cure any default by the Lessee.””

In her affidavit, the plaintiff’s president stated that the plaintiff had been receiving complaints from other shareholders about the smell of cat urine emanating from the defendant’s unit

since 2005. Letters were sent to the defendant from the plaintiff and its attorneys requesting that the plaintiff voluntarily abate the odor. The plaintiff’s president also noted that the plaintiff was issued a violation by the Nassau County Department of Health relating to the offensive cat odor coming from the defendant’s unit. The plaintiff’s president maintained that, despite this, the defendant refused the plaintiff’s request for access to the unit to remedy the situation.

Although the defendant submitted evidence in opposition demonstrating that she had recently taken abatement measures to remedy the cat urine odor and had allowed the plaintiff to have access to her unit, she did not address the plaintiff’s evidence which established that she had neither fully remedied the odor nor granted access to her apartment before the commencement of the instant action in 2010, despite having been informed of the necessity to do so as early as 2006. Thus, the defendant failed to raise a triable issue of fact as to whether she had breached the lease (see generally Satra Realty, LLC v Knovel Corp., 93 AD3d 1128, 1129-1130; Elm Realty Assoc., LLC v Leben, LLC, 22 AD3d 790, 792-793; Chaehee Jung v Kum Gang, Inc., 22 AD3d 441, 443; Wilson v Valley Park Estates Owners Corp., 301 AD2d 589, 590-591; Yofi Book Publ. v Wil-Brook Realty Corp., 287 AD2d 712, 713).

“”It is well settled in New York that a prevailing party may not recover attorneys’ fees from the losing party except where authorized by statute, agreement or court rule”” (U.S. Underwriters Ins. Co. v City Club Hotel, LLC, 3 NY3d 592, 597; see Hooper Assoc. v AGS Computers, 74 NY2d 487, 491; Spodek v Neiss, 86 AD3d 561, 561). Pursuant to paragraph 28 of the lease, the plaintiff was entitled to recover any expenses, including reasonable attorney’s fees, from a lessee, such as the defendant, in the event that it had to institute any action or proceedings against a lessee due to the lessee’s breach of the terms of the lease. Given the defendant’s refusal to abate the odor or to provide the plaintiff with access to her unit to allow it to handle the abatement in accordance with the terms of the lease, the plaintiff was required to institute this action and incur expenses in connection with the litigation. Since the plaintiff demonstrated that the defendant breached the unambiguous terms of the lease, the plaintiff is entitled to reasonable attorney’s fees (see Rechler Equity B-1, LLC v AKR Corp., 98 AD3d 496, 498; 715 Ocean Parkway Owners Corp. v Klagsbrun, 74 AD3d 1314, 1315; RAD Ventures Corp. v Arktukmac, 31 AD3d 412, 414). In opposition, the defendant failed to raise a triable issue of fact.

Accordingly, the Supreme Court properly granted the plaintiff’s motion for summary judgment on the issue of liability on the fourth cause of action.

DILLON, J.P., DICKERSON, AUSTIN and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Ronessa H. v City of New York    2011-00317         2012 NY Slip Op 08694    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

PETER B. SKELOS, J.P.

RUTH C. BALKIN

JOHN M. LEVENTHAL

LEONARD B. AUSTIN, JJ.

2011-00317

(Index No. 18929/06)

[*1]Ronessa H. (Anonymous), appellant-respondent,

v

City of New York, et al., respondents-appellants, et al., defendant.

Burns & Harris, New York, N.Y. (Blake G. Goldfarb of counsel),

for appellant-respondent.

Michael A. Cardozo, Corporation Counsel, New York, N.Y.

(Pamela Seider Dolgow and Dona B.

Morris of counsel), for respondents-

appellants.

DECISION & ORDER

In an action, inter alia, to recover damages for violations of civil rights pursuant to 42 USC § 1983, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Martin, J.), dated November 16, 2010, as, after a jury verdict finding the defendant City of New York 50% at fault in the happening of the incident, the defendant Andrew C. Johnson 30% at fault, and the defendant Donald Nelson 20% at fault, and awarding damages in the sums of $650,000 for past pain and suffering and $90,000 for future pain and suffering, and awarding punitive damages against the defendant Donald Nelson in the sum of $175,000, granted that branch of the motion of the defendants City of New York and Donald Nelson which was pursuant to CPLR 4404(a) to set aside the verdict as against the weight of the evidence and for a new trial on the issue of liability and damages as against them, and thereupon directed a new trial on the issues of liability and damages, and the defendants City of New York and Donald Nelson cross-appeal, as limited by their brief, from so much of the same order as, in effect, denied that branch of their motion which was pursuant to CPLR 4404(a) for judgment as a matter of law dismissing the complaint insofar as asserted against them for failure to establish a prima facie case.

ORDERED that the order is affirmed insofar as appealed from; and it is further,

ORDERED that the order is reversed insofar as cross-appealed from, on the law, that branch of the motion of the defendants City of New York and Donald Nelson which was pursuant to CPLR 4404(a) for judgment as a matter of law dismissing the complaint insofar as asserted against those defendants for failure to establish a prima facie case is granted, that branch of the motion of the defendants City of New York and Donald Nelson which was pursuant to CPLR 4404(a) to set aside the verdict as against the weight of the evidence and for a new trial as to those defendants is denied as academic, and so much of the order as directed a new trial on the issues of liability and damages as to the defendants City of New York and Donald Nelson is vacated; and it is further,

ORDERED that the matter is remitted to the Supreme Court, Kings County, for further proceedings on the complaint insofar as asserted against the defendant Andrew C. Johnson; [*2]and it is further,

ORDERED that one bill of costs is awarded to the defendants City of New York and Donald Nelson.

The plaintiff commenced this action alleging that she was sexually assaulted in her home by the defendant Andrew C. Johnson, a New York City police officer. With respect to the plaintiff’s causes of action against the defendant City of New York that were based on the alleged conduct of Johnson, who defaulted in this action, the Supreme Court charged the jury on negligent employment, training, and supervision (see PJI 2:240). As to the plaintiff’s claim that the defendant police officer Donald Nelson violated her civil rights by failing to protect her from the assault by Johnson, the court charged the jury on 42 USC § 1983 and the deprivation of the right to be free of cruel and unusual punishment (see PJI 3:60, 3:60.4).

“”A motion for judgment as a matter of law pursuant to CPLR 4401 or 4404 may be granted only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury upon the evidence presented at trial, and no rational process by which the jury could find in favor of the nonmoving party”” (Ryan v City of New York, 84 AD3d 926, 926-927 [internal quotation marks omitted]; see Cohen v Hallmark Cards, 45 NY2d 493, 499). “”In considering such a motion, the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant”” (Jourbine v Ma Yuk Fu, 67 AD3d 865, 866 [internal quotation marks omitted]).

A necessary element of a cause of action alleging negligent retention or negligent supervision is that the “”employer knew or should have known of the employee’s propensity for the conduct which caused the injury”” (Bumpus v New York City Tr. Auth., 47 AD3d 653, 654 [internal quotation marks omitted]).

Here, although the plaintiff presented testimony that Johnson had been reprimanded for failing to report a lost prisoner, that is not conduct that would reasonably put the City on notice that Johnson was inclined toward conduct such as that which allegedly caused the plaintiff’s injuries (see Dennard v Small World Ctr., Inc., 29 AD3d 730; Kelly v City of New York, 16 AD3d 463; Oliva v City of New York, 297 AD2d 789; Ray v Metropolitan Transp. Auth., 221 AD2d 613, cert denied sub nom. Ray v Willett, 519 US 822; cf. Fenstermacher v Nevins Amusements, 273 AD2d 347). Nor did the plaintiff establish that a special duty was owed to her by the City (see Valdez v City of New York, 18 NY3d 69, 80). Accordingly, the Supreme Court should have granted that branch of the motion of the City and Nelson which was pursuant to CPLR 4404(a) for judgment as a matter of law dismissing the complaint insofar as asserted against the City (see Ray v Metropolitan Transp. Auth., 221 AD2d at 614).

As to the plaintiff’s 42 USC § 1983 claim arising out of Nelson’s alleged deprivation of her rights under the Eighth Amendment by failing to protect her from Johnson, the plaintiff was not in police custody at the time of the alleged sexual assault (cf. DeShaney v Winnebago County Dept. of Social Servs., 489 US 189; Clarke v Sweeney, 312 F Supp 2d 277, 296). Moreover, the evidence was legally insufficient to establish that Nelson was “”deliberately indifferent to an unjustifiably substantial risk of serious harm of which [he was] aware, or that the risk was so obvious that it should have been known to [him]”” (Fausto v City of New York, 17 AD3d 520, 522; see Farmer v Brennan, 511 US 825; see also Galapo v City of New York, 95 NY2d 568, 575; Carroll v City of New York, 287 AD2d 430, 431; Malenczak v City of New York, 265 AD2d 532, 533). Thus, the Supreme Court should have granted that branch of the motion of the City and Nelson which was pursuant to CPLR 4404(a) for judgment as a matter of law dismissing the complaint insofar as asserted against Nelson.

The plaintiff’s remaining contentions either are without merit or, having not been raised before the Supreme Court, are not properly before this Court. [*3]

In light of the facts that the complaint must be dismissed insofar as asserted against the City and Nelson and that the Supreme Court has granted the plaintiff a default judgment against Johnson, based on his failure to answer or appear in this action, we remit the matter to the Supreme Court, Kings County, for further proceedings on the complaint insofar as asserted against Johnson.

SKELOS, J.P., BALKIN, LEVENTHAL and AUSTIN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Hidalgo v Cruiser Taxi Corp.         2012-03919         2012 NY Slip Op 08695    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

DANIEL D. ANGIOLILLO, J.P.

RUTH C. BALKIN

LEONARD B. AUSTIN

ROBERT J. MILLER, JJ.

2012-03919

(Index No. 834/10)

[*1]Danilo Hidalgo, et al., appellants,

v

Cruiser Taxi Corp., et al., respondents. Linda T. Ziatz, P.C., Forest Hills, N.Y., for appellants.

Gerber & Gerber, PLLC, Brooklyn, N.Y. (Thomas Torto and

Jason Levine of counsel), for respondents.

DECISION & ORDER

In an action to recover damages for personal injuries and injury to property, the plaintiffs appeal from an amended order of the Supreme Court, Kings County (Spodek, J.), dated March 9, 2012, which granted the defendants’ renewed motion to vacate a judgment of the same court entered January 4, 2011, which, upon an order dated August 13, 2010, granting the plaintiffs’ unopposed motion for leave to enter judgment on the issue of liability against the defendants upon their default in appearing or answering, and after an inquest on the issue of damages, was in favor of the plaintiff Danilo Hidalgo and against the defendants in the principal sum of $79,474.74 and in favor of the plaintiff Rhaisa Auto Corp. and against the defendants in the principal sum of $2,065.

ORDERED that the amended order is reversed, on the law, with costs, and the defendants’ renewed motion to vacate the judgment entered January 4, 2011, is denied.

That branch of the defendants’ renewed motion which was pursuant to CPLR 5015(a)(1) and (4) to vacate so much of the judgment as was entered against the defendant Cruiser Taxi Corp. (hereinafter Cruiser) upon its default in appearing or answering the complaint should have been denied. In support of its renewed motion, Cruiser failed to demonstrate a reasonable excuse for its default or to come forward with sufficient proof to rebut the affidavit of the plaintiffs’ process server, which constituted prima facie evidence of proper service upon it pursuant to CPLR 311(a)(1) (see Business Corporation Law § 306; Wassertheil v Elburg, LLC, 94 AD3d 753; Thas v Dayrich Trading, Inc., 78 AD3d 1163, 1164; Commissioners of State Ins. Fund v Nobre, Inc., 29 AD3d 511). While an officer of Cruiser claimed that the address on file with the Secretary of State was his old residence address and was not the current business address of Cruiser, he admitted that the address on file had not been updated for a period of seven years and failed to submit any documentary evidence to support his claim that he did not reside at the address on file at the time that Cruiser was served (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 143; Fatima v Twenty Seven-Twenty Four Realty Corp., 53 AD3d 564; J & S Constr. of NY, Inc. v 321 Bowery LLC, 39 AD3d 391; Franklin v 172 Aububon Corp., 32 AD3d 454; Santiago v Sansue Realty Corp., 243 AD2d 622, 623).

Moreover, Cruiser failed to demonstrate that it did not personally receive notice of the summons in time to defend the action, as required to obtain relief from a default judgment pursuant to CPLR 317 (see Taieb v Hilton Hotels Corp., 60 NY2d 725; 393 Lefferts Partners, LLC [*2]v New York Ave. at Lefferts, LLC, 68 AD3d 976, 977; Franklin v 172 Aububon Corp., 32 AD3d 454; Brockington v Brookfield Dev. Corp., 308 AD2d 498). The papers submitted in support of its renewed motion amounted to nothing more than a mere denial of notice of this action prior to entry of the default judgment and were insufficient to establish lack of actual notice for the purpose of CPLR 317 (see Wassertheil v Elburg, LLC, 94 AD3d at 754; Matter of Rockland Bakery, Inc. v B.M. Baking Co., Inc., 83 AD3d 1080, 1081-1082; Levine v Forgotson’s Cent. Auto & Elec., Inc., 41 AD3d 552).

Likewise, that branch of the defendants’ renewed motion which was pursuant to CPLR 5015(a)(1) and (4) to vacate so much of the judgment as was entered against the defendant Md A.H. Rary upon his default in appearing or answering the complaint should have been denied. Rary was served pursuant to CPLR 308(2) at the address which was on file with the Commissioner of the Department of Motor Vehicles (hereinafter the DMV). Since the record demonstrates that Rary had failed to notify the DMV of his change of residence, as required by Vehicle and Traffic Law § 505(5), he was estopped from raising a claim of defective service (see Kalamedeen v Singh, 63 AD3d 1007, 1009; Candela v Johnson, 48 AD3d 502, 503; Kandov v Gondal, 11 AD3d 516). Furthermore, Rary failed to submit any documentary evidence to support his claim that he did not reside at the address on file with the DMV at the time that he was served. Accordingly, under the circumstances, there was no reasonable excuse to warrant vacatur pursuant to CPLR 5015(a)(1) (see Candela v Johnson, 48 AD3d at 503).

In addition, that branch of the defendants’ renewed motion which was to vacate the default judgment against Rary pursuant to CPLR 317 also should have been denied. Under the circumstances of this case, Rary’s actions, including his direct involvement in the subject accident and his admitted failure to advise the DMV of his change of address for a period of five years, should be viewed as a deliberate attempt to avoid notice of the action (see Velasquez v Gallelli, 44 AD3d 934, 935; Cruz v Narisi, 32 AD3d 981; Labozzetta v Fabbro, 22 AD3d 644, 645-646).

ANGIOLILLO, J.P., BALKIN, AUSTIN and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

“Indymac Fed. Bank, FSB v Batista”          2012-01351         2012 NY Slip Op 08696    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

REINALDO E. RIVERA, J.P.

CHERYL E. CHAMBERS

L. PRISCILLA HALL

PLUMMER E. LOTT, JJ.

2012-01351

(Index No. 9014/09)

[*1]Indymac Federal Bank, FSB, appellant,

v

Luisa Batista, respondent, et al., defendants.

Frenkel, Lambert, Weiss, Weisman & Gordon, LLP, Bay Shore,

N.Y. (Timothy Riselvato of counsel), for appellant.

Donna Dougherty, Rego Park, N.Y. (Dianne Woodburn and

Hilary Bauer of counsel), for

respondent.

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals, by permission, from an order of the Supreme Court, Queens County (Hart, J.), entered December 21, 2011, which, inter alia, sua sponte, declared that the mortgage on the subject property is null and void, and prohibited the plaintiff from seeking a deficiency judgment against the defendant Luisa Batista or from filing an Internal Revenue Service Form 1099-c.

ORDERED that the order is reversed, on the law, with costs.

Contrary to the contention of the defendant Luisa Batista, the record does not reflect that the order appealed from was entered as the result of a settlement, which would require dismissal of the appeal (see CPLR 2104; Matter of Martinez v Martinez, 15 AD3d 663). Since the order appealed from was not the result of a settlement, and the only basis for, inter alia, declaring the subject mortgage null and void was a colloquy between the Supreme Court and Batista, during which the plaintiff was not afforded the opportunity to present evidence and cross-examine Batista, the plaintiff was deprived of its right to due process of law (see Logan v Zimmerman Brush Co., 455 US 422, 429). Accordingly, the order must be reversed.

RIVERA, J.P., CHAMBERS, HALL and LOTT, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Jacobs v Northwestern Mut. Life Ins. Co.              2011-01014         2012 NY Slip Op 08697    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

RANDALL T. ENG, P.J.

PETER B. SKELOS

RUTH C. BALKIN

SANDRA L. SGROI, JJ.

2011-01014

(Index No. 21913/08)

[*1]Brad J. Jacobs, respondent-appellant,

v

Northwestern Mutual Life Insurance Company, appellant-respondent.

APPEAL by the defendant, in an action, inter alia, to recover damages for breach of contract, as limited by its brief, from so much of an order of the Supreme Court (Randy Sue Marber, J.), dated December 23, 2010, and entered in Nassau County, as denied its motion for summary judgment dismissing the amended complaint, and CROSS APPEAL by the plaintiff, as limited by his brief, from so much of the same order as denied his cross motion for summary judgment on the amended complaint.

Rivkin Radler LLP, Uniondale, N.Y. (Evan H. Krinick, Norman L.

Tolle, Cheryl F. Korman, and Merril S. Biscone of counsel), for

appellant-respondent.

Markowitz & Rabbach LLP, Melville, N.Y. (Scott Markowitz

and Heath Olnowich of counsel), for

respondent-appellant.

OPINION & ORDER

B A L K I N, J.The plaintiff, Brad J. Jacobs, was a plastic surgeon. In June 2007 his medical license was suspended by New York State’s Commissioner of Health on the ground that his continued practice “”constitute[d] an imminent danger to the health of the people of this state.”” A few months later, the plaintiff filed claims under his disability insurance policies. He asserted that even before the State suspended his license, mental illness and drug addiction had rendered him unable to perform his duties “”with any degree of safety or competence.”” The plaintiff’s insurer, the defendant Northwestern Mutual Life Insurance Company (hereinafter Northwestern), denied his claims on the ground that the plaintiff had been practicing his profession until the very day his license was suspended. The principal issue on this appeal and cross appeal is whether, under the terms of the plaintiff’s disability insurance policies, his inability to practice his profession resulted from a “”sickness,”” which may be covered under the policy, or from the loss of his medical license, which would not be covered.

I

The plaintiff had a successful medical practice located on the Upper East Side of Manhattan. He was insured under nine disability insurance policies issued by Northwestern, which provided for benefits in the event the plaintiff became disabled.

In 2001 the plaintiff began using crystal methamphetamine (hereinafter crystal meth), at first once a week, but increasing to daily use. In March 2003 he began therapy with a drug counselor, but relapsed after a short period of abstinence. Evidence adduced during discovery established that, from 2001 to June 2007, the plaintiff was making reckless treatment decisions. It also established that so many malpractice lawsuits had been filed against him that, by 2007, he did not have malpractice insurance because he could not afford the premiums.

In the first six months of 2007, the plaintiff consulted with patients on Mondays and [*2]Wednesdays, from 9:00 A.M. to 5:00 P.M., and performed surgery on Tuesdays, Thursdays, and Fridays, from approximately 7:00 A.M. to 5:00 P.M. He testified at his deposition, however, that during those six months he was sleeping little and was “”in a fog”” because he was ingesting crystal meth several times a week. He was also self-medicating with Xanax and Fentanyl. Crystal meth gave the plaintiff a “”high”” that replicated the high he felt during his bipolar upswings. The plaintiff continued using crystal meth because he believed that, without it, he would “”crash”” and be unable to function.

On June 18, 2007, the New York State Board for Professional Medical Conduct (hereinafter the Board) notified the plaintiff that his license to practice medicine was being suspended because his continued practice “”constitute[d] an imminent danger to the health of the people of this state.”” The Statement of Charges iterated alleged acts of negligence, incompetence, performance of services not authorized by patients, failure to maintain records and moral unfitness. The charges pertained to 10 incidents that took place between 2001 and 2005.

In August 2007, about two months after his license was suspended, the plaintiff consulted with a psychologist, who, upon diagnosing him as suffering from Bipolar II Disorder, referred him to a psychiatrist.

On September 12, 2007, following 11 days of hearings before the Board, the plaintiff agreed to surrender his medical license, because he could not “”successfully defend against acts of misconduct alleged in the Statement of Charges.”” The next day, the Board accepted the plaintiff’s surrender of his license.

In October 2007 the plaintiff was admitted to an inpatient treatment program. He remained in the program and was treated for Bipolar II Disorder, as well as Impulse Control Disorder and Amphetamine Dependence, until January 26, 2008.

In January 2008 the plaintiff sought benefits under the “”total disability”” provisions of his disability insurance policies. According to his “”Request for Disability Benefits,”” he “”did not perform any job duties and [was] claiming total disability benefits”” for the period from June 18, 2007—the date his license was suspended—to “”present.”” The plaintiff claimed that he suffered from various conditions, including Bipolar II Disorder. In April 2008 Northwestern denied the plaintiff’s claim on the ground that the plaintiff had ceased practicing medicine because his license was suspended, not because he was unable to perform the principal duties of his occupation. Later, Northwestern denied the plaintiff’s appeal of its decision. The letter informing the plaintiff of the result of the appeal noted among other things that, “”[a]lthough he may have had a condition prior to June 18, 2007, it was not that condition that caused him to stop working but rather the suspension of his license,”” and that nothing in the plaintiff’s file “”suggest[ed], let alone prove[d] that [the plaintiff] was unable to perform the principal duties of his occupation on a full time basis due to accident or sickness prior to or as of the day his license was suspended.””

In December 2008, while his appeal of the denial of benefits was pending, the plaintiff commenced this action against Northwestern seeking damages for breach of contract and unjust enrichment. After discovery was completed, Northwestern moved for summary judgment dismissing the amended complaint. Northwestern acknowledged that the plaintiff was unable to practice medicine as of June 18, 2007, but argued that his “”disability”” resulted from the suspension of his license, not from his medical or psychological condition. The plaintiff opposed Northwestern’s motion and cross-moved for summary judgment on the amended complaint. The Supreme Court denied the motion and the cross motion, finding that there were triable issues of fact as to whether the plaintiff’s bipolar disorder preceded the suspension of his medical license and whether it impeded his ability to carry out his responsibilities as a plastic surgeon. Both parties appeal.

II

Unambiguous provisions of an insurance policy, like unambiguous provisions in any other contract, are accorded “”their plain and ordinary meaning”” (White v Continental Cas. Co., 9 NY3d 264, 267, citing Teichman v Community Hosp. of W. Suffolk, 87 NY2d 514, 520; see Antoine v City of New York, 56 AD3d 583, 584). Here, the plaintiff’s disability insurance policies provide that, in order to qualify for disability benefits, the plaintiff is required to establish that he is totally disabled and no longer able to perform the functions of the profession in which he was engaged when his illness or injury began. Eight of the plaintiff’s nine policies are identical in these terms, and they define “”totally disabled”” as being “”unable to perform the principal duties of the regular occupation.”” As relevant here, “”regular occupation”” is defined as “”the occupation of the Insured at [*3]the time the Insured becomes disabled.”” These eight policies—the ninth is not significantly different—also provide that benefits are to be paid for the insured’s total or partial disability only if:

“”the Insured becomes disabled while this policy is in force;

the Insured is under the Regular Care of a Licensed Physician during disability;

the disability results from an accident or sickness; and

the disability is not excluded under Section 3.””[FN1]

It is not disputed that the plaintiff’s disability, whatever its nature, arose while the policies were in force. Moreover, the plaintiff was under the regular care of a physician beginning no later than August 2007, two months after the date from which he seeks benefits. Indeed, Northwestern does not even dispute that, at some point after the plaintiff’s license was suspended, his mental or psychological condition rendered him “”unable to perform the principal duties of”” a plastic surgeon. The crux of this case is whether, under the meaning of the policies, the plaintiff’s disability “”result[ed] from an accident or sickness.””

III

The general rule, followed by this Court and those of most other jurisdictions, is that disability insurance policies provide coverage for factual disabilities, but not for purely legal disabilities (see Gassler v Monarch Life Ins. Co., 276 AD2d 585, 586; BLH ex rel. GEH v Northwestern Mut. Life Ins. Co., 92 F Supp 2d 910, 915-916 [D Minn]; Solomon v Royal Maccabees Life Ins. Co., 243 Mich App 375, 382-383, 622 NW2d 101, 104; see generally 10A Lee Russ, Couch on Ins 3d § 146:9). The distinction between the two types of disabilities is clear:

“”A factual disability is an incapacity caused by illness or injury that prevents a person from engaging in his or her occupation. A legal disability includes all circumstances in which the law does not permit a person to engage in his or her profession even though he or she may be physically and mentally able to do so. The courts have found that a legal disability may be the result of incarceration, the revocation or suspension of a professional license, surrendering a professional license as part of a plea agreement or to avoid disciplinary action, or practice restrictions imposed by a licensing board”” (Massachusetts Mut. Life Ins. Co. v Jefferson, 104 SW3d 13, 26-27 [Tenn Ct App] [citations omitted]; see Gassler v Monarch Life Ins. Co., 276 AD2d at 586; Massachusetts Mut. Life Ins. Co. v Ouellette, 159 Vt 187, 190-191, 617 A2d 132, 134; see generally 43 Am Jur 2d, Insurance § 1466; 10A Lee Russ, Couch on Ins 3d § 146:9).

Nonetheless, determining whether an insured’s particular disability should be categorized as primarily factual or legal may prove problematic where there is both a factual and a legal disability, especially in cases of mental illness:

“”Frequently, professionals seeking disability benefits have both a legal and a factual disability because of the same condition. As one court noted, a blinded bus driver or a drug addicted pilot may [have] lost their licenses for the same condition that renders them totally disabled to drive or fly.’ Grayboyes v General Am. Life Ins. Co., 1995 WL 156040, at *8, 1995 U.S. Dist. LEXIS 4233, at *21″” (Massachusetts Mut. Life Ins. Co. v Jefferson, 104 SW3d at 27).

When an insured has a legal disability, but also claims a factual disability, the [*4]determination of coverage rests on three factors: first, whether the claimed factual disability is medically bona fide; second, whether its onset actually occurred before the legal disability; and, third, whether the factual disability actually prevented or hindered the person seeking disability benefits from engaging in his or her profession or occupation (see 43 Am Jur 2d, Insurance § 1466, citing Massachusetts Mut. Life Ins. Co. v Jefferson, 104 SW3d 13). Northwestern’s own guidelines for certain disability policies recognize that factual and legal disabilities may exist concurrently: “”[i]f it is determined that there is a disabling illness and the loss of license was secondary to this illness, a total disability claim can be administered as usual.””

The most straightforward situations involving claims when the insured has both a factual and a legal disability are those in which one clearly precedes the other and precludes performance of the principal tasks of the occupation. For example, if an insured is unable, by reason of mental illness, even to attempt to perform the principal duties of the occupation and then surrenders a professional license as a result, the factual disability will be primary. Conversely, when an insured loses a professional license and, as a result, becomes mentally disabled, the legal disability is primary (see Gassler v Monarch Life Ins. Co., 276 AD2d 585).

More complicated are situations when an insured suffers from a mental illness but does not cease working at the covered occupation until a legal disability, such as a license suspension, arises. No court of this State has addressed this exact issue, but federal courts and other state courts have. Those courts have focused on whether and how the insured’s mental illness brought about the legal disability. The prevalent rule is that disability insurance benefits are not precluded when an insured loses a professional license because mental illness has rendered him or her unable to perform the core tasks of the occupation safely and competently. Benefits may be precluded, however, when the mental illness has not impaired the insured’s ability to practice safely and competently but causes the insured to engage in misconduct unrelated to the core tasks of the occupation (see Massachusetts Mut. Life Ins. Co. v Jefferson, 104 SW3d 13; Solomon v Royal Maccabees Life Ins. Co., 243 Mich App at 385-386, 622 NW2d at 106; Damascus v Provident Life & Acc. Ins. Co. 168 F3d 498 [table; text at 1999 WL 51490, *2, 1999 US App LEXIS 1234, * 8-9 (9th Cir)]; Massachusetts Mut. Life Ins. Co. v Millstein, 129 F3d at 691; Goomar v Centennial Life Ins. Co., 76 F3d 1059, 1063 [9th Cir 1995]; Grayboyes v General Am. Life Ins. Co., 1995 WL 156040, *, 1995 US Dist LEXIS 4233, *13 [ED Pa]; Massachusetts Mut. Life Ins. Co. v Ouellette, 159 Vt at 190-191, 617 A2d at 134; cf. Corsaut v Equitable Life Assur. Soc. of U.S., 203 Iowa 741, 211 NW 222, 224; see generally E.L. Kellett, Annotation, Mental Incapacity or Disease as Constituting Total or Permanent Disability Within Insurance Coverage, 22 ALR3d 1000).

The plaintiff contends that, notwithstanding the fact that he had a roomful of waiting patients on the day he was suspended, his mental and psychological condition rendered him “”unable to perform the principal duties of”” a plastic surgeon long before he was suspended. In other words, he contends that his preexisting mental illness caused him to perform his occupation incompetently and thus was the primary cause of his inability to practice his profession. The plaintiff’s loss of his license, which resulted from his mental illness, was secondary.

Northwestern disagrees, arguing that the plaintiff’s disability resulted from the loss of his medical license (a legal disability), not from his Bipolar II Disorder and drug abuse (factual disabilities) (see Gassler v Monarch Life Ins. Co., 276 AD2d at 585; Massachusetts Mut. Life Ins. Co. v Millstein, 129 F3d at 691-692 [2d Cir]; Solomon v Royal Maccabees Life Ins. Co., 243 Mich App at 382-383, 622 NW2d at 104). Notably, Northwestern has presented no evidence, either in support of its motion or in opposition to the plaintiff’s cross motion, that the plaintiff does not suffer from bipolar disorder and the other claimed conditions. Nor has it offered any evidence that the plaintiff’s conditions did not exist prior to the suspension of his license. Rather, Northwestern relies on the undisputed fact that the plaintiff treated patients right up until the date his license was suspended. Additionally, Northwestern asserts that the plaintiff stated in his application for disability benefits that he was unable to perform the duties of his occupation from the date of his suspension. Consequently, Northwestern argues, the plaintiff was not factually disabled at the time his license was suspended: he stopped practicing only because he was forbidden to practice, not because he was unable to practice.

Northwestern’s approach rejects inquiry into insureds’ competence at the principal tasks of their profession. It would cease the inquiry after determining whether the insured was performing those principal tasks at all. Otherwise, Northwestern argues, inquiry would be necessary [*5]as to an insured’s mental or physical status on “”any given day.”” While this approach has the benefit of clarity, it is substantially outweighed by common sense and the reasonable expectations of an insured (see Hannagan v Piedmont Airlines, Inc., 2010 WL 1235395, *, 2010 US Dist LEXIS 31472, *21-22 [ND NY]). Disability insurance is concerned with insureds’ ability—not just their attempt—to do their jobs (see id.). No one would knowingly use a doctor or lawyer, or any other professional or tradesperson, who shows up for work but performs incompetently. Thus, the fact that the plaintiff’s waiting room was filled with unwitting patients on the day the plaintiff’s license was suspended is not the end of the inquiry (see Damascus v Provident Life & Acc. Ins. Co., 1999 WL 51490 at *2-3, 1999 US App LEXIS 1234 at *9-11). We must also examine the ability of the insured to perform the principal tasks of the profession competently.

IV

Northwestern failed to establish its prima facie entitlement to summary judgment (see Zuckerman v City of New York, 49 NY2d 557, 562). The evidence it submitted in support of its motion failed to negate, prima facie, any single prerequisite for coverage (see Scarano v Wehrens, 46 AD3d 797, 798). First, Northwestern failed to establish that the policies were not in effect when the plaintiff’s disability arose. Second, its own evidence established that the plaintiff was under the regular care of a physician within a short period of time from when he sought benefits. And, third, it failed to establish that the plaintiff’s disability was not the result of an accident or sickness. Accordingly, the Supreme Court properly denied Northwestern’s motion (see Alvarez v Prospect Hosp., 68 NY2d 320, 324).

V

In support of his cross motion, the plaintiff presented his deposition testimony that he first began taking crystal meth in 2001 or 2002 and that in 2003 he went to see a drug therapist. He also testified that, at that time, a doctor who worked with the drug therapist prescribed Wellbutrin to treat his addiction. The plaintiff also submitted the affidavit of the drug therapist, Claudia Albetta, who stated that, during the time she treated the plaintiff, from March 2003 to November 2004, his “”symptoms and behavior were fully consistent with a person suffering from Bipolar Disorder”” and that it was her opinion at the time “”that he was self-medicating a chemical imbalance and in complete denial of his illness.””

Additionally, the plaintiff submitted evidence, in the form of affidavits or affirmations from his psychologist, Dr. Porter, and his treating psychiatrists, Drs. Hoffman, Kirschen, and Montgomery, that he suffers from Bipolar II Disorder and substance abuse secondary to that disorder. The doctors opined that the plaintiff had been suffering from Bipolar II Disorder for many years before they began treating him, and that, significantly, its effects rendered him unable to perform “”the principal duties of his occupation as a plastic surgeon, let alone safely and competently”” before his license was suspended. They agreed that this disorder caused the plaintiff to engage in the conduct for which he later lost his medical license.

Northwestern contends that the affidavits were conclusory, but we disagree. The doctors’ opinions were based on their examinations of the plaintiff, his history, and the statement of charges against him. This evidence, coupled with the plaintiff’s deposition testimony, established, prima facie, that the plaintiff’s Bipolar II Disorder and drug addiction were the primary causes of the plaintiff’s inability to practice his profession and that the plaintiff’s loss of his medical license was secondary. Thus, in his initial moving papers on the cross motion, the plaintiff carried his burden for summary judgment on the first cause of action in the amended complaint, alleging breach of contract (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

In opposition, Northwestern, which did not submit any evidence as to the plaintiff’s factual disability (see Paul Revere Life Ins. Co. v Bavaro, 957 F Supp 444, 449 [SD NY]), failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d at 324). Accordingly, that branch of the plaintiff’s cross motion which was for summary judgment on the first cause of action in the amended complaint, alleging breach of contract, should have been granted. In light of this determination, we need not reach the question of whether the Supreme Court properly declined to consider the evidence submitted by the plaintiff in his reply papers.

VI

The parties’ remaining contentions either are without merit or need not be addressed in light of the foregoing.

Accordingly, the order is modified, on the law, by deleting the provision thereof denying that branch of the plaintiff’s cross motion which was for summary judgment on the first [*6]cause of action in the amended complaint, alleging breach of contract, and substituting therefor a provision granting that branch of the cross motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from.

ENG, P.J., SKELOS and SGROI, JJ., concur.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the plaintiff’s cross motion which was for summary judgment on the first cause of action in the amended complaint, alleging breach of contract, and substituting therefor a provision granting that branch of the cross motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, with costs to the plaintiff.

ENTER:

Aprilanne Agostino

Clerk of the Court

Footnotes

Footnote 1:The exclusions under Section 3 relate to, among other things, pre-existing conditions and pregnancy and childbirth; these exclusions are not implicated in this appeal.”

Kupferstein v City of New York  2011-01084         2012 NY Slip Op 08698    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

REINALDO E. RIVERA, J.P.

JOHN M. LEVENTHAL

SHERI S. ROMAN

JEFFREY A. COHEN, JJ.

2011-01084

(Index No. 45171/07)

[*1]Iris Kupferstein, etc., respondent,

v

City of New York, appellant.

Michael A. Cardozo, Corporation Counsel, New York, N.Y.

(Margaret G. King, Sosimo J. Fabian, and Amy G. London of counsel),

for appellant.

Bamundo, Zwal & Schermerhorn, LLP (Alexander J. Wulwick,

New York, N.Y., of counsel), for

respondent.

DECISION & ORDER

In an action, inter alia, to recover damages for wrongful death, the defendant appeals from an order of the Supreme Court, Kings County (Velasquez, J.), dated December 21, 2010, which denied that branch of its motion which was for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and that branch of the defendant’s motion which was for summary judgment dismissing the complaint is granted.

On October 1, 2006, the plaintiff’s decedent suffered an asthma attack in his apartment and called 911. When a “”Basic Life Support”” ambulance arrived at the scene, the decedent was barely breathing. He later became unconscious. The emergency medical technicians requested an “”Advanced Life Support”” (hereinafter ALS) ambulance and placed a bag valve mask on the decedent. The ALS ambulance arrived a few minutes later. The paramedics placed the decedent on a cardiac monitor, started intravenous (hereinafter IV) fluids, intubated the decedent, and prepared him for transport. They moved the decedent by stretcher into the building’s elevator, where the decedent regained some consciousness and became combative, disconnecting his cardiac monitor and IV, and wedging himself in the elevator. A paramedic called the on-call physician for authority to administer the sedative Versed for the purpose of calming the decedent and to permit his removal from the elevator. The drug was administered to the decedent, who was then removed from the elevator. On the way to the ambulance, the decedent suffered cardiac arrest. He was revived and taken to the hospital. The decedent died on October 5, 2006.

The plaintiff commenced this action against the City of New York, alleging, inter alia, that the decedent’s death was caused by the negligence of the ambulance personnel in delaying the transport of the decedent to the hospital and in administering Versed to the decedent. The defendant moved, among other things, for summary judgment dismissing the complaint, contending that it could not be liable for any negligence because there was no special relationship between it and the decedent. The Supreme Court denied that branch of the defendant’s motion which was for summary judgment dismissing the complaint, finding that the special relationship doctrine did not apply. [*2]

The timing of the transport of the decedent from his residence to the hospital involved “”the quintessential purpose of the municipal ambulance system—transporting the patient to the hospital as quickly as possible”” (Applewhite v Accuhealth, Inc., 90 AD3d 501, 504). Similarly, the decedent was administered Versed in order to effectuate his transport from the elevator into the ambulance, and not for the purpose of providing medical treatment (cf. Kowal v Deer Park Fire Dist., 13 AD3d 489, 491). Accordingly, under the particular circumstances of this case, both the timing of the transport and the administration of Versed constituted ministerial governmental functions.

A municipality will not be held liable for the negligent performance of a ministerial governmental function unless the plaintiff establishes a special relationship with the public entity, creating a special duty of protection with respect to that individual (see Valdez v City of New York, 18 NY3d 69, 75; McLean v City of New York, 12 NY3d 194, 199; Laratro v City of New York, 8 NY3d 79, 82-83; Pelaez v Seide, 2 NY3d 186, 199-200; Lauer v City of New York, 95 NY2d 95, 102; Kircher v City of Jamestown, 74 NY2d 251, 257; Cuffy v City of New York, 69 NY2d 255, 260). “” A special relationship can be formed in three ways: (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation'””(McLean v City of New York, 12 NY3d at 199, quoting Pelaez v Seide, 2 NY3d at 199-200). Insofar as relevant in this case, to establish a special relationship, a plaintiff must show: “”(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking”” (Cuffy v City of New York, 69 NY2d at 260; see Laratro v City of New York, 8 NY3d at 82-83).

Here, the defendant made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that no special relationship existed between it and the decedent (see Cuffy v City of New York, 69 NY2d at 260; see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324). In opposition, the plaintiff failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562). Accordingly, the Supreme Court should have granted that branch of the defendant’s motion which was for summary judgment dismissing the complaint.

RIVERA, J.P., LEVENTHAL, ROMAN and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Lever v Roesch  2008-11118         2012 NY Slip Op 08699    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

REINALDO E. RIVERA, J.P.

RUTH C. BALKIN

JOHN M. LEVENTHAL

CHERYL E. CHAMBERS, JJ.

2008-11118

(Index No. 14538/06)

[*1]Mary Ellen Lever, appellant,

v

John Thomas Roesch, etc., et al., respondents.

Kaston Aberle & Levine, Mineola, N.Y. (Richard M. Aberle of

counsel), for appellant.

McElroy, Deutsch, Mulvaney & Carpenter, LLP, New York,

N.Y. (Brian W. Keatts and John

Cookson of counsel), for respondents.

DECISION & ORDER

In an action to recover damages for legal malpractice, the plaintiff appeals from an order of the Supreme Court, Nassau County (McCarty III, J.), entered November 12, 2008, which granted the defendants’ motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendants’ motion for summary judgment dismissing the complaint is denied.

The plaintiff allegedly sustained personal injuries when she tripped and fell over a hole in the parking lot of a shopping center. She retained the defendants to commence a personal injury action on her behalf against Breslin Realty Development Corp. (hereinafter Breslin), the owner of the property where she allegedly fell. Thereafter, the Supreme Court granted Breslin’s motion for summary judgment and dismissed the underlying action. Specifically, the Supreme Court found that, in opposition to Breslin’s prima facie showing of entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact as to whether Breslin either created or had actual or constructive notice of the alleged defect. The Supreme Court denied the plaintiff’s motion for leave to renew and reargue her opposition to Breslin’s motion.

The plaintiff subsequently commenced the instant action to recover damages for legal malpractice, alleging, inter alia, that the defendants failed to timely locate potential notice witnesses and to properly oppose Breslin’s motion for summary judgment, which resulted in the dismissal of the underlying action. The defendants moved for summary judgment dismissing the complaint in the instant action, and the Supreme Court granted their motion.

“”In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages”” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [internal quotation marks omitted]; see Lovino, Inc. v Lavallee Law Offs., 96 AD3d 910, 911-912; Verdi v Jacoby & Meyers, LLP, 92 AD3d 771, 772). “”To establish [*2]causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence”” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442; see Barbieri v Fishoff, 98 AD3d 703; Board of Mgrs. of Bay Club v Borah, Goldstein, Schwartz, Altschuler & Nahins, P.C., 97 AD3d 612, 613). “”To succeed on a motion for summary judgment, the defendant in a legal malpractice action must present evidence in admissible form establishing that the plaintiff is unable to prove at least one of these essential elements”” (Verdi v Jacoby & Meyers, LLP, 92 AD3d at 772 [internal quotation marks omitted]).

Here, the defendants did not establish, prima facie, that the plaintiff will be unable to prove at least one of the elements of legal malpractice, and thus failed to demonstrate their entitlement to judgment as a matter of law (see Affordable Community, Inc. v Simon, 95 AD3d 1047, 1048). Triable issues of fact exist, inter alia, as to whether the defendants were negligent in their representation of the plaintiff in the underlying action. In light of our determination, we need not address the sufficiency of the plaintiff’s opposition papers (see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

RIVERA, J.P., BALKIN, LEVENTHAL and CHAMBERS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Long Is. Light. Co. v Town of N. Hempstead          2011-07718         2012 NY Slip Op 08700    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

PETER B. SKELOS, J.P.

RUTH C. BALKIN

THOMAS A. DICKERSON

SYLVIA HINDS-RADIX, JJ.

2011-07718

(Index No. 11042/07)

[*1]Long Island Lighting Company, doing business as LIPA, respondent,

v

Town of North Hempstead, appellant, Eastern Locating Services, Inc., defendant.

Richard S. Finkel, Town Attorney, Manhasset, N.Y. (Lorienton

N.A. Palmer of counsel), for appellant.

Cullen and Dykman LLP, Brooklyn, N.Y. (Kevin C. McCaffrey

of counsel), for respondent.

Mound Cotton Wollan & Greengrass, New York, N.Y. (Paul

S. Danner, John F. Parker, and Renee

M. Plessner of counsel), for defendant

Eastern Locating Services, Inc.

DECISION & ORDER

In an action, inter alia, to recover damages for negligence, the defendant Town of North Hempstead appeals from so much of an order of the Supreme Court, Nassau County (Jaeger, J.), entered May 24, 2011, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion of the defendant Town of North Hempstead which was for summary judgment dismissing the second cause of action, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The defendant Town of North Hempstead failed to establish its prima facie entitlement to judgment as a matter of law dismissing, insofar as asserted against it, the first and third causes of action, which were to recover damages for negligence and breach of contract, respectively (see Rush v Swimming Pools by Jack Anthony, Inc., 98 AD3d 728, 729-730; City of Albany v Central Locating Serv., 228 AD2d 920, 922). Consequently, it was unnecessary to consider the papers submitted by the plaintiff in opposition to the motion insofar as they related to those causes of action (see Rush v Swimming Pools by Jack Anthony, Inc., 98 AD3d at 730). Accordingly, the Supreme Court properly denied those branches of the Town’s motion which were for summary judgment dismissing the first and third causes of action insofar as asserted against it.

The Town, however, met its prima facie burden with respect to that branch of its motion which was for summary judgment dismissing, insofar as asserted against it, the second cause of action, which sought damages for an alleged violation of General Business Law article 36 and 16 [*2]NYCRR part 753 (see City of Albany v Central Locating Serv., 228 AD2d at 922). Since, in opposition, the plaintiff failed to raise a triable issue of fact (see General Business Law § 765[1][b]; 16 NYCRR 753-4.6[a]), the Supreme Court should have granted that branch of the Town’s motion which was for summary judgment dismissing the second cause of action insofar as asserted against it.

The Town’s remaining contentions are either improperly raised for the first time on appeal or without merit.

SKELOS, J.P., BALKIN, DICKERSON and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Macris v Matta  2011-09643         2012 NY Slip Op 08701    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

WILLIAM F. MASTRO, J.P.

REINALDO E. RIVERA

CHERYL E. CHAMBERS

PLUMMER E. LOTT, JJ.

2011-09643

(Index No. 1354/11)

[*1]Mary Lynn Macris, et al., appellants,

v

Paula Seoud Matta, et al., respondents.

Levine & Vaysberg, P.C., Brooklyn, N.Y. (Alexander Levine of

counsel), for appellants.

Young/Sommer LLC, Albany, N.Y. (Kristin Laviolette Pratt and

Dean S. Sommer of counsel), for

respondents.

DECISION & ORDER

In an action to recover damages for private nuisance and trespass, the plaintiffs appeal from an order of the Supreme Court, Putnam County (Lubell, J.), dated August 25, 2011, which granted the defendants’ motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The Supreme Court properly granted the defendants’ motion for summary judgment dismissing the complaint. The defendants established their prima facie entitlement to judgment as a matter of law, as they have no affirmative duty to remedy a natural condition on their property such as the beaver dam at issue here (see Vanderwiele v Taylor, 65 NY 341; Frank v Garrison, 184 AD2d 852; Lichtman v Nadler, 74 AD2d 66). In response to this showing, the plaintiffs failed to raise a triable issue of fact (see Hilltop Nyack Corp. v TRMI Holdings, 272 AD2d 521; cf. Higgins v Village of Orchard Park, 277 AD2d 989).

The parties’ remaining contentions are without merit.

MASTRO, J.P., RIVERA, CHAMBERS and LOTT, JJ., concur.

ENTER: [*2]

Aprilanne Agostino

Clerk of the Court”

Motelson v Ford Motor Co.         2009-04215         2012 NY Slip Op 08702    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

ANITA R. FLORIO, J.P.

JOHN M. LEVENTHAL

LEONARD B. AUSTIN

SHERI S. ROMAN, JJ.

2009-04215

2009-06707

(Index Nos. 12660/01, 13545/01)

[*1]Elissa Motelson, etc., et al., respondents,

v

Ford Motor Company, et al., appellants. (Action No. 1) Michael J. Motelson, etc., et al., respondents, Ford Motor Company, et al., appellants. (Action No. 2)

Aaronson Rappaport Feinstein & Deutsch, LLP, New York, N.Y.

(Elliott J. Zucker of counsel), for appellant Ford Motor Company.

Wilson Elser Moskowitz Edelman & Dicker, LLP, White

Plains, N.Y. (Joanna M. Topping and

John M. Flannery of counsel), for

appellant Ford Motor Credit Company.

Allen L. Rothenberg (Pollack, Pollack, Isaac & De Cicco, New

York, N.Y. [Brian J. Isaac, Michael H.

Zhu, and Marc J. Rothenberg], of

counsel), for respondents in Action No.

1.

Kelner & Kelner, New York, N.Y. (Gerard K. Ryan, Jr., of

counsel), for respondents in Action No.

2.

DECISION & ORDER

In two related actions to recover damages for wrongful death and personal injuries, etc., incurred in a motor vehicle accident, (1) the defendant Ford Motor Company appeals, and the defendant Ford Motor Credit Company separately appeals, from stated portions of an amended order of the Supreme Court, Richmond County (Maltese, J.), dated March 26, 2009, which, inter alia, denied those branches of their respective motions which were pursuant to CPLR 4404 to set aside the jury verdict in favor of the plaintiffs in Action No. 2 and against them and for judgment as a matter of law or, alternatively, to set aside the jury verdict in favor of the plaintiffs in Action No. 2 and against them as contrary to the weight of the evidence and for a new trial, and granted that branch of the cross motion of the plaintiffs in Action No. 1 which was to set aside the jury verdict in favor of the defendants and against the plaintiffs in Action No. 1, and (2) the defendant Ford Motor Company appeals, and the defendant Ford Motor Credit Company separately appeals, from an order and judgment (one paper) of the same court dated June 17, 2009, which, inter alia, upon the amended order dated March 26, 2009, and upon the jury verdicts, and upon the stipulations of the plaintiffs in Action No. 2 to reduce the verdicts in their favor with respect to damages, is in favor of Michael J. Motelson, as Administrator of the Estate of Steven Motelson, in the principal sum of $1,327,000, is in favor of Enid Motelson in the principal sum of $3,673,000, and directed a new trial [*2]in Action No. 1 on the issue of damages only.

ORDERED that the appeals from so much of the amended order as denied those branches of the appellants’ respective motions which were pursuant to CPLR 4404 to set aside the jury verdict in favor of the plaintiffs in Action No. 2 and against them and for judgment as a matter of law or, alternatively, to set aside the jury verdict in favor of the plaintiffs in Action No. 2 and against them as contrary to the weight of the evidence and for a new trial, are dismissed; and it is further,

ORDERED that the amended order is reversed insofar as reviewed, on the law, without costs or disbursements, and that branch of the cross motion of the plaintiffs in Action No. 1 which was to set aside the jury verdict in favor of the defendants and against the plaintiffs in Action No. 1 is denied; and it is further,

ORDERED that the order and judgment is modified, on the law, on the facts, and in the exercise of discretion, (1) by deleting the sixth and seventh decretal paragraphs thereof, directing a new trial in Action No. 1 on the issue of damages only, and substituting therefor a provision directing the entry of a judgment dismissing the complaint in Action No. 1 in its entirety, and (2) by deleting the second, fifth, and eighth decretal paragraphs thereof, awarding Enid Motelson damages in the principal sum of $3,673,000 and costs in Action No. 2; as so modified, the order and judgment is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Richmond County, for a new trial with respect to damages for Enid Motelson’s economic loss only, unless within 30 days after service upon her of a copy of this decision and order, she shall serve and file in the Office of the Clerk of the Supreme Court, Richmond County, a written stipulation consenting to further reduce the verdict in her favor on the issue of damages for her economic loss from the principal sum of $3,673,000, to the principal sum of $674,599; in the event that Enid Motelson so stipulates, then the order and judgment, as so modified, reduced, and amended, is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Richmond County, for the entry of a judgment in Action No. 1.

The appeals from so much of the intermediate amended order as denied those branches of the appellants’ respective motions which were pursuant to CPLR 4404 to set aside the jury verdict in favor of the plaintiffs in Action No. 2 and against them and for judgment as a matter of law or, alternatively, to set aside the jury verdict in favor of the plaintiffs in Action No. 2 and against them as contrary to the weight of the evidence and for a new trial, must be dismissed, because the right of direct appeal therefrom terminated with the entry of judgment in Action No. 2 (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeals from that portion of the amended order are brought up for review and have been considered on the appeals from the order and judgment (see CPLR 5501[a][1]).

On July 1, 2000, the plaintiffs’ decedent, Steven Motelson, was driving a 1998 Ford Explorer sports utility vehicle, manufactured by Ford Motor Company (hereinafter Ford), owned by Ford Motor Credit Company (hereinafter Ford Credit), and leased to Steven Motelson’s business, Dome Property Management, Inc. Steven Motelson’s son, Gary Motelson, his grandsons Brian Motelson and Evan Motelson, and a third party, Mitchell Slepian, were passengers in the vehicle. While driving on Route 17, the vehicle accelerated, swerved, and rolled over 3¾ times. As a result of the accident, Steven Motelson and Brian Motelson died, and the remaining passengers sustained serious injuries.

Gary Motelson and his wife Elissa Motelson, individually and as administrators of the estate of Brian Motelson, and parents and natural guardians of Evan Motelson, commenced Action No. 1 against Ford and Ford Credit. During the pendency of the instant appeal, Gary Motelson died, and Elissa Motelson was substituted for him. Michael J. Motelson, as administrator of the estate of Steven Motelson, and Steven Motelson’s wife, Enid Motelson, individually, commenced Action No. 2 against Ford and Ford Credit. The Motelsons alleged, inter alia, that (1) the speed control cable of the vehicle was defectively designed, causing the vehicle to accelerate unexpectedly, (2) the seat belts were defectively designed, and (3) the roof support system was [*3]defectively designed, causing the roof to collapse on Steven Motelson’s head and causing his death. After trial, the jury found that Evan Motelson and Brian Motelson were not wearing their seatbelts, the front seatbelt system was not defective, and the speed control cable system was not defective. Those findings are not at issue on these appeals. However, the jury found that the roof support system, although reasonably fit for the ordinary purposes for which it was used, was defectively designed, that Ford was negligent in designing, inspecting, and testing it, and that the defect was “”a substantial factor in causing Steven Motelson’s injury and death.””

With respect to damages, the jury found that 100% of the injuries of Brian Motelson and Evan Motelson were attributable to the fact that they were not wearing seatbelts and, therefore, Brian’s estate and Evan were not entitled to recover any damages. The jury awarded no damages to Gary Motelson, and no damages to his wife, Elissa Motelson, on her derivative claim. However, Michael J. Motelson, as administrator of the estate of Steven Motelson, was awarded the principal sum of $1,500,000 for loss of earnings, and Enid Motelson was awarded the principal sum of $5,000,000 for economic loss.

The defendants separately moved, inter alia, pursuant to CPLR 4404 to set aside the jury verdict in favor of the plaintiffs in Action No. 2 and against them and for judgment as a matter of law or, alternatively, to set aside the jury verdict in favor of the plaintiffs in Action No. 2 and against them as contrary to the weight of the evidence and for a new trial. Gary Motelson, Elissa Motelson, and Evan Motelson, as plaintiffs in Action No. 1, cross-moved to set aside the jury verdict in favor of the defendants and against them in Action No. 1, inter alia, on the ground that Gary Motelson and Evan Motelson suffered emotional distress because they were in Steven Motelson’s zone of danger. The Supreme Court concluded that the plaintiffs established liability for Steven Motelson’s wrongful death based upon a design defect in the roof of the vehicle and based upon the “”second collision doctrine,”” under which a plaintiff must prove that “”the injuries were more severe than they would have been had the product been properly designed.”” The Supreme Court concluded that the award in the principal sum of $1,500,000 for lost earnings was excessive because the plaintiffs’ economic expert estimated that lost earnings amounted only to $1,327,000. Based upon evidence that Steven Motelson intended to expand his business, the Supreme Court further concluded that the award of $5,000,000 to Enid Motelson for economic loss resulting from Steven Motelson’s death was not excessive. However, the award for economic loss was reduced by $1,327,000 to $3,673,000, to avoid duplication. The Supreme Court further concluded that Gary Motelson and Evan Motelson suffered psychiatric injury because they were in Steven Motelson’s zone of danger when the roof of the vehicle caused Steven Motelson’s fatal head injuries and, therefore, that Gary Motelson, Elissa Motelson, and Evan Motelson were entitled to damages. The plaintiffs in Action No. 2 stipulated to accept a reduced award in the principal sums of $1,327,000 for lost earnings and $3,673,000 for economic loss other than lost earnings.

The jury’s finding that there was a design defect in the roof of the vehicle, which caused the roof to buckle during the crash and caused Steven Motelson’s death, was supported by legally sufficient evidence and the weight of credible evidence (see Adams v Genie Indus., Inc., 14 NY3d 535, 543-544; Cohen v Hallmark Cards, 45 NY2d 493, 499; Godfrey v G.E. Capital Auto Lease, Inc., 89 AD3d 471, 477; Nicastro v Park, 113 AD2d 129, 135) based, inter alia, on evidence of a safer and feasible design (see Adams v Genie Indus., Inc., 14 NY3d at 543-544), which “”would have avoided”” Steven Motelson’s life-threatening injuries (Burgos v Lutz, 128 AD2d 496, 497; see Garcia v Rivera, 160 AD2d 274, 276-277). Contrary to the defendants’ contention, the jury’s verdict sustaining that cause of action was not inconsistent with its rejection of a breach of warranty cause of action based upon whether the roof was fit for the ordinary purposes for which such system is used (see UCC 2-314[2][c]). The verdict sheet and the jury instructions directed the jury to consider these causes of action as separate and distinct, and authorized the jury to reach contrary conclusions on those two causes of action. Under the particular circumstances of this case, the jury could have concluded that the roof was fit for ordinary purposes but not crashworthy due to a design defect (see Larsen v General Motors Corp., 391 F2d 495, 500-501 [8th Cir]; Bradley v Earl B. Feiden, Inc., 8 NY3d 265, 273-274).

In addition, the jury’s finding that Steven Motelson was not negligent is not [*4]inconsistent with its finding that the speed control cable system was not defectively designed. The issue of whether there was a design defect in the speed control cable system was not “”inextricably interwoven”” with the issue of whether Steven Motelson was at fault in the happening of the accident (see Pavlou v City of New York, 8 NY3d 961, 963). The plaintiffs bore the burden of proving that the speed control cable system was defectively designed, while the defendants bore the burden of proving Steven Motelson’s comparative negligence (see CPLR 1412; 1A NY PJI3d 1:60). The jury found that the cause of the vehicle rolling onto the median was not proven.

The issue of whether Gary Motelson and Evan Motelson suffered emotional distress because they were placed in Steven Motelson’s zone of danger (see Bovsun v Sanperi, 61 NY2d 219, 230-231) was not submitted to the jury. The jury was instructed that, if it found that the plaintiffs were entitled to recover from the defendants, it “”must also include in [the] verdict damages for any mental suffering; emotional, psychological injuries. These are subsumed . . . into the pain and suffering questions”” (see 1B NY PJI3d 2:284). However, no separate causes of action sounding in infliction of emotional distress or zone-of-danger damages resulting from Steven Motelson’s injuries and death were submitted to the jury. The verdict sheet asked whether the negligent design of the roof was “”a substantial factor in causing Steven Motelson’s injuries and death,”” and not whether that defect caused injuries to any other plaintiff. Therefore, the Supreme Court should not have ruled that they were entitled to damages on that theory (see Pavel Yutsis Physician P.C. v Staten Is. Univ. Hosp., 47 AD3d 781).

With respect to damages for Steven Motelson’s wrongful death, EPTL 5-4.3 defines damages to be awarded for wrongful death as “”such sum”” which the factfinder “”deems to be fair and just compensation for the pecuniary injuries resulting from the decedent’s death to the persons for whose benefit the action is brought.”” The persons for whom a wrongful death action is brought are the distributees of the decedent (see DeLuca v Gallo, 287 AD2d 222, 225), who in this case were Steven Motelson’s wife, Enid Motelson, and his adult children. The jury awarded wrongful death damages to Enid Motelson, but not to the adult children. Since damages for wrongful death are limited to pecuniary loss, damages for loss of society, affection, conjugal fellowship and consortium are not recoverable. However, pecuniary loss consisting of loss of support, voluntary assistance, and possible inheritance and other incidental expenses, is recoverable (see Gonzalez v New York City Hous. Auth., 77 NY2d 663, 667).

The defendants do not contest that the plaintiffs established lost earnings of $1,327,000, and $174,599 for loss of services, for a total of $1,501,599 in damages. The calculation of damages for loss of inheritance is generally a question of fact for the jury, and does not require “”dollars and cents proof”” (Parilis v Feinstein, 49 NY2d 984, 985). The award may be based upon the decedent’s age, character, earning capacity, life expectancy, and the circumstances of the distributees (see Facilla v New York City Health & Hosps. Corp., 221 AD2d 498). Under all of the circumstances adduced at the trial, an award to Enid Motelson in the principal sum of $674,599 for economic loss, consisting of $174,599 for loss of services, and an additional $500,000 for loss of inheritance, constitutes reasonable compensation (see CPLR 5501).

The parties’ remaining contentions are either without merit (see Wengennoth v Formula Equip. Leasing, Inc., 11 AD3d 677, 680; Winckel v Atlantic Rentals & Sales, 159 AD2d 124, 129; cf. Starobin v Niagara Mach & Tool Works Corp., 172 AD2d 64, 65; Bickram v Case I.H,712 F Supp 18, 22 [ED NY]), or not properly before this Court.

FLORIO, J.P., LEVENTHAL, AUSTIN and ROMAN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Nasca v Sgro       2011-07875         2012 NY Slip Op 08703    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

MARK C. DILLON, J.P.

RUTH C. BALKIN

JOHN M. LEVENTHAL

L. PRISCILLA HALL, JJ.

2011-07875

(Index No. 116/11)

[*1]Dean Nasca, appellant,

v

Christina Sgro, et al., respondents, et al., defendants.

Dean Nasca, Bayport, N.Y., appellant pro se.

Dennis M. Cohen, County Attorney, Hauppauge, N.Y.

(Christopher A. Jeffreys of counsel), for

respondents.

DECISION & ORDER

In an action, inter alia, for injunctive relief and to recover damages for defamation, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Jones, Jr., J.), dated June 17, 2011, which granted the motion of the defendants Christina Sgro, Lisa Allen, Aristides Mojica, and County of Suffolk pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs.

The plaintiff’s children attend Academy Street Elementary School in Bayport. Upon the enrollment of each of the plaintiff’s children at the school, the plaintiff received a written school “”policy,”” which was apparently distributed to all parents, outlining the procedures for dropping off and picking up children at the school. This action arises from an incident that occurred on December 22, 2009, when the plaintiff allegedly had to wait for 25 minutes in traffic before being able to drop off his children because other parents who were dropping off children were not following the procedure specified in the written policy. The plaintiff confronted the defendant Christina Sgro, a crossing guard employed by the Suffolk County Police Department (hereinafter the Department), and told her that he expected her “”to do [her] friggin’ job.”” The next day, the plaintiff returned to the area, parked his car, and began videotaping Sgro as she worked. The plaintiff complained to the principal, as well as to Sgro’s supervisor, the defendant Lisa Allen, and to the commanding officer of the Department’s Fifth Precinct, the defendant Aristides Mojica, without receiving, in his view, a satisfactory response. Around the same time, Sgro filed an incident report with the Department alleging that the plaintiff had harassed her by cursing at her and videotaping her. Thereafter, the plaintiff commenced this action, inter alia, seeking to compel the defendants to enforce the school’s drop-off/pick-up procedure, and seeking damages for defamation and alleged violations of 42 USC §§ 1983 and 1985. In an order dated June 17, 2011, the Supreme Court granted the motion of Sgro, Allen, Mojica, and the County of Suffolk (hereinafter collectively the movants) pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them. The plaintiff appeals.

In considering a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), the sole criterion is whether from the complaint’s “”four corners factual allegations [*2]are discerned which taken together manifest any cause of action cognizable at law”” (Guggenheimer v Ginzburg, 43 NY2d 268, 275; see Country Pointe at Dix Hills Home Owners Assn., Inc. v Beechwood Org., 80 AD3d 643, 649; Fishberger v Voss, 51 AD3d 627, 628). Although the facts pleaded are presumed to be true and are to be accorded every favorable inference (see Gershon v Goldberg, 30 AD3d 372, 373), “”bare legal conclusions as well as factual claims flatly contradicted by the record are not entitled to any such consideration”” (Riback v Margulis, 43 AD3d 1023, 1023; see Baron v Galasso, 83 AD3d 626, 628), nor are legal conclusions or factual claims which are inherently incredible (see Greene v Doral Conference Ctr. Assoc., 18 AD3d 429, 430). Whether the complaint will withstand a subsequent motion for summary judgment, or whether the plaintiff will be able to prove his claim, is irrelevant to the determination of a pre-disclosure CPLR 3211 motion to dismiss (see Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34). Applying the above principles here, the Supreme Court properly granted the movants’ motion pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them.

“”To prevail on a cause of action to recover damages pursuant to 42 USC § 1983 against a municipality, the plaintiff must specifically plead and prove (1) an official policy or custom that (2) causes the claimant to be subjected to (3) a denial of a constitutional right”” (Jackson v Police Dept. of City of N.Y., 192 AD2d 641, 642, cert denied 511 US 1004; see Monell v New York City Dept. of Social Servs., 436 US 658, 690-691; Adickes v S. H. Kress & Co., 398 US 144, 167-168). A plaintiff may demonstrate the existence of a policy or custom by showing that the acts of the municipal agent were part of a widespread practice that, although not expressly authorized, constituted a custom or usage of which a supervising policy-maker must have been aware (see Board of County Comm’rs of Bryan Cty. v Brown, 520 US 397, 404-406; Monell v New York City Dept. of Social Servs., 436 US 658). Here, the plaintiff failed to allege that Sgro’s alleged misconduct was part of a widespread practice. Further, while he alleged that he had complained to her supervisor and to the commanding officer of the Fifth Precinct, he failed to allege that any final policy-maker had either expressly or implicitly condoned her conduct (see St. Louis v Praprotnik, 485 US 112; Ramos v City of New York, 285 AD2d 284). In addition, the plaintiff failed to adequately allege any facts to support a section 1983 claim based upon an equal protection violation (see Bower Assoc. v Town of Pleasant Val., 2 NY3d 617; Sonne v Board of Trustees of Vil. of Suffern, 67 AD3d 192), or the purported inadequate training and supervision of crossing guards (see Jackson v Police Dept. of City of N.Y., 192 AD2d 641).

With respect to the cause of action sounding in mandamus seeking to compel the defendants to enforce the school’s drop-off/pick-up procedure, mandamus is an extraordinary remedy which will lie only to enforce a clear legal right (see Matter of City of Newburgh v Public Empl. Relations Bd. of State of N.Y., 63 NY2d 793). The plaintiff’s complaint fails to allege sufficient facts to show that he has a clear legal right to the relief he seeks. In particular, while General Municipal Law § 208-a authorizes a municipality to appoint school crossing guards who have the authority to enforce the traffic laws on public streets (see People v Jennings, 75 Misc 2d 408), the plaintiff seeks the enforcement of a school’s drop-off/pick-up procedure on school property.

With respect to his cause of action alleging defamation, the plaintiff has failed to allege that he suffered any special damages (see Liberman v Gelstein, 80 NY2d 429; Boyle v Stiefel Labs, 204 AD2d 872; Matherson v Marchello, 100 AD2d 233). Moreover, he failed to allege that Sgro’s alleged defamatory statements imputed “”any kind of fraud, dishonesty, misconduct, or unfitness in conducting [his] professions”” so as to constitute slander per se (Kotowski v Hadley, 38 AD3d 499, 500 [internal quotation marks omitted]; see Gjonlekaj v Sot, 308 AD2d 471).

The plaintiff’s remaining contentions are without merit.

DILLON, J.P., BALKIN, LEVENTHAL and HALL, JJ., concur. [*3]

ENTER:

Aprilanne Agostino

Clerk of the Court”

“New York Cent. Lines, LLC v State of New York”               2011-03494         2012 NY Slip Op 08704    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

WILLIAM F. MASTRO, J.P.

PETER B. SKELOS

ANITA R. FLORIO

THOMAS A. DICKERSON, JJ.

2011-03494

[*1]New York Central Lines, LLC, respondent-appellant,

v

State of New York, appellant-respondent. (Claim No. 102648)

Eric T. Schneiderman, Attorney General, New York, N.Y. (Richard

Dearing and Simon Heller of counsel), for appellant-respondent.

Goldstein, Rikon & Rikon, P.C., New York, N.Y. (Jonathan

Houghton of counsel), for respondent-

appellant.

DECISION & ORDER

In a claim to recover damages arising from, inter alia, a partial taking of certain real property, the State of New York appeals, as limited by its brief, on the ground of excessiveness, from so much of a judgment of the Court of Claims (Marin, J.), dated January 11, 2011, as, upon a decision of the same court dated August 26, 2010, made after a nonjury trial, in effect, awarded the claimant the principal sum of $12,104,106 in damages for the permanent takings in fee and by easement, and the claimant cross-appeals, as limited by its brief, on the ground of inadequacy, from so much of the same judgment as only awarded it this sum for the permanent takings in fee and by easement.

ORDERED that the judgment is affirmed insofar as appealed from, without costs or disbursements; and it is further,

ORDERED that the judgment is reversed insofar as cross-appealed from, on the law and the facts, without costs or disbursements, and the matter is remitted to the Court of Claims for a determination as to the appropriate corridor factor to apply to the $12,104,106 “”across-the-fence”” estimate of the value of the subject property as furnished by the claimant’s expert, for the valuation and calculation of 5% of the market value of certain subject parcels of real property designated as Parcels 130A, 193F, 194J, and 195H, based on the “”across-the-fence”” value of these parcels as set forth in the claimant’s expert’s supplemental report, which shall include application of the appropriate corridor factor, representing direct damages for the State’s taking of permanent easements over these parcels, and for the entry of an appropriate amended judgment thereafter.

In January 2000, the State of New York appropriated, partially in fee and partially through permanent easement, several parcels of the claimant’s real property (hereinafter the appropriated property) for the purpose of expanding the Brooklyn-Queens Expressway. The appropriated property was part of a rail corridor owned by the claimant. In June 2000, the claimant filed a claim in the Court of Claims to recover damages for the taking of the appropriated property. The State appeals, on the ground of excessiveness, and the claimant cross-appeals, on the ground of [*2]inadequacy, from so much of the judgment of the Court of Claims, made after a nonjury trial, as awarded damages for the permanent takings, both in fee and by easement.

“”The measure of damages in a case involving the partial taking of real property is the difference between the value of the entirety of the premises before the taking and the value of the remainder after the taking”” (Gyrodyne Co. of Am., Inc. v State of New York, 89 AD3d 988, 989; see Diocese of Buffalo v State of New York, 24 NY2d 320, 323; Chester Indus. Park Assoc., LLP v State of New York, 65 AD3d 513). “”The measure of damages must reflect the fair market value of the property in its highest and best use on the date of the taking, regardless of whether the property is being put to such use at the time”” (Gyrodyne Co. of Am., Inc. v State of New York, 89 AD3d at 989 [internal quotation marks omitted]).

At a nonjury trial on the issue of damages, the claimant and the State each presented the testimony of experts with regard to valuation of the appropriated property. The experts agreed that the highest and best use of the appropriated property was as a rail corridor. They disagreed, however, as to the proper method for valuation.

The State’s expert advocated a cost, or reproduction cost less depreciation, approach to valuation, which is employed in valuing “”specialty”” properties (see generally Matter of Allied Corp. v Town of Camillus, 80 NY2d 351, 357; Matter of Al Turi Landfill, Inc. v Town of Goshen, 93 AD3d 786). However, the Court of Claims properly rejected this approach because, inter alia, the evidence demonstrated that the appropriated property did not constitute a specialty property. Additionally, the Court of Claims properly rejected the State’s lump-sum reduction of the market value of the appropriated property to 15% of the estimated value. Since the opinion of the State’s expert as to this particular issue was not supported with sufficient facts, figures, and calculations, his opinion in this regard lacked probative value (see Matter of County of Dutchess [285 Mill St.], 186 AD2d 891, 891-892; Matter of Northville Indus. Corp. v Board of Assessors of Town of Riverhead, 143 AD2d 135, 136).

“”Having rejected the State’s appraisal, the trial court was bound to either accept the claimant’s appraisal or explain the basis for any departure”” (Gyrodyne Co. of Am., Inc. v State of New York, 89 AD3d at 989; see Matter of City of New York [Reiss], 55 NY2d 885, 886; Matter of City of New York v Estate of Levine, 196 AD2d 654, 655).

The claimant’s expert, Charles W. Rex III, specialized in the appraisal of rail corridors. In offering his testimony and appraisal, he relied on, among other things, a number of scholarly articles on corridor valuation in support of his opinion as to the proper methodology for corridor valuation (see e.g. Charles F. Seymour, The Continuing Evolution of Corridor Appraising [Back to the Basics], Right of Way, May/June 2002, at 12-20; Arthur G. Rahn, The Enhancement Factor in Transportation Corridor Sales and Appraisals, Appraisal J., January 1999, at 89-92; John P. Dolman and Charles F. Seymour, Valuation of Transportation/Communication Corridors, Appraisal J., Oct. 1978, at 509-522).

Rex valued the appropriated property pursuant to a comparable sales approach, which “”is generally the preferred measure of a property’s value for assessment”” (Matter of Allied Corp. v Camillus, 80 NY2d at 356; see Matter of Al Turi Landfill, Inc. v Town of Goshen, 93 AD3d at 792). The specific comparable sales approach advocated by Rex was the “”corridor valuation”” method, which is, at its essence, a two-step process. First, the “”across-the-fence”” value (hereinafter the ATF value) of the land is estimated based on, among other things, the location of the corridor and market conditions. The ATF value is then multiplied by a “”corridor factor.”” According to Rex, the “”purpose of the corridor factor is to convert [ATF] value into the value of the corridor. Into market value. The corridor factor measures the importance of the corridor.”” In other words, when a property’s highest and best use is as a corridor, and the property is to remain as a corridor, that property will generally sell for more than the ATF value of the land, and the corridor factor figures this into the valuation.

The Court of Claims, in its decision dated August 26, 2010, upon which the judgment was entered, properly “”accept[ed] the validity of the comparable sales method”” advocated by Rex [*3]on behalf of the claimant. However, the court elected not to apply any corridor factor in reviewing the valuation. The Court of Claims’ determination in this regard was neither “”supported by [the] evidence [nor] adequately explained by the court”” (Matter of City of New York [Reiss], 55 NY2d at 886). Accordingly, we must remit the matter for a determination as to the appropriate corridor factor to be applied to the ATF value as estimated by the claimant’s expert, and for the entry of an appropriate amended judgment thereafter.

We also agree with the claimant that the Court of Claims erred in failing to award it direct damages for the State’s taking of permanent easements over those parcels of real property designated as Parcels 130A, 193F, 194J, and 195H. Rex testified, as supported by his supplemental appraisal report, that the State’s acquisition of those permanent easements caused a loss of 50% of the value of those parcels. The State’s appraiser testified, as supported by his report, that the State’s acquisition of permanent easements only caused a 5% loss of their overall value. The Court of Claims, however, found no loss in value with respect to these parcels.

As a general matter, “”[u]pon a condemnation of a permanent easement, the landowner is entitled to the difference in value of the premises without the burden of the easement and with the burden of the easement, together with the further direct and consequential damage, if any, occasioned to the lot arising from the use of the easement”” (City of Yonkers v A. & J. Cianciulli, Inc., 117 NYS2d 792, 794; see Matter of City of New York, 269 NY 64, 69-70; Donaloio v State of New York, 99 AD2d 335, 338, affd 64 NY2d 811). Upon the taking of a permanent easement, the damages must be determined based upon what the condemnor has the right to do under the terms of the easement as appropriated (see Morton v State of New York, 8 AD2d 49, 52). On the evidence before the Court of Claims, we conclude that the State is correct that the claimant is entitled to 5% of the market value of the aforementioned parcels for the State’s taking of these permanent easements. Accordingly, upon remittal, the Court of Claims shall determine this amount, based on the ATF value of these parcels, as set forth in Rex’s supplemental report, and shall include, in its calculations, what it deems to be the appropriate corridor factor.

MASTRO, J.P., SKELOS, FLORIO and DICKERSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

“Onewest Bank, FSB v Martinez”              2011-09246         2012 NY Slip Op 08705    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

WILLIAM F. MASTRO, J.P.

DANIEL D. ANGIOLILLO

SANDRA L. SGROI

ROBERT J. MILLER, JJ.

2011-09246

(Index No. 34371/09)

[*1]Onewest Bank, FSB, respondent,

v

Dina Martinez, et al., appellants, et al., defendants.

Campos, Lazar & Martin, PLLC, West Islip, N.Y. (Richard G.

Martin of counsel), for appellants.

Fein, Such & Crane, LLP, Chestnut Ridge, N.Y. (Michael S.

Hanusek of counsel), for respondent.

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Dina Martinez and Alnulfo Martinez appeal from an order of the Supreme Court, Suffolk County (Pastoressa, J.), dated July 5, 2011, which denied their motion pursuant to CPLR 5015, in effect, inter alia, to vacate a judgment of foreclosure and sale of the same court entered August 16, 2010, upon their default in appearing or answering the complaint, to set aside the foreclosure sale held pursuant thereto, and to vacate the referee’s deed in foreclosure.

ORDERED that the order is affirmed, with costs.

The Supreme Court properly denied the appellants’ motion pursuant to CPLR 5015, in effect, inter alia, to vacate a judgment of foreclosure and sale of the same court entered August 16, 2010, upon their default in appearing or answering the complaint, to set aside the foreclosure sale held pursuant thereto, and to vacate the referee’s deed in foreclosure. As to those branches of the appellants’ motion which were pursuant to CPLR 5015(a)(1), in effect, inter alia, to vacate the judgment of foreclosure and sale, the appellants failed to demonstrate a reasonable excuse for their default (see U.S. Bank N.A. v Slavinski, 78 AD3d 1167, 1167-1168; Dorrer v Berry, 37 AD3d 519, 520). As to those branches which were pursuant to CPLR 5015(a)(3), the appellants failed to establish that the plaintiff procured the judgment of foreclosure and sale by fraud, misrepresentation, or other misconduct (see Wells Fargo Bank N.A. v Hornes, 94 AD3d 755, 755).

MASTRO, J.P., ANGIOLILLO, SGROI and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

“PDK Labs, Inc. v G.M.G. Trans W. Corp.”              2011-01051         2012 NY Slip Op 08706    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

ANITA R. FLORIO, J.P.

RUTH C. BALKIN

PLUMMER E. LOTT

ROBERT J. MILLER, JJ.

2011-01051

(Index No. 10859/10)

[*1]PDK Labs, Inc., appellant,

v

G.M.G. Trans West Corp., et al., respondents.

Bradley S. Gross, New York, N.Y., for appellant.

Pezold, Smith, Hirschmann & Selvaggio, LLC, Huntington,

N.Y. (Raymond A. Selvaggio of

counsel), for respondents.

DECISION & ORDER

In an action, inter alia, to recover damages for conversion, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Emerson, J.), dated December 16, 2010, as denied its application for leave to enter judgment against the defendants G.M.G. Trans West Corp., Edmund Giza, and John Coviello on the issue of liability, upon their defaults in appearing or answering, granted those branches of the defendants’ cross motion which were to vacate the defaults of the defendants G.M.G. Trans West Corp., Edmund Giza, and John Coviello in appearing or answering the complaint, to extend the time for those defendants to appear and answer pursuant to CPLR 2004 and 3012(d), and to dismiss the complaint pursuant to CPLR 3211(a) insofar as asserted against the defendants Edmund Giza, John Coviello, and Ronald Horowitz for failure to state a cause of action, and denied, as academic, its motion pursuant to CPLR 306-b to extend the time to serve the summons and complaint upon the defendant Ronald Horowitz.

ORDERED that on the Court’s own motion, the notice of appeal from so much of the order as denied the plaintiff’s application for leave to enter judgment against the defendants G.M.G. Trans West Corp., Edmund Giza, and John Coviello on the issue of liability, upon their defaults in appearing or answering, is treated as an application for leave to appeal, and leave to appeal from that portion of the order is granted (see CPLR 5701[c]); and it is further,

ORDERED that the order is modified, on the law and in the exercise of discretion, (1) by deleting the provision thereof granting that branch of the defendants’ cross motion which was to dismiss the complaint insofar as asserted against the defendants Edmund Giza and John Coviello, and substituting therefor a provision denying that branch of the defendants’ cross motion, and (2) by deleting the provision thereof denying, as academic, the plaintiff’s motion pursuant to CPLR 306-b to extend the time to serve the summons and complaint upon the defendant Ronald Horowitz, and substituting therefor a provision denying the plaintiff’s motion on the merits; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff hired the defendant G.M.G. Trans West Corp. (hereinafter GMG) to transport, from New York to California, certain over-the-counter pharmaceuticals manufactured by [*2]the plaintiff. The complaint alleged that, once GMG took possession of the pharmaceuticals, it demanded payment for amounts allegedly owed to it by the plaintiff. When the plaintiff refused to pay, GMG refused to transport the pharmaceuticals and stored them in an undisclosed warehouse. The plaintiff demanded that GMG either deliver the pharmaceuticals to California or return them to the plaintiff, but GMG did not comply with the plaintiff’s demand.

The plaintiff commenced this action asserting one cause of action against GMG, two of its principals, Edward Giza and John Coviello, and its attorney, Ronald Horowitz. The plaintiff effected service upon GMG, Edmund Giza, and John Coviello. However, the plaintiff failed to complete service with respect to Ronald Horowitz.

GMG, Giza, and Coviello failed to timely appear or answer the complaint. The plaintiff interposed an application for leave to enter judgment against those defendants on the issue of liability, upon their defaults in appearing or answering. The defendants cross-moved to vacate the defaults of GMG, Giza, and Coviello, to extend their time to appear and answer pursuant to CPLR 2004 and 3012(d), and to dismiss the complaint pursuant to CPLR 3211(a)(7) insofar as asserted against the individual defendants. The defendants also, inter alia, cross-moved to dismiss the complaint insofar as asserted against Horowitz pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction. Thereafter, the plaintiff moved pursuant to CPLR 306-b to extend the time to serve the summons and complaint upon Horowitz.

The Supreme Court denied the plaintiff’s application for leave to enter a default judgment against GMG, Giza, and Coviello, and granted that branch of the defendants’ cross motion which was to vacate their defaults. The Supreme Court also granted that branch of the defendants’ cross motion which was to dismiss the complaint pursuant to CPLR 3211(a)(7) insofar as asserted against the individual defendants. Furthermore, the Supreme Court denied, as academic, the plaintiff’s motion pursuant to CPLR 306-b to extend the time to serve the summons and complaint upon Horowitz and denied that branch of the defendants’ cross motion which was to dismiss the complaint insofar as asserted against the defendant Ronald Horowitz pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction.

The defaults of GMG, Giza, and Coviello in appearing or answering the complaint were properly excused given the lack of any prejudice to the plaintiff resulting from the short two-week delay, the lack of willfulness on the part of these defendants who defaulted in appearing, the existence of potentially meritorious defenses, and the public policy favoring the resolution of cases on the merits (see Zeccola & Selinger, LLC v Horowitz, 88 AD3d 992, 993; Feder v Eline Capital Corp., 80 AD3d 554, 555; Stuart v Kushner, 39 AD3d 535, 536; Schonfeld v Blue & White Food Prods. Corp., 29 AD3d 673, 674). Accordingly, the Supreme Court providently exercised its discretion in denying the plaintiff’s application for leave to enter judgment against these defendants on the issue of liability, upon their defaults in appearing or answering, and in granting those branches of the defendants’ cross motion which were to vacate the defaults of those defendants in appearing or answering the complaint and to extend their time to appear and answer (see CPLR 2004, 3012[d]).

However, the Supreme Court erred in granting that branch of the defendants’ cross motion which was to dismiss the complaint pursuant to CPLR 3211(a)(7) insofar as asserted against the individual defendants. “”A party may move for judgment dismissing one or more causes of action asserted against [it] on the ground that . . . the pleading fails to state a cause of action”” (CPLR 3211[a][7]). “”When assessing the adequacy of a complaint in light of a CPLR 3211(a)(7) motion to dismiss, the court must afford the pleadings a liberal construction, accept the allegations of the complaint as true and provide plaintiff . . . the benefit of every possible favorable inference'”” (AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 591, quoting Leon v Martinez, 84 NY2d 83, 87). “”Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss”” (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19). Rather, a court must “”determine only whether the facts as alleged fit within any cognizable legal theory”” (Leon v Martinez, 84 NY2d at 87-88; see Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414). [*3]

Here, the complaint alleges a single cause of action to recover damages for conversion against each of the individual defendants. “”Conversion is the unauthorized assumption and exercise of the right of ownership over goods belonging to another to the exclusion of the owner’s rights”” (State of New York v Seventh Regiment Fund, 98 NY2d 249, 259 [internal quotation marks omitted]). “”[T]o establish a cause of action in conversion, the plaintiff must show legal ownership or an immediate superior right of possession to a specific identifiable thing and must show that the defendant exercised an unauthorized dominion over the thing in question . . . to the exclusion of the plaintiff’s rights”” (Batsidis v Batsidis, 9 AD3d 342, 343 [internal quotation marks omitted]; see Castaldi v 39 Winfield Assoc., 30 AD3d 458, 458).

“”A corporate officer may be liable for torts committed by or for the benefit of the corporation if the officer participated in their commission”” (Hamlet at Willow Cr. Dev. Co., LLC v Northeast Land Dev. Corp., 64 AD3d 85, 116; see Aguirre v Paul, 54 AD3d 302, 304; Retropolis, Inc. v 14th St. Dev. LLC, 17 AD3d 209, 211; Greenway Plaza Off. Park-1 v Metro Constr. Servs., 4 AD3d 328, 329-330). Accordingly, “”[a]n individual, even though acting for a corporation of which he is an officer, may be held liable for conversion”” (Melnick v Sable, 11 AD2d 1075, 1075; see Hinkle Iron Co. v Kohn, 229 NY 179, 184; Goldstein v Guida, 74 AD3d 1143, 1144; Ingram v Machel & Jr. Auto Repair, 148 AD2d 324, 325; Prudential-Bache Sec. v Golden Larch-Sequoia, 118 AD2d 487, 488; McCrea v McClenahan, 131 App Div 247, 248; see also 14A NY Jur 2d, Business Relationships § 777).

However, “”[a] director or officer of a corporation does not incur personal liability for its torts merely by reason of his official character”” (Greenway Plaza Off. Park-1 v Metro Constr. Servs., 4 AD3d at 329 [internal quotation marks omitted]). Accordingly, “”a corporate officer or agent is not liable for acts of conversion attributable to the corporation if he did not participate in and was not connected with the acts in any manner”” (14A NY Jur 2d, Business Relationships § 777; see Hinkle Iron Co. v Kohn, 229 NY at 184; Aguirre v Paul, 54 AD3d at 304; cf. Messiah’s Covenant Community Church v Weinbaum, 74 AD3d 916, 919; Shimamoto v S & F Warehouses, 257 AD2d 334, 340, mod 99 NY2d 165).

Here, affording the pleadings a liberal construction, accepting the allegations of the complaint as true, and providing the plaintiff with the benefit of every possible favorable inference, the complaint adequately alleges that the individual defendants personally participated in the allegedly wrongful withholding of the pharmaceuticals. Accordingly, the complaint states a cause of action against the individual defendants to recover damages for conversion (see Hinkle Iron Co. v Kohn, 229 NY at 184; Ingram v Machel & Jr. Auto Repair, 148 AD2d at 325; Prudential-Bache Sec. v Golden Larch-Sequoia, 118 AD2d at 488; McCrea v McClenahan, 131 App Div at 248; see also Goldstein v Guida, 74 AD3d at 1144).

In light of its conclusion that dismissal was warranted because the complaint failed to state a cause of action insofar as asserted against the individual defendants, the Supreme Court denied, as academic, the plaintiff’s motion pursuant to CPLR 306-b to extend the time to serve the summons and complaint upon Horowitz, and denied that branch of the defendants’ cross motion which was to dismiss the complaint insofar as asserted against Horowitz pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction. Thus, Horowitz, having obtained dismissal of the complaint insofar as asserted against him, was precluded from appealing those portions of the order which denied that branch of the defendants’ cross motion which was to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction (see Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 548). Since the plaintiff contends that the Supreme Court should have granted its motion to extend the time to serve Horowitz, and the defendants contend that the complaint should have been dismissed insofar as asserted against Horowitz for lack of personal jurisdiction, and since these issues have been briefed on appeal, we address the defendants’ alternative contention (see Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d at 548; Matter of Chiantella v Vishnick, 84 AD3d 797, 798; Norwalk v J.P. Morgan & Co., 268 AD2d 413, 415-416).

“”Service of the summons and complaint . . . shall be made within one hundred twenty [*4]days after the commencement of the action or proceeding”” (CPLR 306-b). “”If service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service”” (id.).

Here, it is undisputed that Horowitz was not timely served. The plaintiff failed to demonstrate good cause for its failure to timely serve Horowitz, or that an extension of time to serve him with the summons and complaint was warranted in the interest of justice (see CPLR 306-b; Khodeeva v Chi Chung Yip, 84 AD3d 1030, 1031; Calloway v Wells, 79 AD3d 786, 786-787). Accordingly, that branch of the defendants’ cross motion which was to dismiss the complaint insofar as asserted against Horowitz for lack of personal jurisdiction should have been granted, and the plaintiff’s motion pursuant to CPLR 306-b to extend the time to serve the summons and complaint upon Horowitz should have been denied on the merits (see CPLR 3211[a][8]; Alexander v Alexander, 32 AD3d 524, 524-525; Colon v Bailey, 26 AD3d 454, 455).

The parties’ remaining contentions either are without merit or need not be addressed in light of the foregoing.

FLORIO, J.P., BALKIN, LOTT and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Geehreng         2011-06592         2012 NY Slip Op 08707    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

REINALDO E. RIVERA, J.P.

MARK C. DILLON

JOHN M. LEVENTHAL

CHERYL E. CHAMBERS, JJ.

2011-06592

[*1]People of State of New York, respondent,

v

Robert Geehreng, appellant. Robert C. Mitchell, Riverhead, N.Y. (James H. Miller III of counsel), for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Ronnie Jane

Lamm of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated June 16, 2011, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C.

ORDERED that the order is affirmed, without costs or disbursements.

The County Court properly designated the defendant a level two sex offender. Contrary to the defendant’s contention, the County Court properly assessed 15 points under risk factor 11 (Drug or Alcohol Abuse-History of Abuse) (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 15 [2006]; People v Gulley, 99 AD3d 979; People v Deturris, 90 AD3d 727; People v Harris, 74 AD3d 767).

RIVERA, J.P., DILLON, LEVENTHAL and CHAMBERS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Gutierrez-Lucero           2011-00644         2012 NY Slip Op 08708    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

REINALDO E. RIVERA, J.P.

THOMAS A. DICKERSON

CHERYL E. CHAMBERS

LEONARD B. AUSTIN, JJ.

2011-00644

[*1]People of State of New York, respondent,

v

Gaspari Gutierrez-Lucero, appellant. (S.C.I. No. 5518/03)

APPEAL by the defendant from an order of the Supreme Court (Michael J. Brennan, J.), dated January 14, 2011, and entered in Kings County, which, after a hearing, designated him a level one sex offender pursuant to Correction Law article 6-C.

Lynn W. L. Fahey, New York, N.Y. (William Kastin of counsel;

David Lowry on the brief), for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard

Joblove and Morgan J. Dennehy of

counsel), for respondent.

OPINION & ORDER

RIVERA, J.P.””Auditur et altera pars,”” or “”The other side shall be heard as well,”” are words attributed to Lucius Annaeus Seneca, the Roman philosopher, in the tragedy Medea. This concept is encompassed in the legal principle known as “”due process.”” The instant appeal involves fundamental due process considerations in the context of Correction Law article 6-C, the Sex Offender Registration Act (hereinafter SORA). Particularly, we are presented with the issue of whether the defendant, a sex offender facing risk level classification under SORA, was deprived of his due process rights, where he did not receive notice of the SORA hearing, he did not waive his right to be present thereat, and the hearing was held in his absence. The Supreme Court determined, and the People presently take the position on appeal, that the defendant’s due process rights were not violated because he was ultimately adjudicated a level one sex offender, the lowest risk level assignable under SORA. Contrary thereto, for the reasons that follow, the defendant’s due process rights were violated and thus, we reverse the order appealed from.

I. Factual and Procedural Background

In 2003, the defendant was charged under Kings County Superior Court Information No. 5518/2003, with attempted sodomy in the first degree (Penal Law §§ 110.00, 130.50), relating to the sexual abuse of his girlfriend’s then-six-year-old daughter. The defendant apparently waived his right to be prosecuted by indictment. He pleaded guilty to the crime charged and was sentenced to a determinate term of imprisonment consisting of 3½ years, to be followed by five years’ postrelease supervision.

The record on appeal includes a “”NOTICE”” dated September 2, 2010, pursuant to Correction Law article 6-C, which was purportedly sent by the Supreme Court, Kings County, to the defendant at the Marcy Correctional Facility, directing him to appear before the Supreme Court on October 18, 2010. A copy of this notification was also apparently sent to assigned defense counsel [*2]Carol Schajer. Further, in an “”order to produce,”” entered September 2, 2010, the Supreme Court directed the Warden or Superintendent of Marcy Correctional Facility to produce the defendant for a SORA hearing on October 18, 2010, at 9:30 A.M.

The Case Summary and Risk Assessment Instrument

In a case summary dated August 26, 2010, the Board of Examiners of Sex Offenders (hereinafter the Board) stated that the defendant apparently entered the United States “”illegally circa 1992,”” and that the Bureau of Immigration and Customs Enforcement had “”lodged a deportation order against him.”” The Board added, “”it is possible that he may be deported to his native country of Mexico.””

In a risk assessment instrument dated August 27, 2010, the defendant was assessed a total of 90 points, which placed him in a presumptive level two category. The Board recommended that a departure from the presumptive risk level was not warranted.

The January 6, 2011, SORA HEARING

On January 6, 2011, the People and defense counsel appeared before the Supreme Court, Kings County, for a SORA hearing. The defendant was not present at this hearing.

At the commencement of the hearing, the People indicated that they had provided the Supreme Court and defense counsel with “”documentation”” from U.S. Immigration and Customs Enforcement showing that the defendant was deported to Mexico on September 3, 2010. In this regard, a letter addressed to Assistant District Attorney (hereinafter ADA) Allegra Santomauro from U.S. Immigration and Customs Enforcement Deportation Officer Lukasz Kubicz, dated October 29, 2010, states, in pertinent part, as follows:

“”As per your office[‘]s inquiry regarding [the defendant], ICE [Immigration and Customs Enforcement] official records shows that the subject was removed from the United States on September 03, 2010 from Harlingen, TX to Mexico. Removal was witnessed and confirmed by ICE/ERO officers. For immigration purposes this case is closed.””

Thereafter, the Supreme Court stated that “”the presence of the defendant”” was “”[w]aived for [purposes of] the hearing,”” adding “”[w]e will do the hearing.”” The People, however, interjected:

“”Your Honor, I want to make a record for the Court. I checked with the Department of Corrections, there is no waiver in the file. I have also spoken with our Appeals Bureau and as such without an effective waiver it is the People’s position that this hearing cannot happen because the defendant did not waive his right to be present [emphasis added].””

The court asked, “”[s]o how do I get him here?”” The court then stated:

“”He could be back in the country right now you [sic] without a requirement to register as a sex offender, I am going to go proceed with the hearing and then you could concede error on an appeal if you wish to. But I am not going to leave this probationer, I should say sex offender who has been deported from this country after serving a prison sentence for a sexual act against a youngster under ten years of age without a designation as a sex offender which would require him to register if he came back into the country.””

At this point, defense counsel registered an objection stating, “”I never had contact with this client and to my understanding he has never signed a waiver [of his right to be present at the SORA hearing]. And without my client’s input into this case I am unable to make effective arguments on his behalf.””

The People reiterated to the court that they did not “”choose to proceed”” with the hearing. Specifically, the ADA asserted, “”I don’t know how the defendant would know he is required to register if he is not present for this hearing.””

Notwithstanding the foregoing, the court continued, as follows: [*3]

“”The Court rules that his being deported amounts to a de facto waiver of this [sic] presence at the hearing and I am going to proceed and I will make my record then you can have your objection and you could find [sic] notice of appeal. We can litigate this issue.””

Defense counsel thereafter stated:

“”What I want to put on the record is that I was assigned this case on September 16th [2010]. I wrote a letter to my client at the facility. I was informed I was at—I am handing up a copy of the returned envelope. I am asking it be marked Defense A and moved into evidence as Defense A. There is an indication written in red ink 8/27/10, paroled or liens to immigration. So he was sent to immigration even before I was assigned to this case.””

The court then made the following statements:

“”I have a letter that is part of, I will make part of the hearing I am about to conduct.

“”From the United States Immigration Customs Enforcement Service dated October 29, 2010 indicating that [the defendant] was removed from the United States on September 3, 2010 from Harlingen, H-A-R-L-I-N-G-E-N, Texas to Mexico. Removal was witnessed and confined [sic] by ICU Immigrations Customs Enforcement officers for immigration purposes. The case is closed. The court has a file which contains a risk level assessment instrument and a case summary. The risk factors that are designated by the agency indicates that the defendant scores at 90 points. The only one that I have difficulty with is behavior while confined which is post offense. They assessed ten points for his unsatisfactory performance for behavior while in custody. That is not reflected in the record. The Court adjudicates that those ten points should not be assessed. All the other factors are can [sic] prove [sic] by clear and convincing evidence.

“”The Court makes a determination of a risk level assessment point total of 80 points which still places the defendant at a level two sexually violent offender. That is the ruling of the Court. I will sign a ruling to that effect.””

The January 14, 2011, SORA Hearing

On January 14, 2011, the People and defense counsel again appeared before the Supreme Court. The defendant was not present. At this proceeding, the court stated:

“”This was a risk level assessment hearing that was before me on January 6th. The People indicated to me that they would not go forward with the hearing because the defendant had been deported and that the court could not have jurisdiction over him.

“”However, it [was] the court’s opinion that just based on the underlying conviction, if he were here he could not contest the fact that I could adjudge him a risk level 1 offender based on the conviction by itself.

“”Balancing the interest of protection of the public and noting that the defendant was deported to the country of Mexico and the well-known ability of people to return to the United States from the country of Mexico, I’m going to in this case, over the objection of both sides, adjudge the defendant a level 1 offender as a risk level with the ability [*4]to open up the proceeding to a higher, to a possible higher level should he return to the United States illegally.

“”And I’m adjusting my—I’ve done some research and I tend to agree with the People that I would not have the jurisdiction without him being present to indicate the factors that would raise him to a 2 or a 3.

“”However, just based on the underlying conviction, I feel that I am balancing the interest of the due process rights of the defendant with the interest and the protection of the public, having him require to register even if he returns to the country illegally for the next twenty years as a Level 1 offender. And that’s my ruling.””

Defense counsel repeated that she had been assigned to represent the defendant after he had already been “”taken by immigration”” and that the People previously stated that there had been no signed waiver by the defendant of his right to be present at the SORA hearing. The court conceded, “”[t]here is no waiver.””

Defense counsel further argued that the case of Doe v Pataki (3 F Supp 2d 456) gave the defendant the “”absolute right to be present”” at the SORA hearing. Counsel added, “”[h]e’s clearly not even in the country, as far as we know. He has a right to know this. We have no idea if [the defendant] even received notice in this case. There are no exceptions to Doe versus Pataki that I am aware of.””

At this point, the court stated:

“”I am attempting to make one. Because having been deported because he was illegally in the country renders him unavailable to my jurisdiction.

“”If he were here, the best level assessment he could receive would be a 1 based on his conviction to the crime he was convicted of. And balancing his due process rights to even contest the Level 1 which I don’t believe he would have any legal basis to contest against the protection of the public should he enter this country again illegally, he would be required to register as a sex offender. I am designated [sic] him a Level 1 over your objection and you can file a notice of appeal.””

Defense counsel referred to the case of People v Gonzalez (69 AD3d 819), quoting therefrom, “”[t]o establish whether a defendant by failing to appear at the SORA hearing has waived the right to be present, evidence must be shown that the defendant was advised of the hearing date, of the right to be present at the hearing and that the hearing would be conducted in his or her absence.”” The court, however, indicated, “”I find exceptional circumstances that I placed on the record to adjudge him a Level 1 offender.”” Thus, the court stated that it was “”changing the [SORA] designation”” to a level one “”over the defendant’s objection.””

Consistent therewith, in an order dated January 14, 2011, the Supreme Court designated the defendant a level one sex offender.

II. The Parties’ Contentions on Appeal

On appeal, the defendant contends that his due process rights were violated when the SORA hearing was held in his absence and he did not waive his right to be present. He notes that he was deported before receiving any notice of the SORA hearing and his counsel never had an opportunity to communicate with him before the hearing. The defendant adds that both the People and defense counsel repeatedly objected to holding the hearing in the defendant’s absence without a waiver.

In their brief on appeal, the People, in effect, take a position contrary to their original stance in the first hearing. Now, the People argue that the Supreme Court’s decision to conduct the SORA risk assessment hearing in the defendant’s absence was proper because “”even though [the] defendant had not waived his right to attend the hearing, he was adjudicated a level one (low risk) [*5]sex offender, and thus the outcome of the hearing was the most favorable to him that was possible.”” Thus, the People contend that this Court should “”uphold”” the Supreme Court’s determination, designating the defendant a level one sex offender.

In reply, the defendant reiterates that his due process rights were violated. He asserts that the People waived their present claims that the lack of notice and the defendant’s absence from the hearing are inconsequential. Further, he contends that the People’s assertion that it was proper to hold the hearing in the defendant’s absence is without merit. In this regard, the defendant notes that, even with an adjudication as a level one, he nevertheless has protected due process rights. He argues, “”[u]nder the People’s reasoning, any offender who is to be adjudicated a level one offender need not receive notice of or be present at a SORA hearing . . . [b]ut due process is not subject to a sliding scale based upon the level of the penalty imposed.”” Moreover, he asserts that there are serious consequences relating to the subject sex offender designation which require him to register as a sex offender and subject him to criminal penalties if he fails to do so. In sum, he states that “”even when an individual is ultimately adjudicated a level one offender, the risk assessment hearing must comport with minimum State and Federal constitutional requirements of due process.'”” He insists that those requirements were not met in this case.

III. Legal Analysis

A SORA proceeding “”determines the risk of reoffense by a person convicted of a qualifying sex offense and requires that individual to register with law enforcement officials according to that risk level”” (People v Pettigrew, 14 NY3d 406, 408; see People v Mingo, 12 NY3d 563, 570-571). Pursuant to the statutory framework contained in Correction Law article 6-C, the Board “”shall”” make a recommendation to the court regarding an offender’s risk level classification, “”within sixty calendar days prior to”” the offender’s discharge, parole, or release from incarceration (Correction Law § 168-l[6]).

“”Correction Law § 168-n governs the procedure for the initial judicial determination of a sex offender’s risk level upon release from incarceration”” (People v Wyatt, 89 AD3d 112, 117). In relevant part, Correction Law § 168-n(3) provides that “”[n]o later than thirty days prior to the board’s recommendation, the sex offender shall be notified that his or her case is under review and that he or she is permitted to submit to the board any information relevant to the review.””

Further, “”[a]t least twenty days prior to the determination proceeding, the sentencing court shall notify the district attorney, the sex offender and the sex offender’s counsel, in writing, of the date of the determination proceeding and shall also provide the district attorney, the sex offender and the sex offender’s counsel with a copy of the recommendation received from the board and any statement of the reasons for the recommendation received from the board”” (Correction Law § 168-n[3]). This statute expressly sets forth that the notice “”shall”” include the following statement or a substantially similar statement:

“”This proceeding is being held to determine whether you will be classified as a level 3 offender (risk of repeat offense is high), a level 2 offender (risk of repeat offense is moderate), or a level 1 offender (risk of repeat offense is low), or whether you will be designated as a sexual predator, a sexually violent offender or a predicate sex offender, which will determine how long you must register as a sex offender and how much information can be provided to the public concerning your registration. If you fail to appear at this proceeding, without sufficient excuse, it shall be held in your absence. Failure to appear may result in a longer period of registration or a higher level of community notification because you are not present to offer evidence or contest evidence offered by the district attorney'”” (id.).

“”The written notice to the sex offender shall also advise the offender that he or she has a right to a hearing prior to the court’s determination, and that he or she has the right to be represented by counsel at the hearing”” (id.).

Correction Law § 168-n(3) also provides that “”[t]he court shall allow the sex offender to appear and be heard”” (id.). “”The state shall appear by the district attorney . . . who shall bear the burden of proving the facts supporting the determinations sought by clear and convincing evidence”” (id.).

Correction Law § 168-n(6) states that “”[i]f a sex offender, having been given notice, including the time and place of the determination proceeding in accordance with this section, fails [*6]to appear at this proceeding, without sufficient excuse, the court shall conduct the hearing and make the determinations in the manner set forth in subdivision three of this section.””

Significantly, a sex offender facing a risk level classification has certain due process rights including (1) a judicial determination of his risk level classification, (2) notice of the risk level assessment proceeding sufficiently in advance of the hearing to prepare a challenge, (3) notice of the proceeding must include a statement of its purpose and the Board’s recommended risk level classification, (4) representation by counsel, (5) prehearing discovery, (6) proof by the State of the facts supporting each risk factor by clear and convincing evidence, and (7) a right to appeal (see Doe v Pataki, 3 F Supp 2d at 471-473; People v David W., 95 NY2d 130, 133; People v Black, 33 AD3d 981, 981-982; People v Brooks, 308 AD2d 99, 103). These due process rights have been incorporated into Correction Law § 168-n (see People v Black, 33 AD3d at 982).

As stated in Doe v Pataki (3 F Supp 2d at 470), risk level classification hearings fall “”somewhere between a criminal proceeding in which a defendant is entitled to a full panoply of rights . . . and a simple administrative proceeding, in which participants have traditionally been afforded less process. Certainly, the due process protections required for a risk level classification proceeding are not as extensive as those required in a plenary criminal or civil trial”” (id.) [internal quotation marks and citation omitted]; see People v Erb, 59 AD3d 1020; People v Brooks, 308 AD2d at 105). Nevertheless, a “”SORA determination undeniably has a profound impact on a defendant’s liberty interest due to the registration and community notification provisions”” (People v Brooks, 308 AD2d at 105; see Doe v Pataki, 3 F Supp 2d at 466-468). For this reason, in assigning risk levels to convicted sex offenders under SORA, the aforementioned procedural protections “”are required to satisfy procedural due process”” (Doe v Pataki, 3 F Supp 2d at 471).

“” A sex offender facing risk level classification under the Sex Offender Registration Act (hereinafter SORA) has a due process right to be present at the SORA hearing but his presence at this noncriminal proceeding is entirely voluntary'””(People v Arrahman, 83 AD3d 680, 680, quoting People v Porter, 37 AD3d 797, 797; see People v Jackson, 94 AD3d 961; People v Gonzalez, 90 AD3d 1005, 1006; People v Gonzalez, 69 AD3d 819; People v Brooks, 308 AD2d at 103). Notably, this Court has held that “” [t]o establish whether a defendant, by failing to appear at a SORA hearing, has waived the right to be present, evidence must be shown that the defendant was advised of the hearing date, of the right to be present at the hearing, and that the hearing would be conducted in his or her absence'””(People v Arrahman, 83 AD3d at 680, quoting People v Porter, 37 AD3d at 797; see People v Jackson, 94 AD3d at 961; People v Gonzalez, 90 AD3d at 1006; People v Gonzalez, 69 AD3d at 819; People v Brooks, 308 AD2d at 106).

Where the record contains no evidence that the defendant received notice of the hearing date, this Court has determined that the defendant’s due process rights were violated (see People v Gonzalez, 90 AD3d at 1006; People v Gonzalez, 69 AD3d at 819). Similarly, where a defendant’s failure to appear at the hearing is not deliberate and the defendant did not waive his appearance, this Court has found that the defendant is entitled to a new risk level assessment hearing (see People v Arrahman, 83 AD3d at 680).

Applying the foregoing to the facts of this case, we conclude that the defendant’s due process rights were violated.

First, the record contains no evidence that the defendant ever received notice of the SORA hearing date and his right to be present (see People v Distaffen, 71 AD3d 1597, 1598). A “”NOTICE”” dated September 2, 2010, was sent by the Supreme Court to the defendant at the Marcy Correctional Facility, directing him to appear before the court for a SORA hearing that was to take place on October 18, 2010. Apparently, the defendant had been paroled to immigration authorities on August 27, 2010. The letter from the United States Immigration Customs Enforcement Service confirms that the defendant was deported from Texas to Mexico on September 3, 2010. Additionally, defense counsel was assigned to this case on September 16, 2010, approximately two weeks after the defendant had already been deported to Mexico, and counsel had not been able to communicate with the defendant.

Second, at the initial SORA hearing, the People advised the court that the defendant did not waive his right to be present at the hearing. Conceding the defendant’s failure to waive his right to be present, the People stated, “”without an effective waiver it is the People’s position that this hearing cannot happen because the defendant did not waive his right to be present.”” Defense counsel similarly informed the court, “”I never had contact with this client and to my understanding he has never signed a waiver [of his right to be present at the SORA hearing]. And without my client’s [*7]input into this case I am unable to make effective arguments on his behalf.”” The People reiterated to the court that they did not “”choose to proceed”” with the hearing. Specifically, ADA Santomauro asserted, “”I don’t know how the defendant would know he is required to register if he is not present for this hearing.””

Notwithstanding the foregoing, and despite the protestations by both the People and defense counsel, the Supreme Court proceeded with the SORA hearing in the defendant’s absence, even though he had not received notice, and had not properly waived his right to be present thereat. Although the court later revisited its initial level two designation and changed the defendant’s designation to a level one category, the defendant’s due process protections, as outlined in Doe v Pataki and incorporated into Correction Law § 168-n, were nevertheless violated.

As noted by the court in Doe v Pataki, “”[t]he Supreme Court has stressed that fair notice’ is the bedrock of any constitutionally fair procedure'”” (Doe v Pataki, 3 F Supp 2d at 471, quoting Lankford v Idaho, 500 US 110, 121). Sex offenders subject to SORA have a protected liberty interest that entitles them to the procedural due process rights discussed above (see Doe v Pataki, 3 F Supp 2d at 468). The Constitution, Correction Law § 168-n(3), and case law do not confine these constitutional rights to only level two and level three sex offenders. A dangerous precedent would be established if, as urged by the Supreme Court and the People on appeal, the hearing court could simply obviate due process rights by designating a sex offender in a level one category. This reasoning would render the requirement of a SORA hearing for, and the assignment of counsel to represent, a level one sex offender unnecessary. The Supreme Court’s belief that there is no basis to contest the outcome because a level one designation is the “”best. . . he could receive,”” creates a scenario that cannot be countenanced.

While, on appeal, the People admit that the defendant’s “”due process rights could have been violated by the court’s decision to conduct the risk assessment hearing in his absence without first obtaining from him a valid waiver of his right to be present,”” they now claim that level one was “”the best possible outcome”” and thus, he was not deprived of his right to be present. This new position, which is in stark contrast to their initial stance in the first hearing before the Supreme Court, is disingenuous. In their brief, the People rely upon certain cases where defendants were excluded from a Sandoval hearing and a sidebar conference (see e.g. People v Roman, 88 NY2d 18; People v Favor, 82 NY2d 254). Those cases involve distinct situations and are therefore inapposite.

Compounding the error, the People, who had the burden of proving the facts supporting the determination by clear and convincing evidence (see Correction Law § 168-n[3]), made no showing whatsoever to establish any SORA risk level determination. Notably, at the initial hearing, the People indicated that they “”choose”” not to proceed with the hearing. At the second proceeding, the ADA who appeared did not even address the court. Instead, the court assumed the People’s role.

IV. Conclusion

The Supreme Court’s attempt to fashion a “”remedy”” and make an “”exception”” to Doe v Pataki is offensive to the constitutional principles of due process and cannot be sustained in law and reason. “”The primary goal[] of SORA . . . is to protect the public from the danger of recidivism posed by sex offenders'”” (People v Buss, 11 NY3d 553, 558, quoting People v Stevens, 91 NY2d 270, 275 [internal quotation marks omitted]). In order to ensure that the rights of all persons are protected, that goal must invariably co-exist with the fundamental elements of due process, namely, notice and an opportunity to be heard, afforded to all sex offenders facing risk level classification under SORA. Those rights are not confined to only those sex offenders subject to level two and level three designations. Even where a sex offender is adjudicated a level one sex offender, due process requirements must be satisfied. Accordingly, the order is reversed, on the law, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent herewith.

DICKERSON, J.P., CHAMBERS and AUSTIN, JJ., concur.

ORDERED that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent herewith. [*8]

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v October             2011-09312         2012 NY Slip Op 08709    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

PETER B. SKELOS, J.P.

RUTH C. BALKIN

CHERYL E. CHAMBERS

ROBERT J. MILLER, JJ.

2011-09312

[*1]People of State of New York, respondent,

v

Michael October, appellant.

Lynn W. L. Fahey, New York, N.Y. (William Kastin of counsel;

Jamie M. Marr on the brief), for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard

Joblove and Linda Breen of counsel;

Deborah Wei on the brief), for

respondent.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (DiMango, J.), dated September 26, 2011, which, after a hearing, designated him a level three sexually violent offender pursuant to Correction Law article 6-C.

ORDERED that the order is reversed, on the law and in the exercise of discretion, without costs or disbursements, and the defendant is designated a level two sexually violent offender.

A court has the discretion to depart from the presumptive risk level based upon the facts in the record, but a departure from the presumptive risk level is warranted only where there exists an aggravating factor or mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the Sex Offender Registration Act guidelines (see People v Henry, 91 AD3d 927, 927; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006][hereinafter the Guidelines]). There must be clear and convincing evidence of a special circumstance to warrant an upward departure from the presumptive risk level (see People v Henry, 91 AD3d at 927; People v Wyatt, 89 AD3d 112, 120). A defendant seeking a downward departure has the initial burden of “”establishing the facts in support of its existence by a preponderance of the evidence”” (People v Wyatt, 89 AD3d at 128; see People v Watson, 95 AD3d 978, 979).

Where an aggravating or mitigating factor is shown to exist, the Board or a court “”may”” choose to depart if the factor indicates that the point score on the risk assessment instrument has resulted in an overassessment or underassessment of the offender’s actual risk to public safety (Guidelines at 7, 9, 14; see People v Wyatt, 89 AD3d at 121). “”Accordingly, a sufficient evidentiary showing of facts establishing the existence of an appropriate aggravating or mitigating factor is the threshold condition triggering the court’s discretionary authority to depart from the presumptive risk level”” (People v Wyatt, 89 AD3d at 121). Where the legal threshold condition has been met, reversal is warranted where the determination as to whether to depart constituted an improvident exercise of discretion given the circumstances of the case.

Here, the defendant was assessed a total risk factor score of 75 points, making him a presumptive level two sexually violent offender. Although we conclude that the Supreme Court [*2]providently exercised its discretion in declining to downwardly depart from presumptive risk level two to risk level one, we nevertheless conclude that, under the circumstances of this case, the Supreme Court should not have upwardly departed from presumptive risk level two to risk level three. We note that the People never requested an upward departure from the presumptive risk level and that the court did so on its own initiative despite the fact that the defendant’s total risk factor score placed him at the extreme low end of the range of scores encompassing level two sex offenders. Furthermore, some of the factors cited by the Supreme Court in support of its upward departure from the defendant’s presumptive risk level two designation, including the defendant’s lack of remorse for the victim, were adequately taken into account by the Guidelines (see People v Campbell, 98 AD3d 5, 14; People v Cohen, 73 AD3d 1003, 1004; see also Guidelines at 15-16; cf. People v Fuller, 83 AD3d 1025, 1026; People v Vega, 79 AD3d 718, 719; People v Smith, 78 AD3d 917, 918-919; People v Peana, 68 AD3d 737, 737). The remaining circumstances not taken into account by the Guidelines do not, under the circumstances, warrant an upward departure, and the Supreme Court improvidently exercised its discretion to the extent it based its determination upon them (cf. People v Stevens, 55 AD3d 892, 894; People v Abdullah, 31 AD3d 515, 516). Accordingly, the defendant should have been designated a level two sexually violent offender.

SKELOS, J.P., BALKIN, CHAMBERS and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Olin     2009-04297         2012 NY Slip Op 08710    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

MARK C. DILLON, J.P.

DANIEL D. ANGIOLILLO

ANITA R. FLORIO

JEFFREY A. COHEN, JJ.

2009-04297 ON MOTION

[*1]People of State of New York, respondent,

v

Albert Olin, appellant.

DECISION & ORDER

Motion by the defendant for leave to reargue an appeal from an order of the Supreme Court, Kings County, dated April 27, 2009, which was determined by decision and order of this Court dated March 13, 2012.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is,

ORDERED that the motion is granted and, upon reargument, the decision and order of this Court dated March 13, 2012 (People v Olin, 93 AD3d 706) is recalled and vacated, and the following decision and order is substituted therefor:

Lynn W. L. Fahey, New York, N.Y. (Kendra L. Hutchinson of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel; Robert Ho on the brief), for respondent.

Appeal by the defendant from an order of the Supreme Court, Kings County (Dowling, J.), dated April 27, 2009, which, after a hearing, designated him a level three sexual predator pursuant to Correction Law article 6—C.

ORDERED that the order is reversed, on the law, without costs or disbursements.

Under the circumstances of this case, the failure of the defendant’s attorney to commence a CPLR article 78 proceeding on behalf of the defendant in order to challenge the determination of the Board of Examiners of Sex Offenders (hereinafter the Board) that he was required to register under the Sex Offender Registration Act (see Correction Law article 6-C) as a sex offender in New York constituted ineffective assistance of counsel (cf. People v Reitano, 68 AD3d 954). Further, as the People correctly concede, the Board should have refrained from requiring the defendant to register as a sex offender, as his underlying California offense could not serve as a basis for eligibility (see Correction Law § 168-a[2][d][ii]).

The defendant’s remaining contentions need not be reached in light of our determination. [*2]

DILLON, J.P., ANGIOLILLO, FLORIO and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Shephard          2011-04752         2012 NY Slip Op 08711    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

REINALDO E. RIVERA, J.P.

RUTH C. BALKIN

JOHN M. LEVENTHAL

SYLVIA HINDS-RADIX, JJ.

2011-04752

[*1]People of State of New York, respondent,

v

Jerome Shephard, appellant. Steven Banks, New York, N.Y. (Bonnie C. Brennan of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard

Joblove and Anthea H. Bruffee of counsel; Jesse Oppenheim on the brief),

for respondent.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (J. Goldberg, J.), dated April 20, 2011, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.

ORDERED that the order is affirmed, without costs or disbursements.

The People bear the burden of establishing, by clear and convincing evidence, the facts supporting the assessment of points under the Guidelines issued by the Board of Examiners of Sex Offenders under New York’s Sex Offender Registration Act (hereinafter SORA) (see Correction Law § 168, et seq.; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006]; People v Harris, ______ AD3d ______, 2012 NY Slip Op 07649; People v Thompson, 95 AD3d 977, 977).

Here, as the defendant correctly contends, the People did not meet their burden of establishing that the defendant and the victim were strangers to each other. To the contrary, the evidence established that the victim had known the defendant since the defendant was a young boy and, even though she did not know his name, she knew his nickname. Under these circumstances, the Supreme Court erred in assessing points under risk factor 7: Relationship Between Offender and Victim (see Guidelines at 2; People v McGraw, 24 AD3d 525, 526).

Nonetheless, the Supreme Court’s proper assessments of points in other categories, including the remaining categories that the defendant challenges on appeal, were sufficient to establish that the defendant was presumptively a level three offender. The fact that assessments in several of the categories may have stemmed from the defendant’s mental illness did not result in impermissible double counting. The assessments in these categories “”represent cumulative, not duplicative, predictors of re-offense”” (People v Pietarniello, 53 AD3d 475, 476; cf. People v Howell, 82 AD3d 857, 857).

Moreover, the Supreme Court did not have the discretion to downwardly depart from the presumptive risk level. A court has the discretion to downwardly depart from the presumptive risk level in a SORA proceeding only after a defendant makes a twofold showing. First, a defendant must identify as a matter of law, an appropriate mitigating factor, namely, a factor which “”tends to [*2]establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the Guidelines”” (People v Wyatt, 89 AD3d 112, 124). Second, a defendant must prove by a preponderance of the evidence the facts necessary to support that mitigating factor (id. at 114, 124). In the absence of that twofold showing, the court lacks discretion to depart from the presumptive risk level (see People v Martin, 90 AD3d 728, 728-729; People v Wyatt, 89 AD3d at 124). Here, the defendant failed to make that showing.

RIVERA, J.P., BALKIN, LEVENTHAL and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Willingham       2004-11160         2012 NY Slip Op 08712    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

REINALDO E. RIVERA, J.P.

MARK C. DILLON

SHERI S. ROMAN

JEFFREY A. COHEN, JJ.

2004-11160

[*1]People of State of New York, respondent,

v

Richard Willingham, appellant.

Lynn W. L. Fahey, New York, N.Y. (William Kastin of counsel;

James Kylstra on the brief), for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard

Joblove and Morgan J. Dennehy of

counsel; Deborah Wei on the brief), for

respondent.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Gerges, J.), dated November 4, 2004, which, after a hearing, designated him a level three sexually violent offender pursuant to Correction Law article 6-C.

ORDERED that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for a new hearing and a new determination in accordance herewith.

On December 2, 1991, the defendant was convicted, upon his plea of guilty, of robbery in the first degree (two counts) (see Penal Law § 160.15[4]) and attempted rape in the first degree (see Penal Law §§ 110.00, 130.35[1]; see also People v Willingham, 194 AD2d 703).

On November 4, 2004, a hearing pursuant to the Sex Offender Registration Act (hereinafter SORA) was conducted. At the SORA hearing, the People argued that the defendant should be assessed a total of 125 points, including 30 points under risk factor 1 for being armed with a dangerous instrument. The defendant’s assigned counsel did not contest any of the points sought to be assessed against the defendant. Based upon certain arguments made by the defendant on his own behalf, the Supreme Court reduced the defendant’s risk score to 115 points, which still placed the defendant within the range of a risk level three offender. The Supreme Court designated the defendant a level three sexually violent offender, and the defendant appeals.

A sex offender facing risk level classification under SORA has a right to the effective assistance of counsel (see People v Bowles, 89 AD3d 171, 173; see also People v Benevento, 91 NY2d 708, 713-714; People v Baldi, 54 NY2d 137, 147; Strickland v Washington, 466 US 668).

The circumstances of this case, viewed in totality and as of the time of the representation, reveal that the defendant’s assigned counsel did not provide meaningful representation at the SORA hearing (see People v Baldi, 54 NY2d at 147; cf. People v Bowles, 89 AD3d 171; People v Reid, 59 AD3d 158, 158-159). Counsel did not controvert any of the points which the People sought to assess against the defendant. Indeed, counsel failed to litigate any aspect [*2]of the adjudication. Counsel remained silent throughout the entire SORA hearing, except for making two statements which showed an apparent misunderstanding as to how to challenge a SORA determination. Under the facts of this case, counsel’s failure to contest the assessment of 30 points under risk factor 1 was so egregious and prejudicial as to deprive the defendant of the effective assistance of counsel (cf. People v Benevento, 91 NY2d at 714; People v Bowles, 89 AD3d at 181).

Accordingly, the order must be reversed and the matter remitted to the Supreme Court, Kings County, for a new risk level assessment hearing and a new determination.

RIVERA, J.P., DILLON, ROMAN and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Rodriguez v Rodriguez   2011-04966         2012 NY Slip Op 08713    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

REINALDO E. RIVERA, J.P.

DANIEL D. ANGIOLILLO

JOHN M. LEVENTHAL

JEFFREY A. COHEN, JJ.

2011-04966

(Index No. 107898/07)

[*1]Douglas Rodriguez, appellant,

v

Perdomo M. Rodriguez, respondent, et al., defendants.

APPEAL by the plaintiff, by permission, in an action to recover damages for personal injuries, from an order of the Appellate Term for the Second, Eleventh, and Thirteenth Judicial Districts dated March 2, 2011 (see Rodriguez v Rodriguez, 31 Misc 3d 76), which affirmed an order of the Civil Court of the City of New York (Richard G. Latin, J.), entered February 17, 2010, in Queens County, granting the motion of the defendant Perdomo M. Rodriguez, in effect, pursuant to CPLR 5015(a)(4) to vacate a judgment of the same court entered July 14, 2009, upon his failure to appear or answer the complaint. Linda T. Ziatz, P.C., Forest Hills, N.Y., for appellant.

Bruno, Gerbino & Soriano, LLP, Melville, N.Y. (Charles W.

Benton of counsel), for respondent.

OPINION & ORDER

LEVENTHAL, J. On this appeal, we are asked to decide whether the 20-day time period to file proof of service of process, when service is made entered upon a person of suitable age and discretion pursuant to CPLR 308(2), applies to an action commenced in the Civil Court of the City of New York. For the reasons discussed below, we find that the 20-day time period does not apply.

In August 2007 the plaintiff commenced this action in the Civil Court of the City of New York, Queens County (hereinafter the Civil Court), to recover damages for personal injuries against Perdomo M. Rodriguez, Gabriel Perez, and Carmen Perez. The plaintiff alleged that on June 11, 2005, he was a passenger in a vehicle owned and operated by Rodriguez which collided with another vehicle owned by Carmen Perez and operated by Gabriel Perez. The plaintiff alleged that the defendants’ combined negligence and recklessness in the operation of the respective vehicles was the proximate cause of the serious injuries he allegedly sustained as a result of the accident.

According to the affidavit of service from the plaintiff’s process server dated December 18, 2007, a copy of the summons and complaint was delivered to Rodriguez’s wife at his home on December 13, 2007. On the following day, the plaintiff’s process server mailed copies of those documents to Rodriguez’s residence. However, proof of service was not filed with the Civil Court until January 2, 2009, more than one year after “”suitable age and discretion”” service was effected. Rodriguez did not appear in the action or answer the complaint.

On March 4, 2009, the plaintiff filed a notice of inquest against Rodriguez only. On July 14, 2009, following an inquest, judgment was entered against Rodriguez and in favor of the plaintiff in the principal sum of $25,000. In September 2009, the plaintiff commenced a separate [*2]action against Long Island Insurance Company, Rodriguez’s insurer, to enforce the judgment.

In February 2010, Rodriguez moved pursuant to CPLR 2004 and 2005 to vacate the default judgment upon the grounds that “”said default upon which the judgment was entered into should not have been granted, was excusable and was based upon a meritorious defense.”” In an affidavit, Rodriguez averred that neither he nor his wife were ever served with the summons and complaint.

In an order entered February 17, 2010, the Civil Court granted Rodriguez’s motion to vacate the default judgment in “”the interest of justice””, stressing the strong public policy in favor of resolving cases on the merits. The plaintiff then appealed to the Appellate Term for the Second, Eleventh, and Thirteenth Judicial Districts (hereinafter the Appellate Term). Before the Appellate Term, the plaintiff contended that since service had allegedly been effected by delivering the summons and complaint to Rodriguez’s wife, he was required to submit an affidavit from her in order to rebut the presumption of proper service created by the process server’s affidavit of service. As Rodriguez failed to submit an affidavit from his wife, and failed to explain that failure, the plaintiff argued that the Civil Court erred in vacating the default judgment.

By order dated March 2, 2011, the Appellate Term affirmed the order of the Civil Court. Initially, the Appellate Term agreed with the plaintiff that Rodriguez’s affidavit in support of his motion “”was insufficient to refute the presumption of proper service created by the affidavit of plaintiff’s process server.”” Nevertheless, the Appellate Term found that the plaintiff’s failure to file proof of service within the 20-day period set forth in CPLR 308(2) rendered the default judgment a nullity. In reaching its conclusion, the Appellate Term reasoned:

“”CPLR 308(2) requires that where, as here, service is made by delivering the summons within the state to a person of suitable age and discretion followed by mailing, proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later; service shall be complete ten days after such filing . . . .’ The New York City Civil Court Act similarly requires the filing of proof of service to complete service (CCA 410 [b]), and specifies that service of the summons and complaint shall be made within 120 days of the filing of the summons and complaint (CCA 411; cf. CPLR 306-b). In the Civil Court, following the filing of proof of service, which completes substituted service (see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 29A, CCA 402; cf. CPLR 308 [2] [service is complete 10 days after proof of service is filed]), the defendant has 30 days within which to appear and answer (CCA 402 [b]).

“”The rules set forth in the Civil Practice Law and Rules respecting the filing of proof of service in the event of substituted service by the nail and mail’ method are identical to the rules for filing proof of service in the event of substituted service by service on a person of suitable age and discretion followed by mailing (compare CPLR 308 [2] with CPLR 308 [4]). In Discover Bank v Eschwege (71 AD3d 1413 [2010]), where the plaintiff served by the nail and mail’ method (see CPLR 308 [4]) but, without obtaining judicial permission to do so, filed proof of service more than 20 days following such service, the Appellate Division, Fourth Department, vacated the default judgment that had been entered against the defendant; in so doing, that court commented that, while the failure to file proof of service within the time specified in CPLR 308 (4) was not a jurisdictional defect but was rather a procedural irregularity’ that could be cured by an order permitting the late filing of proof of service, absent an order curing the irregularity, the default judgment was a nullity requiring vacatur’ (71 AD3d at 1414, quoting Rosato v Ricciardi, 174 AD2d 937, 938 [1991]).

[*3]

“”Here, without obtaining an order permitting late filing, plaintiff filed proof of service of the summons with endorsed complaint approximately 375 days after serving defendant Rodriguez by substituted service pursuant to CPLR 308 (2). As there was no order permitting the late filing of plaintiff’s proof of service, the default judgment was a nullity requiring vacatur’ (id.), and we conclude that the Civil Court did not improvidently exercise its discretion in granting defendant Rodriguez’s motion to vacate the default judgment that had been entered against him. Accordingly, the order of the Civil Court is affirmed”” (Rodriguez v Rodriguez, 31 Misc 3d 76, 77-78).

The plaintiff moved for leave to reargue his opposition to Rodriguez’s motion to vacate, or, in the alternative, for leave to appeal to this Court. In support of his motion, the plaintiff argued, among other things, that the Appellate Term erred in applying the 20-day time period to file proof of service pursuant to CPLR 308(2) to this action because the New York City Civil Court Act (hereinafter the CCA) has its own provisions regarding the filing of proof of service.

In an order dated May 23, 2011, the Appellate Term denied the plaintiff’s motion. By decision and order on motion dated August 31, 2011, this Court granted the plaintiff’s motion for leave to appeal from the order dated March 2, 2011. On appeal, the plaintiff contends that the 20-day time period for filing proof of service pursuant to CPLR 308(2) is not applicable to an action commenced in the Civil Court.

This action was commenced in the Civil Court to recover damages for personal injuries in a sum not exceeding $25,000, which is the maximum amount recoverable in that court (see CCA 202). According to the affidavit of service submitted by the plaintiff, Rodriguez was served by service upon a person of “”suitable age and discretion,”” in that, on December 13, 2007, the summons and complaint were left with Rodriguez’s wife, at his home, and the summons and complaint were mailed to Rodriguez’s home on the following day. Service upon a party by way of delivery to a person of “”suitable age and discretion”” and then mailing is not explicitly provided for in the CCA. However, CCA 403, entitled “”Summons; method and place of service,”” effectively incorporates the method of service provisions of the CPLR by providing, as pertinent here, that “”Service of summons shall be made in the manner prescribed in supreme court practice”” (see Matter of Ebanks v Skyline NYC, LLC, 70 AD3d 943, 944; see also CCA 400[2]).

CPLR 308(2), in turn, provides that personal service upon a person can be made “”by delivering the summons within the state to a person of suitable age and discretion at the . . . dwelling place or usual place of abode of the person to be served and by . . . mailing the summons to the person to be served at his or her last known residence . . . in an envelope bearing the legend personal and confidential’ . . . such delivery and mailing to be effected within twenty days of each other.”” The affidavit of service submitted by the plaintiff’s process server complied with these provisions.

However, CPLR 308(2) further provides that “”proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later; service shall be complete ten days after such filing.”” The plaintiff asserts that this provision requiring the filing of proof of service is not applicable to an action brought in Civil Court. In support of this contention, the plaintiff relies upon the history of article 4 of the CCA.

Prior to 2005, CCA 409 required that a copy of a summons and complaint with proof of service be filed within 14 days after service. In September 2005, various provisions of the CCA were amended in order to implement a commencement by filing system in the Civil Court (see L 2005, ch 452; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 29A, Judiciary Court Acts, NY City Civ Ct Act § 411, 2012 Pocket Part, at 63) which was analogous to the commencement by filing system in effect in, inter alia, the Supreme Court (see CPLR 304; L 1992, ch 216). As pertinent here, CCA 409 was amended to provide that “”[p]roof of service of the summons and complaint . . . shall be filed with the clerk of the court in the county in which the action is brought”” (CCA 409[a]).

The 2005 amendment of CCA 409 eliminated the 14-day time period to file proof of service in an action commenced in the Civil Court. Discussing the import of the amendment in a practice commentary, Professor David Siegel notes that “”Section 409 was amended in 2005 to eliminate all reference to time periods for filing proof of service, substituting a simple requirement that the proof be filed with the clerk of the civil court in the county of venue, but specifying no time [*4]limit”” (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 29A, Judiciary Court Acts, NY City Civ Ct Act § 409, 2012 Pocket Part, at 60).

Another provision relevant to our consideration is CCA 411. As part of the implementation of a commencement by filing system in the Civil Court, CCA 411 currently provides that service of a summons and complaint must be made within 120 days of the filing thereof and permits a court, upon good cause shown, to extend the time for service. In addition, under the CCA’s scheme for service of process, unless service is made by personal delivery, service in the Civil Court is complete upon filing of proof of service (see CCA 402[b]; 410). By contrast, where a defendant is served by personal delivery, service is complete immediately (see CCA 402[a]; 410).

A review of the foregoing provisions makes clear that the 20-day time period to file proof of service contained in CPLR 308(2) was never applicable to an action commenced in the Civil Court because, prior to 2005, proof of service had to be filed within 14 days of service. Presently, there is no deadline to file proof of service in an action commenced in the Civil Court (see CCA 409). In practical terms, this means that a defendant’s time to answer a complaint in the Civil Court is not triggered until proof of service is filed, unless that defendant was personally served (see CCA 402 [if personally served, a defendant has 20 days to appear and answer; if not personally served, a defendant has 30 days from filing of proof of service to appear and answer]; 410).

CCA 2102, entitled “”Civil practice; general provisions; CPLR applicable”” states:

“”The CPLR and other provisions of law relating to practice and procedure in the supreme court, notwithstanding reference by name or classification therein to any other court, shall apply in this court as far as the same can be made applicable and are not in conflict with this act”” (emphasis added).

Just such a conflict would be created if the CPLR 308(b) 20-day deadline for filing proof of service is applied to Civil Court actions. Considering that CCA 409 previously required a plaintiff to file proof of service (except with personal delivery) within 14 days of service, and the current version of CCA 409 eliminated the 14-day time period for filing proof of service, the application of the 20-day time period to file proof of service set forth in CPLR 308(2) conflicts with CCA 409. The replacement of that portion of CCA 409 which required the filing of proof of service within 14 days of service, with a provision deleting such a deadline, reflects a deliberate choice by the Legislature to discard a specific time period to file proof of service in actions commenced in the Civil Court. Moreover, while some may question why no deadline was imposed by the Legislature for the filing of proof of service in a Civil Court action, it is not for the courts to legislate such a deadline. If the Legislature deems it prudent to require a plaintiff to file proof of service with the clerk of the Civil Court within a certain time period, it can enact such legislation. For example, the Legislature can mandate that the filing provisions of CPLR 308(2) apply to the filing of proof of service in Civil Court actions. Absent any legislative directive, we are constrained to allow the plaintiff to file his proof of service more than one year after such service.

Thus, the Appellate Term should not have applied the 20-day time period to file proof of service set forth in CPLR 308(2), as that provision conflicts with the current version of CCA 409 (see CCA 2102). Since the current version of CCA 409 does not include a deadline for filing the proof of service, the Appellate Term erred when it found that the plaintiff’s filing of the proof of service approximately 375 days after serving Rodriguez was untimely (cf. Chavez v 407 Seventh Ave. Corp., 39 AD3d 454).

Rodriguez’s reliance upon Discover Bank v Eschwege (71 AD3d 1413) to impose a 20-day time period to file proof service pursuant to CPLR 308(2) is misplaced, as that case involved an action commenced in the Supreme Court, not the Civil Court.

Once proof of filing of service in this case was actually filed on January 2, 2009, service became complete. Accordingly, Rodriguez had 20 days to answer or move to extend his time. He did neither. Hence, Rodriguez defaulted. As the Appellate Term correctly determined, Rodriguez’s affidavit submitted in support of his motion was insufficient to vacate the judgment. Although Rodriguez did not specify which subparagraph of CPLR 5015 he relied upon, his affidavit suggested that he was seeking to vacate his default pursuant to CPLR 5015(a)(4) on the ground of lack of jurisdiction. However, he failed to demonstrate his entitlement to vacatur on this ground.

The affidavit from the plaintiff’s process server constituted prima facie evidence of [*5]proper service pursuant to CPLR 308(2), and Rodriguez’s unsubstantiated denial of receipt was insufficient to rebut the presumption of proper service (see US Natl. Bank Assn. v Melton, 90 AD3d 742; Prospect Park Mgt., LLC v Beatty, 73 AD3d 885, 886; Sturino v Nino Tripicchio & Son Landscaping, 65 AD3d 1327; Beneficial Homeowner Serv. Corp. v Girault, 60 AD3d 984; Mortgage Elec. Registration Sys., Inc. v Schotter, 50 AD3d 983). Furthermore, since Rodriguez did not submit an affidavit from his wife, to whom the summons and complaint were delivered, Rodriguez failed to rebut the presumption of proper service.

Rodriguez’s remaining contention is without merit.

Accordingly, the order of the Appellate Term dated March 2, 2011, is reversed, on the law, the order of the Civil Court entered February 17, 2010, is reversed, and Rodriguez’s motion, in effect, pursuant to CPLR 5015(a)(4) to vacate the judgment of the Civil Court entered July 14, 2009, is denied.

RIVERA, J.P., ANGIOLILLO and COHEN, JJ., concur.

ORDERED that the order of the Appellate Term for the Second, Eleventh, and Thirteenth Judicial Districts dated March 2, 2011, is reversed, on the law, with costs, the order of the Civil Court of the City of New York, Queens County, entered February 17, 2010, is reversed, and the motion of the defendant Perdomo M. Rodriguez, in effect, pursuant to CPLR 5015(a)(4) to vacate the judgment of the same court entered July 14, 2009, is denied.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Rodriguez v Zabala          2011-09957         2012 NY Slip Op 08714    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

REINALDO E. RIVERA, J.P.

THOMAS A. DICKERSON

JOHN M. LEVENTHAL

PLUMMER E. LOTT, JJ.

2011-09957

2011-09960

(Index No. 22855/09)

[*1]Marisol Rodriguez, et al., appellants,

v

Josue Zabala, respondent.

James M. Visser, Bronx, N.Y., for appellants.

Adams, Hanson, Rego, Carlin, Hughes, Kaplan & Fishbein,

Lake Success, N.Y. (Jacqueline Doody

of counsel), for respondent.

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, etc., the plaintiffs appeal (1), as limited by their brief, from so much of an order of the Supreme Court, Queens County (Taylor, J.), dated October 5, 2011, as granted that branch of the defendant’s motion which was for summary judgment dismissing the causes of action to recover damages for personal injuries on the ground that the plaintiff Marisol Rodriguez did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident, and denied their cross motion, inter alia, for summary judgment on the issue of serious injury, and (2) from an order of the same court, also dated October 5, 2011.

ORDERED that the appeal from the second order dated October 5, 2011, is dismissed as abandoned; and it is further,

ORDERED that the first order dated October 5, 2011, is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the defendant.

The defendant met his prima facie burden of showing that the plaintiff Marisol Rodriguez did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). The defendant submitted competent medical evidence establishing, prima facie, that the alleged injuries to the cervical and lumbar regions of the plaintiff Marisol Rodriguez’s spine did not constitute serious injuries within the meaning of Insurance Law § 5102(d) (see Moran v Kollar, 96 AD3d 811; Ramkalawon v Correa, 95 AD3d 982; Rodriguez v Huerfano, 46 AD3d 794, 795).

In opposition, the plaintiffs failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted that branch of the defendant’s motion which was for summary judgment dismissing the causes of action to recover damages for personal injuries. [*2]

The appeal from the second order dated October 5, 2011, must be dismissed as abandoned (see Sirma v Beach, 59 AD3d 611, 614), as the plaintiffs do not seek reversal of that order in their brief.

The plaintiffs’ remaining contentions are without merit.

RIVERA, J.P., DICKERSON, LEVENTHAL and LOTT, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Saldarriaga v Moreno     2011-06786         2012 NY Slip Op 08715    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

PETER B. SKELOS, J.P.

CHERYL E. CHAMBERS

SANDRA L. SGROI

SYLVIA HINDS-RADIX, JJ.

2011-06786

(Index No. 4465/05)

[*1]Juan Saldarriaga, et al., appellants,

v

German Moreno, et al., defendants, Nicholas Viola, respondent.

Lozner & Mastropietro, Brooklyn, N.Y. (Elizabeth Mark

Meyerson of counsel), for appellants.

James F. Sullivan, P.C., New York, N.Y. (Kyle B. Stefanczyk

of counsel), for respondent.

Newman & Newman LLP, Jamaica, N.Y. (Erwin B. Newman

of counsel), for defendant German

Moreno.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Agate, J.), entered May 26, 2011, as granted that branch of the motion of the defendant Nicholas Viola which was for summary judgment dismissing the complaint insofar as asserted by the plaintiff Juan Saldarriaga against him on the ground that the plaintiff Juan Saldarriaga did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.

ORDERED that the appeal by the plaintiff Alvaro Saldarriaga is dismissed, as he is not aggrieved by the portion of the order appealed from (see CPLR 5511); and it is further,

ORDERED that the order is reversed insofar as appealed from by the plaintiff Juan Saldarriaga, on the law, and that branch of the motion of the defendant Nicholas Viola which was for summary judgment dismissing the complaint insofar as asserted by the plaintiff Juan Saldarriaga against him is denied, and a subsequent order of the same court entered December 14, 2011, is vacated; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff Juan Saldarriaga, payable by the respondent.

The defendant Nicholas Viola failed to meet his prima facie burden of demonstrating that the plaintiff Juan Saldarriaga (hereinafter the injured plaintiff) did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350; Gaddy v Eyler, 79 NY2d 955, 956-957). Viola’s motion papers failed to adequately address the injured plaintiff’s claim, clearly set forth in the bill of particulars, that he sustained a medically determined injury or impairment of a nonpermanent nature which [*2]prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for not less than 90 days during the 180 days immediately following the subject accident (cf. Tinsley v Bah, 50 AD3d 1019, 1019-1020).

Since Viola failed to meet his prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiffs in opposition were sufficient to raise a triable issue of fact (see generally Stukas v Streiter, 83 AD3d 18, 24).

Accordingly, the Supreme Court erred in granting that branch of Viola’s motion which was for summary judgment dismissing the complaint insofar as asserted by the injured plaintiff against him. In light of our determination, a subsequent order of the same court entered December 14, 2011, which, inter alia, upon, in effect, granting reargument, adhered to the determination in the order entered May 26, 2011, granting that branch of Viola’s motion, and, sua sponte, in effect, directed the dismissal of the complaint insofar as asserted against the defendant German Moreno, must be vacated.

SKELOS, J.P., CHAMBERS, SGROI and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Sanchez v Steenson        2011-11520         2012 NY Slip Op 08716    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

DANIEL D. ANGIOLILLO, J.P.

SANDRA L. SGROI

JEFFREY A. COHEN

ROBERT J. MILLER, JJ.

2011-11520

(Index No. 4782/08)

[*1]Franklyn Sanchez, appellant,

v

Frederick J. Steenson, respondent.

Zlotolow & Associates, P.C., Sayville, N.Y. (Anthony J. Bilello

of counsel), for appellant.

Richard T. Lau (Rivkin Radler LLP, Uniondale, N.Y. [Evan H.

Krinick and Cheryl F. Korman], of

counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Pastoressa, J.), entered November 10, 2011, which, upon a jury verdict on the issue of liability, is in favor of the defendant and against the plaintiff dismissing the complaint.

ORDERED that the judgment is reversed, on the law, with costs, the complaint is reinstated, and the matter is remitted to the Supreme Court, Suffolk County, for a new trial.

At trial, the plaintiff testified that he was traveling eastbound on South Railroad Avenue in the Town of Babylon when the defendant’s westbound vehicle veered into his lane and struck his car on the driver’s side fender and front driver’s side headlight. The defendant, however, testified that he was completely stopped within a left-turn lane for approximately 10 seconds when the plaintiff’s vehicle came into his lane, approximately five feet in front of him, and struck his vehicle head on. This contrasting testimony presented a credibility issue. The trial court thereafter permitted the defendant to admit into evidence a police accident report, which described the accident, without attributing the information to any witness, in a manner that was nearly identical to that testified to by the defendant and directly contrary to that which was testified to by the plaintiff. The report was prepared by a police officer who testified that he did not witness the accident, but based his report solely on what he personally observed at the accident scene. The officer also testified that he did not conduct an investigation of any kind. The conclusory statement as to how the accident occurred constituted inadmissible hearsay (see Cheul Soo Kang v Violante, 60 AD3d 991, 992; Quaglio v Tomaselli, 99 AD2d 487, 488). The error in admitting the report cannot be considered harmless, as it bore on the ultimate issue to be determined by the jury (see Cheul Soo Kang v Violante, 60 AD3d at 992; Noakes v Rosa, 54 AD3d 317; Hatton v Gassler, 219 AD2d 697; Gagliano v Vaccaro, 97 AD2d 430; Murray v Donlan, 77 AD2d 337).

Accordingly, the judgment must be reversed and the matter remitted to the Supreme Court, Suffolk County, for a new trial. [*2]

ANGIOLILLO, J.P., SGROI, COHEN and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

“Sierra v 4401 Sunset Park, LLC” 2011-08376         2012 NY Slip Op 08717    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

WILLIAM F. MASTRO, J.P.

PLUMMER E. LOTT

SHERI S. ROMAN

JEFFREY A. COHEN, JJ.

2011-08376

(Index No. 32786/08)

[*1]Juan Sierra, plaintiff,

v

4401 Sunset Park, LLC, et al., defendants third-party plaintiffs-respondents; LM Interiors Contracting, LLC, third-party defendant- respondent, Scottsdale Insurance Company, third-party defendant-appellant (and a second third-party action).

Goldberg Segalla, LLP, Albany, N.Y. (Matthew S. Lerner of

counsel), for third-party defendant-appellant.

Margaret G. Klein & Associates, New York, N.Y. (Brill &

Associates, P.C. [Corey Reichardt], of

counsel), for defendants third-party

plaintiffs-respondents.

Smith Mazure Director Wilkins Young & Yagerman, P.C.,

New York, N.Y. (Joel M. Simon of

counsel), for third-party defendant-

respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, and a third-party action, inter alia, for a judgment declaring that the third-party defendant Scottsdale Insurance Company is obligated to defend and indemnify the defendants third-party plaintiffs in the main action, the third-party defendant Scottsdale Insurance Company appeals, as limited by its notice of appeal and brief, from so much of an order of the Supreme Court, Kings County (Lewis, J.), dated June 23, 2011, as granted that branch of the motion of the defendants third-party plaintiffs which was for summary judgment declaring that it is obligated to defend and indemnify the defendants third-party plaintiffs in the main action, denied its cross motion, among other things, for summary judgment declaring that it is not obligated to defend and indemnify the defendants third-party plaintiffs in the main action, and denied its separate motion, among other things, for summary judgment declaring that it is not obligated to defend and indemnify the third-party defendant LM Interiors Contracting, LLC, for claims arising out of the main action.

ORDERED that the appeal from so much of the order as denied the separate motion of the third-party defendant Scottsdale Insurance Company, among other things, for summary judgment declaring that it is not obligated to defend and indemnify the third-party defendant LM Interiors Contracting, LLC, for claims arising out of the main action is dismissed as withdrawn pursuant to a letter dated May 10, 2012; and it is further,

ORDERED that the order is affirmed insofar as reviewed, and the matter is remitted to the Supreme Court, Kings County, for the entry of a judgment, inter alia, declaring that the third-party defendant Scottsdale Insurance Company is obligated to defend and indemnify the defendants third-party plaintiffs in the main action; and it is further, [*2]

ORDERED that one bill of costs is awarded to the defendants third-party plaintiffs.

The third-party defendant Scottsdale Insurance Company (hereinafter Scottsdale) issued a certificate of insurance to the defendants third-party plaintiffs, 4401 Sunset Park, LLC (hereinafter 4401), and Sierra Realty Company (hereinafter Sierra Realty), in accordance with a construction agreement in connection with a project in which several apartments in the subject building were to be renovated. On August 18, 2008, the plaintiff in the main action, Juan Sierra, allegedly was injured while working in the subject building.

On January 6, 2009, the primary insurer of 4401 and Sierra Realty, Greater New York Insurance Company (hereinafter GNY), wrote to Scottsdale, tendering a claim for the defense and indemnification of the underlying action on behalf of 4401 and Sierra Realty. On February 2, 2009, Scottsdale responded with a letter to GNY disclaiming coverage and rejecting the tender, on the grounds that the GNY letter constituted late notice of the accident and did not comply with terms of the Scottsdale policy. Scottsdale did not send this letter to 4401 or Sierra Realty. Sierra Realty and 4401 moved, inter alia, for summary judgment declaring that Scottsdale was obligated to defend and indemnify them in the main action. Scottsdale cross-moved, inter alia, for summary judgment declaring that it was not obligated to defend and indemnify 4401 and Sierra Realty in the main action.

Where a primary insurer, in this case GNY, tenders a claim for a defense and indemnification to an insurer, in this case Scottsdale, which issued a certificate of insurance to the parties, indicating that they are additional insureds, that insurer must comply with the disclaimer requirements of Insurance Law § 3420(d)(2) by providing written notice of disclaimer of coverage to the additional insureds. The fact that the tendering insurer provided untimely notice of the accident “”does not excuse the insurer’s unreasonable delay in disclaiming coverage”” (233 E. 17th St., LLC v L.G.B. Dev., Inc., 78 AD3d 930, 932; see Admiral Ins. Co. v State Farm Fire & Cas. Co., 86 AD3d 486, 488; J.T. Magen v Hartford Fire Ins. Co., 64 AD3d 266, 269; Bovis Lend Lease LMB, Inc. v Royal Surplus Lines Ins. Co., 27 AD3d 84, 87-88; AIU Ins. Co. v Investors Ins. Co., 17 AD3d 259, 260). The failure of Scottsdale to provide written notice of disclaimer to 4401 and Sierra Realty rendered the disclaimer of coverage ineffective against them (see Maughn v RLI Ins. Co., 68 AD3d 1067, 1068). Under the circumstances of this case, GNY was not the real party in interest, such that the notice of disclaimer to GNY would be rendered effective as against 4401 and Sierra Realty (cf. Cincinnati Ins. Cos. v Sirius Am. Ins. Co., 51 AD3d 1365; Excelsior Ins. Co. v Antretter Contr. Corp., 262 AD2d 124).

Scottsdale’s remaining contention has been rendered academic in light of our determination.

Since the third-party action is, in part, a declaratory judgment action, we remit the matter to the Supreme Court, Kings County, for the entry of a judgment, inter alia, declaring that Scottsdale is obligated to defend and indemnify 4401 and Sierra Realty in the main action (see Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901).

MASTRO, J.P., LOTT, ROMAN and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

“Smith v Bank of Am., N.A.”        2011-04463         2012 NY Slip Op 08718    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

REINALDO E. RIVERA, J.P.

ANITA R. FLORIO

CHERYL E. CHAMBERS

JEFFREY A. COHEN, JJ.

2011-04463

2011-07162

(Index No. 3420/10)

[*1]Teresa Smith, respondent,

v

Bank of America, N.A., appellant.

APPEAL by the defendant, in an action for a judgment declaring that a mortgage on certain real property is null and void, from (1) an order of the Supreme Court (Thomas P. Phelan, J.), dated March 31, 2011, and entered in Nassau County, which granted the plaintiff’s motion for summary judgment on the complaint declaring that the mortgage is null and void and denied its cross motion for summary judgment declaring that the mortgage is valid, and (2) a judgment of the same court entered May 27, 2011, which, upon the order, inter alia, declared that the mortgage is null and void.

Meyner and Landis LLP, Nyack, N.Y. (David B. Grantz of

counsel), for appellant.

Robert A. Brady, Port Washington, N.Y., for respondent.

OPINION & ORDER

CHAMBERS, J.We are asked on this appeal to determine whether a mortgage given by one joint tenant to a third party without the knowledge of the other joint tenant acts to sever the joint tenancy. We answer this question in the negative.

In February 1999, the plaintiff, the sole owner of real property located in Port Washington (hereinafter the subject property), conveyed, by quitclaim deed, her entire ownership interest in the subject property in equal shares to herself and her boyfriend, David Hassid, as joint tenants with the right of survivorship. Shortly thereafter, the quitclaim deed was recorded in the office of the Nassau County Clerk.

In July 2006, unbeknownst to the plaintiff, the defendant, Bank of America, N.A., made a $300,000 loan to Hassid, secured by a mortgage on the subject property. The mortgage was recorded in the office of the Nassau County Clerk in November 2006.

In January 2009, after Hassid died, the defendant declared the loan to be in default. The plaintiff thereafter commenced this action for a judgment declaring that the mortgage on the subject property is null and void on the theory that, upon Hassid’s death, by operation of law, the mortgage had been extinguished and she succeeded to his one-half interest in the subject property free and clear of the mortgage. On this basis, the plaintiff moved for summary judgment on her complaint.

The defendant countered, both in its opposition to the plaintiff’s motion, and in its cross motion for summary judgment declaring that the mortgage is valid, that Hassid’s unilateral act [*2]of giving a mortgage destroyed the unity of interest, one of the four unities that are essential at common law for the maintenance of a joint tenancy, and thereby severed the joint tenancy. Indeed, the defendant argued that Hassid’s delivery of the mortgage evinced his intent to sever the joint tenancy in accordance with Real Property Law § 240-c(1), which provides that a joint tenant may unilaterally sever a joint tenancy by “”execution of a written instrument that evidences the intent to sever the joint tenancy.”” Once the joint tenancy was severed, the plaintiff and Hassid became tenants-in-common. Thus, according to the defendant, upon Hassid’s death, his one-half interest in the subject property passed to his estate and not to the plaintiff and, consequently, the mortgage was valid.

The Supreme Court granted the plaintiff’s motion and denied the defendant’s cross motion. Relying on persuasive out-of-state authority, the Supreme Court reasoned that, since, in New York, a mortgage is considered only a lien, and, therefore, not a transfer of title, Hassid’s giving of a mortgage to the defendant did not act to sever the joint tenancy. The court determined that, upon Hassid’s death, his interest in the subject property passed to the plaintiff free and clear of the mortgage. Thus, judgment was entered, inter alia, declaring that the mortgage is null and void. The Nassau County Clerk was directed to vacate and cancel the mortgage.

The defendant now appeals from the order and the judgment.

We begin our analysis with the observation that, by the 13th century, the English common law embraced joint tenancy as a form of concurrent ownership (see 7-51 Powell on Real Property § 51.01). Further, with its common-law roots, New York defines “” [a] joint tenancy [as] an estate held by two or more persons jointly, with equal rights to share in its enjoyment during their lives, and creating in each joint tenant a right of survivorship'”” (Goetz v Slobey, 76 AD3d 954, 956, quoting 24 NY Jur 2d, Cotenancy and Partition § 16, at 332-333). Foremost, in a joint tenancy, the joint tenants take and hold property as though they together constitute one person (see Moore Lbr. Co., Inc. v Behrman, 144 Misc 291, 292). In order to create and maintain a joint tenancy, the four unities—of time, title, interest, and possession—must exist (see Goetz v Slobey, 76 AD3d at 956). Under the common law, as Sir William Blackstone explained, joint tenants have one and the same interest, accruing by one and the same conveyance, commencing at one and the same time, and held by one and the same undivided possession (see 2 William Blackstone, Commentaries on the Law of England at 180). Thus, the concept of unity of interest, which is pivotal to our inquiry, refers to the requirement that all joint tenants’ interests must be identical in nature, extent, and duration (see Black’s Law Dictionary [9th ed. 2009]; 2 Tiffany Real Prop. § 418).

The issue of whether a mortgage given by one joint tenant without the knowledge of the other acts to destroy the unity of interest and, thus, to sever the joint tenancy, is one of first impression for this Court. That we have never addressed this issue is not surprising. It is, as one leading commentator stated, “”like a comet in our law,”” for “”[i]t is a rare (or negligent) commercial lender who would accept a mortgage from a joint tenant without first seeing that the joint tenancy was severed or that all the joint tenants had signed”” (4-31 Thompson on Real Property, Thomas Editions § 31.08[b]). Nevertheless, other jurisdictions have considered this issue.[FN1]

For example, in People v Nogarr (164 Cal App 2d 591, 330 P2d 858), a husband and wife acquired property as joint tenants. After they separated, the husband borrowed $6,440 from his parents, which was secured by a mortgage held by the parents on the marital home, all without the knowledge of the wife. Less than one year later, the husband died. The State of California attempted to condemn the property, alleging that the wife was the owner of the marital property, subject to a mortgage interest in the marital property held by the late husband’s parents. The wife asserted that she had the sole interest in the property. After trial, the husband’s parents were awarded the outstanding balance on the loan, to be satisfied from the husband’s 50% interest in the property. On appeal to the California Court of Appeal, the judgment was reversed. The Court noted that a mortgage was only a charge or a lien on the marital home and, as such, “”it did not destroy any of the unities”” (164 Cal App 2d at 594 [emphasis added]). Thus, the joint tenancy was not severed by the husband’s giving of a mortgage to his parents. Once the husband died, his interest in the marital [*3]home ceased to exist, as did the mortgage.

In Harms v Sprague (105 Ill 2d 215, 473 NE2d 930), two brothers, William Harms and John Harms, owned real property as joint tenants (hereinafter the joint tenancy property). A friend who wanted to purchase a nearby property asked John Harms to co-sign a $7,000 promissory note, which was secured by a mortgage on the interest that John Harms had in the joint tenancy property. William Harms was unaware that his brother executed the mortgage. After John Harms died, his brother sought to quiet title to the joint tenancy property. The trial court held that the mortgage given by John Harms severed the joint tenancy. On appeal, the Supreme Court of Illinois disagreed, explaining that Illinois adhered to the theory that a mortgage was merely a lien on the property, and that the recognition of a lien could not effectuate a severance of the joint tenancy. Although, in rendering its decision, the Court focused on the concept of unity of title, it cited Van Antwerp v Horan (390 Ill 449, 61 NE2d 358). In that case, the pertinent question was whether the levy, pursuant to a judgment lien, upon a joint tenant’s interest in real property acted to sever the joint tenancy. In concluding that it did not, the Court explained that, at the time of the levy, there had “”not been . . . the destruction of identity of interest or of any other unity”” (390 Ill at 455) (emphasis added). Again, the levy did not interfere or diminish “”the interest of the one joint tenant as to enable [the Court] to say that there ha[d] been a destruction of the identity of interest”” (id.).

A somewhat similar question was considered by the Oklahoma Court of Appeals in American Natl. Bank & Trust Co. of Shawnee v McGinnis (1977 Okla. 47, 571 P2d 1198). In that case, a mortgage loan obtained by one joint tenant did not sever the joint tenancy. The Court reasoned that, “”[s]ince a mortgage is a mere lien or charge upon mortgagor’s interest which does not transfer any legal title to mortgagees or entitle mortgagees to possession, it does not destroy any unity and, therefore, estate in joint tenancy is not severed and converted to tenancy in common”” (571 P2d at 1200).

Other cases and authorities are likewise in accord (see Texas Am. Bank/Levelland v Morgan, 105 NM 416, 417, 733 P2d 864 [holding that because, in New Mexico, a mortgage is considered merely a lien, and title to the mortgaged property does not pass upon the giving of a mortgage, title and joint tenancy unities are unaffected by the execution of a mortgage]; Home Trust Mercantile Bank v Staggs, 714 SW2d 792, 794 [in which a Missouri appeals court explained that the “”[i]mposition of a lien is not inconsistent with the continuation of any of the four unities; and therefore, a mortgage or pledge of one joint tenant’s interest does not work a severance of the joint tenancy””]; D.A.D., Inc. v Moring, 218 So 2d 451, 452 [holding that because, in Florida, a mortgage is recognized as only a lien on real property and not as conveyance or a transfer of the right of possession, the execution of a mortgage by one joint tenant without the knowledge of the other joint tenant did not destroy any of the four unities]; 4-31 Thompson on Real Property, Thomas Editions § 31.08[b] [stating that, in jurisdictions where a mortgage is considered a lien, it is “”easy to see why a mortgage by one joint tenant is held not to sever the joint tenancy: no more than any other unforeclosed lien does it destroy any of the constitutive unities””]).

The defendant urges us to follow contrary authority found in Matter of Hoffman (175 Misc 607) and General Credit Co. v Cleck (415 Pa Super 338, 609 A2d 553). We do not, however, find these cases persuasive. In Hoffman, the Surrogate’s Court addressed the issue of severance of joint personal property, not real property. In General Credit Co., the Pennsylvania Superior Court concluded, based on an 1806 Pennsylvania Supreme Court case, Simpson v Ammons (1 Binn [Pa] 175 [Sup Ct]), that, despite the fact that Pennsylvania is a lien-theory state, a mortgage executed by one joint tenant acts to sever a joint tenancy. In neither case did the courts support their conclusion with any analysis.

New York is a lien-theory state, that is, a mortgage is considered a lien secured by real property (see Johnson v Augsbury Org., 167 AD2d 783, 784; Witschger v Marvin & Co., Inc., 255 App Div 70, 73; Matter of City of New York, 251 App Div 669, 672, affd 278 NY 163). Thus, we emphasize that a mortgage does not act to transfer legal title in the underlying property to the lender, as in states that follow the title theory (see 9-95 Warren’s Weed, New York Real Property § 95.01). Hence, since a mortgage is only a lien, Hassid’s act of giving a mortgage on the subject property did not act to sever the joint tenancy relationship between him and the plaintiff. We note that, after the mortgage was executed, Hassid and the plaintiff still held equal shares in the subject property, and the defendant acquired no legal or equitable interest in the subject property as a consequence of the mortgage (see 7-51 Powell on Real Property § 51.03; James v ReconTrust Co., 845 F Supp 2d 1145, 2012 US Dist LEXIS 26072, *16). [*4]

Pursuant to Real Property Law § 240-c(1), a joint tenancy with right of survivorship may be severed by destroying one of the four unities. Additionally, a joint tenant may unilaterally sever a joint tenancy in real property without the consent of any nonsevering joint tenant or tenants by, among other things, the execution of a written instrument evincing the intent to sever the joint tenancy (see Real Property Law § 240-c[1]). Here, the mortgage instrument contains no language evincing Hassid’s intent to sever the joint tenancy. In the absence of any such language or some other writing, we cannot conclude that the mere act of delivering a mortgage to the defendant evinced Hassid’s intent to sever the joint tenancy.

Since the mortgage was merely a lien against the subject property and did not act to sever the joint tenancy, upon Hassid’s death, the mortgage ceased to exist, and his interest in the subject property passed to the plaintiff free and clear of the mortgage (see Harms v Sprague, 105 Ill 2d at 224; People v Nogarr, 330 P2d 2d at 861). Based on the foregoing, the Supreme Court properly declared that the mortgage is null and void.

The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).

Accordingly, the appeal from the order is dismissed and the judgment is affirmed.

RIVERA, J.P., FLORIO and COHEN, JJ., concur.

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the judgment is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

ENTER:

Aprilanne Agostino

Clerk of the Court

Footnotes

Footnote 1:. The defendant maintains that these other jurisdictions did not consider whether the unilateral act of a joint tenant in giving a mortgage to a third party destroyed the unity of interest. Instead, the defendant argues, they considered only whether the unity of title was destroyed. A careful reading of these determinations, however, shows that this is not the case.”

Tegay v Rocky Point Sch. Dist.     2012-01907         2012 NY Slip Op 08719    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

DANIEL D. ANGIOLILLO, J.P.

RUTH C. BALKIN

LEONARD B. AUSTIN

ROBERT J. MILLER, JJ.

2012-01907

(Index No. 25564/11)

[*1]Melodie Tegay, appellant,

v

Rocky Point School District, et al., respondents, et al., defendant.

David Gordon, Highmount, N.Y., for appellant.

Ahmuty, Demers & McManus, Albertson, N.Y. (Nicholas M.

Cardascia and Glenn A. Kaminska of

counsel), for respondents.

DECISION & ORDER

In an action to recover damages for defamation, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Baisley, Jr., J.), dated November 16, 2011, which denied her motion pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim.

ORDERED that the order is affirmed, with costs.

In determining whether to permit service of a late notice of claim, the court must consider all relevant circumstances, including whether the public corporation acquired actual knowledge of the facts constituting the claim within 90 days after the claim arose or within a reasonable time thereafter, whether the claimant demonstrated a reasonable excuse for the delay in serving a timely notice of claim, and whether the delay would substantially prejudice the public corporation in defending on the merits (see Education Law § 3813[2-a]; General Municipal Law § 50-e[5]; Matter of Ambrico v Lynbrook Union Free School Dist., 71 AD3d 762, 763; Matter of Acosta v City of New York, 39 AD3d 629, 630; Matter of Andrew T.B. v Brewster Cent. School Dist., 18 AD3d 745, 746).

Here, the plaintiff did not proffer any excuse for her lengthy delay in seeking leave to serve a late notice of claim (see Matter of Jackson v Newburgh Enlarged City School Dist., 85 AD3d 1031, 1032; Matter of Castro v Clarkstown Cent. School Dist., 65 AD3d 1141, 1142; Troy v Town of Hyde Park, 63 AD3d 913, 914). Furthermore, the plaintiff failed to demonstrate that the respondents had timely, actual knowledge of the essential facts constituting her claim that the respondents made defamatory statements regarding her conduct as an employee, and that these statements were made with malice (see Bayer v City of New York, 60 AD3d 713, 714; Forrest v Berlin Cent. School Dist., 29 AD3d 1230, 1231). Moreover, the plaintiff did not establish that the delay did not substantially prejudice the respondents’ ability to investigate and defend against the claim (see Matter of Devivo v Town of Carmel, 68 AD3d 991; Matter of Avalos v City of N.Y. Bd. of Educ., 67 AD3d 675; Matter of Formisano v Eastchester Union Free School Dist., 59 AD3d 543, 545). Accordingly, the plaintiff’s motion for leave to serve a late notice of claim was properly denied.

ANGIOLILLO, J.P., BALKIN, AUSTIN and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Washington-Herrera v Town of Greenburgh       2011-10202         2012 NY Slip Op 08720    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

ANITA R. FLORIO, J.P.

JOHN M. LEVENTHAL

LEONARD B. AUSTIN

JEFFREY A. COHEN, JJ.

2011-10202

(Index No. 20603/09)

[*1]Alexander Washington-Herrera, respondent,

v

Town of Greenburgh, et al., defendants, Town of Greenburgh Sgt. Edward Olson, etc., appellant.

Thomas J. Troetti, White Plains, N.Y., for appellant.

Young & Bartlett, LLP, White Plains, N.Y. (Francis X. Young

and Nicole McErlean of counsel), for

respondent.

DECISION & ORDER

In an action, inter alia, to recover damages for violation of civil and constitutional rights pursuant to 42 USC § 1983, the defendant Town of Greenburgh Sgt. Edward Olson appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Giacomo, J.), entered September 30, 2011, as denied his motion for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the defendant Town of Greenburgh Sgt. Edward Olson for summary judgment dismissing the complaint insofar as asserted against him is granted.

On September 13, 2008, the plaintiff was arrested in his home pursuant to an arrest warrant on charges that he committed criminal mischief in the second degree, a class D felony (see Penal Law § 145.10). The accusatory instrument that resulted in the issuance of the arrest warrant was based on signed statements from the plaintiff’s girlfriend and the father of the plaintiff’s girlfriend. Town of Greenburgh Sgt. Edward Olson (hereinafter Olson) was a member of the tactical team that, on orders of the chief of the Town of Greenburgh Police Department (hereinafter the police department), forcibly entered the plaintiff’s home and effectuated the arrest. At the time of the plaintiff’s arrest, the police department had received information that, inter alia, the plaintiff had been seen with a gun two days earlier, had threatened to shoot his girlfriend, was possibly holding his girlfriend hostage in his home, and kept three pit bulls in his home.

Following his arrest, the plaintiff was indicted on numerous charges, but was later acquitted on all counts. Thereafter, the plaintiff commenced this action against Olson, among others, asserting a cause of action pursuant to 42 USC § 1983 that alleged use of excessive force in violation of his rights under the Fourth Amendment to the United States Constitution, as well as state common-law causes of action sounding in assault and battery, false arrest, and false imprisonment, [*2]and causes of action sounding in malicious prosecution under both state law and pursuant to 42 USC § 1983. In an order entered September 30, 2011, the Supreme Court, inter alia, denied Olson’s motion for summary judgment dismissing the complaint insofar as asserted against him. Olson appeals.

“”In order to prevail on a cause of action seeking to recover damages for false arrest or imprisonment, a plaintiff must prove that: (1) the defendant intended to confine the plaintiff; (2) the plaintiff was aware of the resulting confinement; (3) the plaintiff did not consent to the confinement; and (4) the confinement was not otherwise privileged”” (Rivera v County of Nassau, 83 AD3d 1032, 1033; see Broughton v State of New York, 37 NY2d 451, 456, cert denied sub nom. Schanbarger v Kellogg, 423 US 929). “”A [42 USC] § 1983 claim for false arrest, resting on the Fourth Amendment right of an individual to be free from unreasonable seizures, including arrest without probable cause, is substantially the same as a claim for false arrest under New York law”” (Weyant v Okst, 101 F3d 845, 852 [citation omitted]).

Olson submitted evidence that “”the plaintiff was arrested pursuant to a facially valid arrest warrant issued by a court having jurisdiction”” (Campbell v County of Westchester, 80 AD3d 641, 641-642). Accordingly, he established, prima facie, his entitlement to judgment as a matter of law dismissing the false arrest and false imprisonment causes of action by showing that the plaintiff’s confinement was privileged (id.; see Lyman v Town of Amherst, 74 AD3d 1842).

The plaintiff failed to raise a triable issue of fact in opposition. Contrary to the plaintiff’s contention, the defendant was entitled to enter his home forcibly for the purpose of executing a felony arrest warrant founded on probable cause (see Payton v New York, 445 US 573, 602-603; People v Gerecke, 34 AD3d 1260, 1261; People v Murray, 267 AD2d 492, 494). “”Where a warrant of arrest is issued by a court of competent jurisdiction, there is a presumption that the arrest was issued on probable cause”” (Lyman v Town of Amherst, 74 AD3d at 1842 [internal quotation marks omitted]; see Gisondi v Town of Harrison, 72 NY2d 280, 283-284; Broughton v State of New York, 37 NY2d at 458), and the plaintiff did not rebut this presumption. Accordingly, Olson was entitled to summary judgment dismissing the false arrest and false imprisonment causes of action insofar as asserted against him.

“”Generally, when there is an alleged unlawful arrest made pursuant to a valid warrant, the appropriate form of action is malicious prosecution, not false imprisonment”” (Williams v City of Buffalo, 72 AD2d 952, 953). “”In order to prevail on a [42 USC] § 1983 claim against a state actor for malicious prosecution, a plaintiff must show a violation of his rights under the Fourth Amendment, and must establish the elements of a malicious prosecution claim under state law”” (Manganiello v City of New York, 612 F3d 149, 160-161 [citations omitted]). “”The elements of the tort of malicious prosecution are: (1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual malice”” (Broughton v State of New York, 37 NY2d at 457).

“”Once a suspect has been indicted . . . the indictment creates a presumption of probable cause to believe that the suspect committed the crime. This presumption may be overcome only by evidence establishing that the police witnesses have not made a complete and full statement of facts either to the Grand Jury or to the District Attorney, that they have misrepresented or falsified evidence, [or] that they have withheld evidence or otherwise acted in bad faith”” (Chetrick v Cohen, 52 AD3d 449, 450 [citations and internal quotation marks omitted]). Here, Olson demonstrated his prima facie entitlement to judgment as a matter of law by showing that the plaintiff was indicted by a grand jury for the subject incident, thus creating a presumption of probable cause (id.; see Strange v County of Westchester, 29 AD3d 676, 676-677). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted that branch of Olson’s motion which was for summary judgment dismissing both of the causes of action alleging malicious prosecution insofar as asserted against him. [*3]

“”A claim that a law enforcement official used excessive force during the course of an arrest, investigatory stop, or other seizure of the person is to be analyzed under the objective reasonableness standard of the Fourth Amendment. The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight”” (Campagna v Arleo, 25 AD3d 528, 529 [citations and internal quotation marks omitted]).

Olson established that a different police officer engaged in certain of the acts complained of by the plaintiff, that the plaintiff could not identify which officer allegedly slammed him against a mirror and against a wall, that the plaintiff, in any event, sustained no injuries as a result of being slammed against a mirror, and that the sole use of force that can properly be attributed to Olson was reasonable and did not result in any injury to the plaintiff. Accordingly, Olson established his prima facie entitlement to judgment as a matter of law dismissing the cause of action predicated on an alleged use of excessive force insofar as asserted against him (see Diederich v Nyack Hosp., 49 AD3d 491, 494; Gagliano v County of Nassau, 31 AD3d 375, 376; Higgins v City of Oneonta, 208 AD2d 1067, 1070-1071; cf. Matter of Scully v Safir, 282 AD2d 305, 305-306). The plaintiff failed to raise a triable issue of fact in opposition.

The branches of Olson’s motion which were for summary judgment dismissing the causes of action alleging common-law assault and battery should similarly have been granted under the circumstances of this case (see Wyllie v District Attorney of County of Kings, 2 AD3d 714, 718-719).

In light of our determination, we need not reach the parties’ contentions regarding Olson’s claim of entitlement to qualified immunity (see Foley v County of Suffolk, 80 AD3d 658, 660).

The plaintiff’s remaining contentions are without merit.

FLORIO, J.P., LEVENTHAL, AUSTIN and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Williams v Town of Greenburgh                2012-01136         2012 NY Slip Op 08721    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

PETER B. SKELOS, J.P.

RUTH C. BALKIN

CHERYL E. CHAMBERS

ROBERT J. MILLER, JJ.

2012-01136

(Index No. 26566/08)

[*1]Ernest Williams, respondent,

v

Town of Greenburgh, et al., appellants.

Timothy W. Lewis, Town Attorney, Greenburgh, N.Y. (Richard L.

Marasse of counsel), for appellants.

Owen & Eddy, White Plains, N.Y. (W. David Eddy, Jr., of

counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered December 14, 2011, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.

ORDERED that the order is reversed, on the law, with costs, and the defendants’ motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) is granted.

The defendants demonstrated their prima facie entitlement to judgment as a matter of law by establishing, through competent medical evidence, that the plaintiff’s condition did not result from the subject accident (see Scott v Martinez, 99 AD3d 984; Enyah v Sherpa, 98 AD3d 993). In opposition, the plaintiff failed to raise a triable issue of fact. The affidavit of the plaintiff’s expert was conclusory on the issue of whether the plaintiff’s condition was the result of the subject accident (see Barry v Future Cab Corp., 71 AD3d 710; Piperis v Wan, 49 AD3d 840). Accordingly, the defendants’ motion should have been granted.

SKELOS, J.P., BALKIN, CHAMBERS and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Allen v DiFiore              2012-05468         2012 NY Slip Op 08722    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

ANITA R. FLORIO, J.P.

L. PRISCILLA HALL

LEONARD B. AUSTIN

ROBERT J. MILLER, JJ.

2012-05468

[*1]In the Matter of Douglas Allen, petitioner,

v

Janet DiFiore, etc., et al., respondents. John F. Ryan, White Plains, N.Y. (Arlene R. Popkin of counsel), for petitioner.

Janet DiFiore, District Attorney, White Plains, N.Y. (William C.

Milaccio of counsel), respondent pro se.

DECISION & JUDGMENT

Proceeding pursuant to CPLR article 78 in the nature of prohibition to bar the respondents from proceeding further in the criminal action entitled People v Allen, pending in the County Court, Westchester County, under Indictment No. 12-00228, on the ground, inter alia, that the prosecution would violate the prohibition against double jeopardy.

ADJUDGED that the petition is denied and the proceeding is dismissed, without costs or disbursements.

“”Because of its extraordinary nature, prohibition is available only where there is a clear legal right, and then only when a court—in cases where judicial authority is challenged—acts or threatens to act either without jurisdiction or in excess of its authorized powers”” (Matter of Holtzman v Goldman, 71 NY2d 564, 569).

The petitioner failed to demonstrate a clear legal right to the extraordinary remedy of prohibition (see id.). The petitioner contends that the People are barred from proceeding with the subject prosecution against him on the grounds, inter alia, of double jeopardy and collateral estoppel. However, the petitioner’s claims are based upon a prosecution and acquittal in a criminal action litigated in the County Court, Dutchess County, which related to a transaction between the petitioner and a Dutchess County investigator during 2003 and 2004. In Westchester County, the petitioner has been indicted for promoting prostitution in the third degree, in connection with a separate transaction between the petitioner and a Westchester County investigator in 2010 (see Penal Law § 230.25[1]). Under these circumstances, it cannot be said that Westchester County District Attorney is prosecuting the petitioner for the same offense for which he was acquitted in Dutchess County. Accordingly, in connection with this petition, the petitioner has not demonstrated that the instant prosecution in Westchester County deprives him of his protections against double jeopardy (see Benton v Maryland, 395 US 784, 794; People v Vasquez, 89 NY2d 521, 527, cert denied sub nom. Cordero v Lalor, 522 US 846), or implicates the doctrine of collateral estoppel (see People v Aguilera, 82 NY2d 23, 29-30).

FLORIO, J.P., HALL, AUSTIN and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Kendall B.       2012-06569         2012 NY Slip Op 08723    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

REINALDO E. RIVERA, J.P.

MARK C. DILLON

SHERI S. ROMAN

JEFFREY A. COHEN, JJ.

2012-06569

(Index No. 2137/12)

[*1]In the Matter of Kendall B. (Anonymous), appellant. Kenneth M. Glatt, etc., petitioner-respondent.

Mental Hygiene Legal Service, Mineola, N.Y. (Lesley M. DeLia,

Christopher Liberati-Conant, and Dennis B. Feld of counsel), for

appellant.

James M. Fedorchak, County Attorney, Poughkeepsie, N.Y.

(Keith P. Byron of counsel), for

petitioner-respondent.

DECISION & ORDER

In a proceeding pursuant to Mental Hygiene Law § 9.60 to authorize assisted outpatient treatment, Kendall B. appeals from a judgment of the Supreme Court, Dutchess County (DiBella, J.), dated July 6, 2012, which, after a hearing, granted the petition.

ORDERED that the judgment is affirmed, without costs or disbursements.

The petitioner, Kenneth M. Glatt, the Director of Community Services for Dutchess County, filed a petition seeking to direct Kendall B. to participate in assisted outpatient treatment (hereinafter AOT). The petition, which was filed on April 18, 2012, alleged that Kendall B. suffers from schizophrenia, had a history of noncompliance with treatment, refused to take medication, could not survive in the community without supervision, and needed medication to prevent further deterioration.

Mental Hygiene Law § 9.60 was enacted to provide “”a system of [AOT] pursuant to which psychiatric patients unlikely to survive safely in the community without supervision may avoid hospitalization by complying with court-ordered mental health treatment”” (Matter of K.L., 1 NY3d 362, 366). Before a court may issue an order for AOT, the statute requires that a hearing be held to establish certain criteria by clear and convincing evidence (see Mental Hygiene Law § 9.60[c]; Matter of K.L., 1 NY3d at 367-368).

The Supreme Court’s determination, made after a hearing, at which a psychiatrist and a clinical psychologist gave conflicting opinions, is entitled to deference since the Supreme Court, as the trier of fact, was “”in the best position to observe [the patient’s] behavior as well as evaluate the weight and credibility of the . . . conflicting testimony of the . . . experts”” (Matter of George L., 85 NY2d 295, 305; see Matter of Timothy M., 307 AD2d 295). Here, the Supreme Court’s determination that AOT was necessary was supported by clear and convincing evidence.

At the hearing, Dr. Snehal Sheth of St. Francis Hospital testified on behalf of the [*2]petitioner. Dr. Sheth, who treated Kendall B. from March through April 2012, conducted evaluations of the patient on March 27, 2012, and April 13, 2012. Based upon his personal knowledge and certain professionally reliable out-of-court material, Dr. Sheth’s opinion provided the clear and convincing evidence necessary to warrant the administration of AOT. Indeed, the petitioner demonstrated, inter alia, Kendall B.’s history of noncompliance with treatment, and that such noncompliance was a substantial factor in at least two hospitalizations. The petitioner further demonstrated that Kendall B. refused to take the recommended medication, that he posed a substantial threat of physical harm to himself and others, that AOT was necessary to prevent a relapse or deterioration in his condition which would be likely to result in serious harm to himself or others, and that he was unable to survive in the community without supervision (see Mental Hygiene Law § 9.60; Matter of Thomas G., 50 AD3d 1139; Matter of Anthony F., 306 AD2d 345; Wagman v Bradshaw, 292 AD2d 84, 85).

RIVERA, J.P., DILLON, ROMAN and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Bacchi v Clancy             2011-09818         2012 NY Slip Op 08724    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

PETER B. SKELOS, J.P.

RUTH C. BALKIN

CHERYL E. CHAMBERS

ROBERT J. MILLER, JJ.

2011-09818

(Docket No. V-04345-01)

[*1]In the Matter of Carolyn Bacchi, respondent,

v

Dennis Clancy, appellant.

Susan A. DeNatale, Mastic, N.Y., for appellant.

Thomas W. McNally, Central Islip, N.Y., attorney for the child.

DECISION & ORDER

In a child custody proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Suffolk County (Orlando, Ct. Atty. Ref.), dated September 28, 2011, which, after a hearing, granted the mother’s petition to modify the custody provisions set forth in a so-ordered stipulation of settlement dated August 5, 2005, so as to, inter alia, award her sole custody of the subject child.

ORDERED that the order is affirmed, without costs or disbursements.

“” A modification of an existing custody arrangement should be allowed only upon a showing of a sufficient change in circumstances demonstrating a real need for a change of custody in order to insure the child’s best interests'”” (Sano v Sano, 98 AD3d 659, 659, quoting Matter of Nava v Kinsler, 85 AD3d 1186, 1186; see Matter of Kimberly A.H. v Perez, 99 AD3d 903). The determination of a child’s best interests requires a review of the totality of the circumstances (see Eschbach v Eschbach, 56 NY2d 167, 171). In addition, inasmuch as custody determinations turn in large part on assessments of the credibility, character, temperament, and sincerity of the parties, the Family Court’s determination should be disturbed only if it lacks a sound and substantial basis in the record (see Eschbach v Eschbach, 56 NY2d at 173-174; Matter of Doroski v Ashton, 99 AD3d 902). Here, the Family Court’s determination that there had been a sufficient change in circumstances requiring a change in custody has a sound and substantial basis in the record and, thus, should not be disturbed (see Matter of Diaz v Diaz, 97 AD3d 747, 747).

The father’s remaining contention is without merit.

SKELOS, J.P., BALKIN, CHAMBERS and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Brown v Blumenfeld  2012-03981         2012 NY Slip Op 08725    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

WILLIAM F. MASTRO, J.P.

PETER B. SKELOS

ANITA R. FLORIO

L. PRISCILLA HALL, JJ.

2012-03981 OPINION & JUDGMENT

[*1]In the Matter of Richard A. Brown, etc., petitioner,

v

Joel L. Blumenfeld, etc., et al., respondents.

PROCEEDING pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit the respondent Joel L. Blumenfeld, an Acting Justice of the Supreme Court, Queens County, from enforcing an order dated April 17, 2012, precluding a videotaped statement given by the respondent Elisaul Perez from being admitted into evidence at the trial in an action entitled People v Perez, pending in the Supreme Court, Queens County, under Indictment No. 1202/09.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John

M. Ryan, James C. Quinn, Robert J. Masters, and Donna Aldea

of counsel), petitioner pro se.

Paul, Weiss, Rifkind, Wharton & Garrison, LLP, New York,

N.Y. (Mark F. Pomerantz and Jane

B. O’Brien of counsel), for

respondent Joel L. Blumenfeld.

SKELOS, J.Elisaul Perez, a defendant in a criminal action being prosecuted by the petitioner, Richard A. Brown, the District Attorney of Queens County (hereinafter the District Attorney), was interviewed, prior to his arraignment, by an assistant district attorney (hereinafter ADA), and gave a videotaped statement. The interview was conducted pursuant to a program instituted by the District Attorney’s office, under which arrested individuals are brought before an ADA just before arraignment, read a series of statements followed by Miranda warnings (see Miranda v Arizona, 384 US 436), and questioned (hereinafter the Program). Perez moved to suppress his statement, and the respondent Joel L. Blumenfeld, an Acting Justice of the Supreme Court, Queens County, denied the motion, finding that he could not conclude that Perez’s statement was involuntary. Nonetheless, Justice Blumenfeld precluded the People from introducing Perez’s statement at trial on the ground that the District Attorney’s program violated attorney-ethics rules. In this proceeding pursuant to CPLR article 78 in the nature of prohibition, the District Attorney seeks to have this Court prohibit Justice Blumenfeld from enforcing that order. We hold that, under the circumstances of this case, Justice Blumenfeld exceeded his authorized powers in precluding the People from introducing Perez’s statement at trial, such that the remedy of prohibition lies to prevent him from enforcing the order, and that the exercise of this Court’s discretion to grant that remedy is warranted.

In 2007, the District Attorney instituted a program pursuant to which ADAs and detective investigators from the District Attorney’s office interview arrestees who are detained at the Queens County Central Booking facility, awaiting arraignment on felony charges (see Matter of Brown v Blumenfeld, 89 AD3d 94, 97). As formal criminal proceedings have not been commenced against these arrestees, who are not represented by counsel and have not requested the assistance of counsel, their indelible rights to counsel have not attached at the time of the interviews (see People v Grice, 100 NY2d 318, 320-321; People v Rivers, 56 NY2d 476, 479; People v Grimaldi, 52 NY2d 611, 616). [*2]

Under the Program, arrestees are brought to an interview room where an ADA reads, or permits a detective investigator to read, a preprinted “”Interview Form”” (hereinafter the Form) (see Matter of Brown v Blumenfeld, 89 AD3d at 97). The Form contains a series of statements that precede the reading of Miranda warnings. (The remarks preceding the Miranda warnings will be referred to herein, consistent with Justice Blumenfeld’s terminology, as “”the preamble.””) Once the Miranda warnings are read, the arrestees are asked whether they are willing to speak with the ADAs and detective investigators, who then proceed to question the individuals upon receiving affirmative responses.

On March 14, 2009, an interview pursuant to the Program was conducted with Elisaul Perez, who later became a defendant in a criminal proceeding entitled People v Perez. The proceeding stemmed from an incident, occurring on March 13, 2009, in which two men allegedly beat another man (hereinafter the complainant) on a street in Queens. Allegedly, the perpetrators also took the complainant’s iPod. Approximately 10 minutes later, at about 12:30 A.M., Perez, who allegedly matched the complainant’s description of one of the perpetrators, was stopped by police officers three or four blocks away from the scene of the incident. Perez allegedly had blood on his sneakers. The officers frisked Perez for weapons, and recovered two iPods, one of which had blood on it. When the complainant identified one of the iPods as his, Perez was arrested and later transported to the Queens Central Booking facility.

At 2:35 P.M., Perez was brought to an interview room, pursuant to the Program’s procedures. ADA Angela Garg, ADA Louisa DeRose, Detective Investigator Mary Picone, and a Spanish interpreter were present in the interview room. Pursuant to the Program’s protocols, Perez was advised of the charges that would be filed against him when he appeared in court that day, and the date, time, and place of the incident underlying the charges. The preamble was then read to Perez (in Spanish) as follows:

“”In a few moments I’m going to read you your rights. After that, you will be given an opportunity to explain what happened at that date, time and place.

“”If you have an alibi, give us as much information as you can, including the names of any people you were with.

“”If your version of the events of that day is different from what we have heard, this is your opportunity to tell us your story.

“”If there is something you would like us to investigate concerning this incident, you must tell us now so we can look into it.

“”Even if you have already spoken to someone else, you do not have to talk to me.

“”This will be the only opportunity you will have to talk to me prior to your arraignment on these charges.””

Perez was told that the entire interview was being recorded on video, was advised of his right to be arraigned without delay, and was read Miranda warnings. He indicated that he understood each warning, and then agreed to talk to the ADAs and the detective investigator. Perez was then questioned about the incident and gave statements concerning his version of the events.

According to Perez, he and the complainant had both attended Newtown High School, and had both been involved in a romantic relationship with the same female student. Perez maintained that on June 6, 2008, he and the complainant had a physical altercation over the female student, during which the complainant had beaten him so badly that he required treatment at Elmhurst Hospital.

On the day of the subject incident, Perez explained, he happened to see the complainant on the street and they got into an argument. Perez asserted that, during the argument, the complainant picked up, or attempted to pick up, a stone with which to hit Perez, and thus, Perez explained, he punched the complainant in the face two or three times, causing the complainant’s nose to bleed. Perez recalled that the complainant then ran away. According to Perez, he noticed that the [*3]complainant had dropped his iPod, and he picked it up.

Perez was subsequently charged in an indictment with, among other crimes, two counts of robbery in the second degree. Perez thereafter moved, inter alia, to suppress the videotaped statement he had given during the interview conducted pursuant to the Program. He argued that he had not properly been advised of his Miranda rights, that he did not knowingly and intelligently waive those rights, and that the statements were “”illegally obtained.””

Justice Blumenfeld held a hearing pursuant to People v Huntley (15 NY2d 72) with respect to Perez’s suppression motion. At the hearing, the DVD containing Perez’s recorded statement was admitted into evidence and played for Justice Blumenfeld. Justice Blumenfeld also heard testimony from, among others, ADA Garg. During that testimony, Justice Blumenfeld pointed out that, before Perez gave his version of the incident to the ADAs and detective investigators, he had essentially been told, “”if there’s anything that you want to tell us, you must tell us now and we’ll investigate it.”” Justice Blumenfeld then asked Garg whether there had been “”any attempt to verify”” Perez’s version of the incident. Garg replied that she did not know, as it would be up to the “”assigned [ADA]”” to do that investigation.

Following the hearing, Justice Blumenfeld informed the People and Perez’s counsel that he would be contacting a professor of legal ethics to explore the issue of the propriety of the Program, which Justice Blumenfeld noted had originally been raised by Judicial Hearing Officer Thomas A. Demakos in a different case. Justice Blumenfeld questioned whether any ethical rules were violated during the course of the interview conducted pursuant to the Program, particularly as to the reading of the preamble. Ultimately, Justice Blumenfeld received a report from Professor Ellen Yaroshefsky, in which she opined that “”the conduct in the interview”” violated certain of the Rules of Professional Conduct (see 22 NYCRR 1200.0).

After giving the parties an opportunity to respond to the report, Justice Blumenfeld rendered an oral decision, as well as a written “”interim”” order dated August 12, 2010. Justice Blumenfeld expressed concern about the ethical implications to the “”[District Attorney’s] office,”” of making a promise, during an interview pursuant to the Program, to investigate a defendant’s version of an incident, and then failing to do so. In this regard, Justice Blumenfeld indicated that such conduct might violate rule 8.4(c) of the Rules of Professional Conduct (22 NYCRR 1200.0), which prohibits a lawyer from “”engag[ing] in conduct involving dishonesty, fraud, deceit or misrepresentation”” (Rules of Professional Conduct [22 NYCRR 1200.0] rule 8.4[c]; see former Code of Professional Responsibility DR 1-102[a][4] [former 22 NYCRR 1200.3(a)(4)] [same]). Justice Blumenfeld further determined that, contrary to the People’s contention, it was appropriate to address ethical violations in the context of a motion to suppress a statement that was allegedly made involuntarily.

In support of this determination, Justice Blumenfeld cited CPL 60.45. That statute provides that a defendant’s statement is “”involuntarily made”” when that statement “”is obtained from”” the defendant:

“”[b]y any person by the use or threatened use of physical force upon the defendant or another person, or by means of any other improper conduct or undue pressure which impaired the defendant’s physical or mental condition to the extent of undermining his ability to make a choice whether or not to make a statement”” (CPL 60.45[2][a]).

Thus, Justice Blumenfeld concluded, a suppression court could consider any “”improper conduct,”” including violations of ethical rules, when determining, pursuant to CPL 60.45(2), whether a defendant’s statement was involuntarily made. Although Justice Blumenfeld decided certain branches of Perez’s omnibus motion which were to suppress certain evidence,[FN1] he concluded that further proceedings were necessary before he could decide that branch of the motion which was to suppress Perez’s videotaped statement.

On September 30, 2010, following the issuance of the interim order, the District [*4]Attorney commenced, in this Court, a proceeding pursuant to CPLR article 78 in the nature of prohibition against Justice Blumenfeld (hereinafter Brown I) (see CPLR 506[b][1]). The District Attorney sought to have Justice Blumenfeld prohibited from, among other things, ruling upon whether the ADAs who conducted Perez’s interview pursuant to the Program violated attorney-ethics rules (see Matter of Brown v Blumenfeld, 89 AD3d at 101).

This Court denied the petition and dismissed the proceeding in Brown I, reasoning, in pertinent part, as follows:

“”Although the Court of Appeals has declined to detail the several categories of excesses of jurisdiction and power arising in criminal actions that merit the abrupt intervention of prohibition, that Court has observed that those categories always invoke . . . unlawful use or abuse of the entire action or proceeding, and implicate the legality of the entire proceeding. This situation is to be distinguished from an unlawful procedure or error in the action or proceeding itself related to the proper purpose of the action or proceeding.

“”Furthermore, prohibition is never available merely to correct or prevent a mistake, error in procedure, or error in substantive law, even when such error may be grievous or egregious . . .

“”If Justice Blumenfeld considers and makes a finding with respect to whether the ADAs conducting the interview of Perez violated ethical rules, [Justice Blumenfeld] would be doing so in determining a motion he is authorized to entertain, namely, a motion to suppress a statement on the ground that it was involuntarily made. Under CPL 60.45, a statement is involuntarily made if, among other things, it is obtained [b]y any person . . . by means of . . . improper conduct . . . which impaired the defendant’s physical or mental condition to the extent of undermining his [or her] ability to make a choice whether or not to make a statement’ (CPL 60.45[2][a]). We construe the petition before us as a request that we prohibit Justice Blumenfeld from considering and making a finding as to part of the definition of involuntarily made.’ Thus, if the District Attorney is correct that the ADAs’ purported ethical violations have no bearing on whether their conduct was improper conduct’ within the meaning of CPL 60.45, then Justice Blumenfeld may be committing legal error. That legal error, however, would not be the kind of error that implicates an unlawful use or abuse of the entire action or proceeding as distinguished from an unlawful procedure or error in the action or proceeding itself related to the proper purpose of the action or proceeding.

“”Consequently, prohibition does not lie under these circumstances.”” (id. at 102-104 [certain internal quotation marks and citations omitted]).

Subsequent to this Court’s decision in Brown I, Justice Blumenfeld granted the People’s application to reopen the suppression hearing in People v Perez, in order to permit Paul Schraeter, an ADA who had been assigned to Perez’s case, to testify as to what investigation was made of Perez’s version of the incident, following the interview conducted pursuant to the Program. At the reopened hearing, Schraeter testified that he contacted the complainant a few days after Perez made his videotaped statement, and, contrary to Perez’s statement, the complainant had denied knowing Perez prior to the incident. In addition, according to Schraeter, although Perez maintained that the complainant had dropped his iPod during a physical altercation, the complainant insisted that Perez had forcibly taken the iPod. Schraeter never contacted Newtown High School to find out whether the complainant and Perez had both attended that school, as Perez claimed, and Schraeter could only say that he may have contacted Elmhurst Hospital to find out whether Perez had ever [*5]been treated there for injuries allegedly sustained after being beaten by the complainant on a prior occasion.

After the reopened hearing was concluded, Justice Blumenfeld issued an order dated April 17, 2012, addressing that branch of Perez’s omnibus motion which was to suppress his videotaped statement. Justice Blumenfeld observed that, before being read his Miranda warnings and giving his statement, Perez was told, pursuant to the preamble: “”If there is something you would like us to investigate concerning this incident, you must tell us now so that we can look into it.”” Justice Blumenfeld viewed that statement as a promise made to Perez that if he did not invoke his rights to remain silent and to counsel, and made a statement concerning the incident, the District Attorney’s office would investigate his version of the incident. Justice Blumenfeld found that the District Attorney’s office failed to fulfill that promise to investigate Perez’s statement.

Justice Blumenfeld then concluded that the preamble was “”misleading and deceptive [and thus] violative of Rule 8.4(c) [of the Rules of Professional Conduct].”” In that respect, Justice Blumenfeld reasoned that the preamble contained a false promise to investigate, which was designed to induce the defendant to speak to the ADAs, that it “”create[d] an impression”” that the interview “”exist[ed] to assist the defendant,”” that it failed to inform the defendant that he would have an opportunity to have his story investigated after the assignment of counsel, and that it created a “”false sense of urgency”” to immediately relate his version of events.

Nonetheless, Justice Blumenfeld reasoned, he could not conclude that the “”improper conduct”” — i.e., the promise to investigate and the failure to do so — “”impaired the defendant’s mental condition to the extent of undermining his ability to make a choice whether or not to make a statement,”” as is required for a finding of involuntariness under CPL 60.45(2)(a). Significantly, Justice Blumenfeld indicated, he could not determine that Perez “”made the statements . . . because he felt he must’ in order to give his side of the story or [that] he even understood anything in the preamble.”” For that reason, “”the motion to suppress pursuant to CPL 60.45 [was] denied.””

Justice Blumenfeld concluded, however, that since “”the failure to keep the promises made to this defendant in the preamble clearly violated Rule 8.4(c), [he] must fashion an appropriate sanction.”” Justice Blumenfeld rejected the proposed sanction of a dismissal in furtherance of justice pursuant to CPL 210.20, concluding that this remedy was “”draconian”” and unwarranted since Perez admitted to assaulting the complainant. Justice Blumenfeld also declined to make a report to the Grievance Committee, since it was unclear who would properly be subject to such discipline.

Justice Blumenfeld observed that, pursuant to Judiciary Law § 2-b(3), “”[a] court of record has power . . . to devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it.”” Reasoning that courts have an obligation to report attorneys who commit ethical breaches or to fashion alternative sanctions, and that judges can “”take appropriate steps to regulate the conduct of lawyers appearing before them, short of formal discipline,”” Justice Blumenfeld decided to invoke Judiciary Law § 2-b(3) to preclude the People from using Perez’s videotaped statement at trial. Justice Blumenfeld indicated that excluding the videotaped statement would assure that the People were “”not able to benefit from their improper conduct,”” as was “”the purpose of a judicial sanction.””

The District Attorney subsequently commenced the subject proceeding pursuant to CPLR article 78, in the nature of prohibition, inter alia, to prohibit Justice Blumenfeld from enforcing the preclusion order.

The writ of prohibition, originally a common-law remedy, is codified in CPLR article 78, which authorizes a proceeding to determine whether a court, among others, “”proceeded, is proceeding or is about to proceed without or in excess of jurisdiction”” (CPLR 7803[2]; see Matter of Rush v Mordue, 68 NY2d 348, 352). Due to its “”extraordinary”” nature, however, prohibition lies “”only where there is a clear legal right”” to such relief, and “”only when a court (if a court is involved) acts or threatens to act without jurisdiction in a matter . . . over which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding over which it has jurisdiction”” (Matter of State of New York v King, 36 NY2d 59, 62; see Matter of Garner v New York State Dept. of Correctional Servs., 10 NY3d 358; Matter of Town of Huntington v New York State Div. of Human Rights, 82 NY2d 783, 786; Matter of Rush v Mordue, 68 NY2d at 352; Matter of Dondi v Jones, 40 NY2d 8, 13). In essence, prohibition is available only in “”those rare circumstances where an arrogation of power would justify burdening the judicial process with collateral intervention and summary correction”” (Matter of Rush v Mordue, 68 NY2d at 354). Even [*6]in those “”rare circumstances,”” however, the writ “”does not issue as of right, but only in the sound discretion of the court”” (id. at 354; see Matter of Town of Huntington v New York State Div. of Human Rights, 82 NY2d at 786; Matter of Dondi v Jones, 40 NY2d at 13).

Thus, in adjudicating a petition seeking a writ of prohibition, this Court must engage in a two-tiered analysis (see Matter of Holtzman v Goldman, 71 NY2d 564, 568). The first question is whether the issue presented is the type for which the remedy of prohibition lies (see id.; Matter of Brown v Blumenfeld, 89 AD3d at 102; Matter of Vinluan v Doyle, 60 AD3d 237, 243). If prohibition lies, then this Court must consider whether to exercise its discretion to grant that remedy (see Matter of Pirro v Angiolillo, 89 NY2d 351, 359; Matter of Town of Huntington v New York State Div. of Human Rights, 82 NY2d at 786; Matter of Morgenthau v Erlbaum, 59 NY2d 143, 147, cert denied 464 US 993).

Turning to the question of whether prohibition lies, while one of the functions of a writ of prohibition is to prohibit a lower court from making an unwarranted assumption of subject matter jurisdiction (see Matter of Pirro v Angiolillo, 89 NY2d at 355; Matter of Proskin v County Ct. of Albany County, 30 NY2d 15, 18), there is no question here that Justice Blumenfeld, as a Supreme Court justice, had subject matter jurisdiction to entertain the subject criminal proceeding (see Matter of Jacobs v Altman, 69 NY2d 733, 735; see also NY Const, art. VI, § 7; Judiciary Law § 140-b).

The other function of a writ of prohibition is to restrain a lower court from exceeding its authorized powers in a proceeding over which it has subject matter jurisdiction (see Matter of Pirro v Angiolillo, 89 NY2d at 355; Matter of Proskin v County Ct. of Albany County, 30 NY2d at 18). In determining whether a writ should issue for this purpose, “”it is crucial to distinguish between an error in procedure or substantive law during a litigation and the arrogation of power which is subject to correction by prohibition”” (La Rocca v Lane, 37 NY2d 575, 580, cert denied 424 US 968). “”The writ does not lie as a means of seeking a collateral review of an error of law, no matter how egregious that error might be . . . but only where the very jurisdiction and power of the court are in issue”” (Matter of Steingut v Gold, 42 NY2d 311, 315; see Matter of Rush v Mordue, 68 NY2d at 353; Matter of Brown v Blumenfeld, 89 AD3d at 103). As the Court of Appeals has recognized, “”there is no sharp line between a court acting in error under substantive or procedural law and a court acting in excess of its powers, if only because every act without jurisdiction or in excess of its powers in a proceeding over which it has jurisdiction of necessity involves an error of law'”” (La Rocca v Lane, 37 NY2d at 580; see Matter of Rush v Mordue, 68 NY2d at 353). In drawing the difficult distinction between legal errors and actions taken in excess of power, however, the Court of Appeals has instructed that such excesses of power involve “”an unlawful use or abuse of the entire action or proceeding as distinguished from an unlawful procedure or error in the action or proceeding itself related to the proper purpose of the action or proceeding”” (Matter of State of New York v King, 36 NY2d at 64; see Matter of Holtzman v Goldman, 71 NY2d at 569).

Here, the District Attorney contends that, even if Justice Blumenfeld correctly concluded that the conduct of the interview pursuant to the Program constituted a violation of Rule 8.4(c) of the rules of Professional Conduct (22 NYCRR 1200.0), he exceeded his authorized power by precluding Perez’s videotaped statement on that basis. Under the circumstances of this case, the District Attorney is correct.[FN2]

Initially, there is no specific statutory authority under which a court is permitted to [*7]exclude evidence obtained in violation of attorney-ethics rules. Under Criminal Procedure Law article 710, which is designed to assure that defendants in criminal proceedings have “”fair pretrial procedures to address alleged constitutional violations”” (People v Mendoza, 82 NY2d 415, 425), an aggrieved defendant may move to suppress evidence obtained by enumerated unlawful grounds (see CPL 710.20). The statute expressly permits suppression of statements which were involuntarily made within the meaning of CPL 60.45, but does not address exclusion of statements obtained in violation of ethical rules. In Brown I, this Court refused to prohibit Justice Blumenfeld from making a finding as to whether the conduct of the interview violated ethical rules, in order to ultimately determine whether any such violation constituted “”improper conduct”” of the kind that would render Perez’s statement involuntary under CPL 60.45 (see Matter of Brown v Blumenfeld, 89 AD3d at 103-104). This Court reasoned that, in making such a finding, Justice Blumenfeld would “”be doing so in determining a motion he is authorized’ to entertain,”” i.e., a motion to suppress a statement pursuant to CPL 710.20(3), and would merely be committing a legal error if, in fact, ethical violations could not qualify as “”improper conduct”” under CPL 60.45 (id. at 103).

Justice Blumenfeld, upon finding that the conduct of the interview violated rule 8.4(c) of the Rules of Professional Conduct (22 NYCRR 1200.0), did consider whether that violation rendered Perez’s statement involuntary under CPL 60.45. Significantly, Justice Blumenfeld concluded that the evidence did not demonstrate that Perez’s statement was involuntarily made, and, thus, that suppression pursuant to CPL 710.20(3) was unwarranted. Moreover, the portion of the preamble that Justice Blumenfeld found to be a misrepresentation in violation of rule 8.4(c) of the Rules of Professional Conduct (22 NYCRR 1200.0) advised Perez that he “”must”” tell the interviewer about anything he would like investigated. Nonetheless, Justice Blumenfeld found, the evidence did not demonstrate that the defendant made the challenged statements “”because he felt he must’ in order to give his side of the story.”” In other words, according to Justice Blumenfeld’s findings, there was no nexus between the alleged misrepresentation and Perez’s statement. Indeed, Justice

Blumenfeld concluded that the evidence did not even demonstrate that Perez “”understood anything in the preamble.”” Accordingly, Justice Blumenfeld effectively determined that the evidence did not show that Perez’s videotaped statement was a product of the perceived ethical violation.

Put differently, Justice Blumenfeld did not conclude that there was any violation of Perez’s constitutional or statutory rights, or of Miranda, or even that the challenged statement was demonstrably obtained as a result of the alleged unethical conduct.[FN3] Justice Blumenfeld, therefore, did not preclude the statement to remedy any demonstrable prejudice to Perez in the criminal proceeding that was before him, or, in general, to carry out the court’s responsibility in adjudicating that case. Under such circumstances, Justice Blumenfeld exceeded his power by imposing a generalized sanction upon the People, precluding them from presenting the statement as evidence in the criminal proceeding.

The only authority Justice Blumenfeld cites as providing him with the power to preclude the videotaped statement as a general sanction is Judiciary Law § 2-b(3), and the courts’ authority “”to regulate the conduct of attorneys appearing before [the court],”” both under its inherent power and pursuant to Judiciary Law § 90(2). Judiciary Law § 2-b(3) only authorizes a court “”to devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it”” (emphasis added). By its terms, this statute only gives Justice Blumenfeld the power to devise new process to carry out powers that he already possesses (see People v Wrotten, 14 NY3d 33, 37, cert denied _____ US _____, 131 S Ct 1020 [“”By enacting Judiciary Law § 2—b(3), the Legislature has explicitly authorized the courts’ use of innovative procedures where necessary to carry into effect the powers and jurisdiction possessed by (the court)'””]). Thus, this statute alone does not answer the question of whether Justice Blumenfeld has the power to impose a general sanction on the People, not necessary to the adjudication of the [*8]criminal proceeding, for violation of an ethical rule (cf. People v Wrotten, 14 NY3d at 36 [trial court properly invoked Judiciary Law § 2-b in allowing an adult complainant, too ill to appear in court, to testify via real-time, two-way video where it found such testimony necessary to permit the prosecution to proceed]; People v Ricardo B., 73 NY2d 228, 232-233 [Judiciary Law § 2-b properly invoked to empanel two juries, in order to allow for a joint trial of codefendants against whom the People’s evidence was the same]).

Judiciary Law § 90 is entitled “”Admission to and removal from practice by appellate division; character committees.”” As its title suggests, this lengthy statute lays out the various requirements and procedures for attorney admissions to the bar and concerning attorney discipline. Subdivision 2 of that statute, which is relied upon by Justice Blumenfeld, provides:

“”The supreme court shall have power and control over attorneys and counsellors-at-law and all persons practicing or assuming to practice law, and the appellate division of the supreme court in each department is authorized to censure, suspend from practice or remove from office any attorney and counsellor-at-law admitted to practice who is guilty of professional misconduct, malpractice, fraud, deceit, crime or misdemeanor, or any conduct prejudicial to the administration of justice; and the appellate division of the supreme court is hereby authorized to revoke such admission for any misrepresentation or suppression of any information in connection with the application for admission to practice”” (Judiciary Law § 90[2]).

More specifically, Justice Blumenfeld relies upon the first clause of the first sentence — “”[t]he supreme court shall have power and control over attorneys and counsellors-at-law”” — to contend that he has the power to preclude evidence for an ethical violation, not as a remedy for any prejudicial effect the violation had in the case before him, but as a sanction, merely because unethical conduct was committed. The courts do, of course, have the power to regulate the legal profession in general. The clause of Judiciary Law § 90(2) invoked by Justice Blumenfeld, which has its origin in the first Constitution of this State, generally confirms what would otherwise have been implied — that attorneys are appointed by the courts, and are to be “”regulated by the rules and orders of the said courts”” (People ex rel. Karlin v Culkin, 248 NY 465, 471-472, 477 [internal quotation marks omitted]; see also Gair v Peck, 6 NY2d 97, 110-111, cert denied 361 US 374). That power, however, is principally vested in the Appellate Divisions, which have the exclusive authority to conduct attorney disciplinary proceedings (see Judiciary Law § 90[2]; Gair v Peck, 6 NY2d at 102, 110 [invoking Judiciary Law § 90(2) as support for conclusion that the Appellate Division, First Department, had the power to adopt a rule relating to contingent fee arrangements in certain actions]; People ex rel. Karlin v Culkin, 248 NY at 468, 470 [citing Judiciary Law § 90(2) (former 88[2]) as support for its holding that the Appellate Division had the power to direct a general inquiry into the conduct of attorneys, particularly with respect to the practice of “” (a)mbulance chasing,'”” and in the course of that inquiry to compel an attorney to testify “”as to his acts in his professional relations””]; Matter of Brown v Blumenfeld, 89 AD3d at 102 n 5; McNamara v State of New York, 74 AD3d 760).[FN4] [*9]

Moreover, the purpose of the sanction here was not to regulate the conduct of the attorneys appearing before Justice Blumenfeld (cf. Rivera v Lutheran Med. Ctr., 73 AD3d 891). Rather, it was addressed to the administration of the Program by the District Attorney’s office, in general. In rejecting the People’s suggestion that an appropriate remedy for the perceived ethical violation would be formal discipline, Justice Blumenfeld indicated that the ethical breach was not “”fairly attributable”” to the prosecutors who appeared before him or to the prosecutors involved in interviewing Perez, but was the product of an “”office-wide failure.”” Justice Blumenfeld further indicated during the hearings held in connection with Perez’s suppression motion that he would “”like to see [the Program as] a work in progress”” and to see that it is “”done right.”” In that respect, Justice Blumenfeld expressed the following opinion concerning the Program: “”I think you [i.e., the District Attorney, and the ADAs charged with administering the program] are opening up a can of worms. It may not be in this case, but I think you are opening up a can of worms. I think you would be better off with the Miranda warnings”” (emphasis added). Thus, the sanction imposed by Justice Blumenfeld was not meant to regulate the conduct of the attorneys appearing before him in connection with People v Perez, but, rather, to regulate the administration of a program adopted by the District Attorney’s office. In this manner, Justice Blumenfeld exceeded his jurisdiction to adjudicate People v Perez and to regulate the conduct of the attorneys in connection with the adjudication of that case (cf. State of New York v Philip Morris, Inc., 308 AD2d 57, 68 [a court’s “”control over attorneys appearing before it”” and power to “”regulate the conduct of attorneys in his courtroom”” did not give judge the power to regulate the conduct of attorneys who had not previously appeared before him, or control conduct that did not occur in his courtroom (internal quotation marks omitted)]).

For this reason, the present case is distinguishable from United States v Hammad (858 F2d 834 [2d Cir], cert denied 498 US 871), upon which Justice Blumenfeld relies, and which, in any event, is not binding on this Court. In that case, the defendant had moved to suppress audio and video recordings of statements he made, after having retained counsel, to an individual cooperating with the prosecution. The defendant asserted that the prosecutor had, through the “”alter ego”” of the cooperating witness, communicated with him directly after learning that he had retained counsel, and, thereby, “”violated DR 7-104(A)(1) of the American Bar Association’s Code of Professional Responsibility”” (id. at 836). That Rule “”prohibit[ed] a lawyer from communicating with a party’ he [knew] to be represented by counsel regarding the subject matter of that representation”” (id. at 836). While the United States Court of Appeals for the Second Circuit ultimately concluded that suppression was not appropriate because the law had previously been unsettled in this area, it held that suppression may be ordered to remedy violation of a disciplinary rule. In so holding, the court reasoned that “” civilized conduct of criminal trials’ demands federal courts be imbued with sufficient discretion to ensure fair proceedings'”” (id. at 840-841, quoting Nardone v United States, 308 US 338, 342).

Here, Justice Blumenfeld opined that “”the purpose of a judicial sanction”” was to assure that “”the People are not able to benefit from their improper conduct.”” However, this observation was directly at odds with Justice Blumenfeld’s conclusion that the evidence did not show that Perez’s videotaped statement was a product of that conduct. In other words, Justice Blumenfeld effectively concluded that there was no evidence that the People did, in fact, benefit from any improper conduct. In light of that conclusion, the preclusion order was not remedial, and [*10]was not issued to further the adjudication of the underlying criminal proceeding. Relatedly, the Second Circuit’s holding was made in the context of a case, unlike People v Perez, in which the challenged evidence was unquestionably a product of the violation of a disciplinary rule, and may properly be interpreted as limited to such a factual circumstance (People v Anderson, 66 NY2d 529, 535-536, quoting Dowgherty v Equitable Life Assur. Socy., 266 NY 71, 88 [“”it is well settled that [t]he language of any opinion must be confined to the facts before the court'””]).

Justice Blumenfeld’s reliance upon the New York Court of Appeals’ decisions in People v Skinner (52 NY2d 24) and People v Hobson (39 NY2d 479) is similarly unavailing. The issue in those cases was whether defendants, known to be represented by a lawyer in connection with criminal charges under investigation, could validly waive their right to counsel and be interrogated, in the absence of their attorney, either in a custodial (see People v Hobson, 39 NY2d at 481) or in a noncustodial (see People v Skinner, 52 NY2d at 26) setting. The Court in both cases, answering in the negative and suppressing the evidence unlawfully obtained, indicated that its determination was based upon the privilege against self incrimination, the right to counsel, and the right to due process, all guaranteed by the State Constitution (see id. at 28; People v Hobson, 39 NY2d 479; see also NY Const, Art I, § 6). The Court also noted in those cases that the attempt to secure a waiver of a represented defendant’s right to counsel violated the ethical rule barring communication with a person known to be represented by counsel as to the subject of the representation (see People v Skinner, 52 NY2d at 29-30; People v Hobson, 39 NY2d at 484). While this breach of professional ethics was cited in support of the Court’s decision to suppress evidence in those cases, the Court excluded the evidence in Skinner and Hobson not only because it was obtained in violation of ethical rules, but because it was obtained in violation of the defendants’ constitutional rights. Thus, Skinner and Hobson do not stand for the proposition that violation of an ethical rule, by itself, is sufficient to warrant preclusion of evidence. Here, as noted above, Justice Blumenfeld did not conclude that Perez’s statement was obtained in violation of his constitutional rights (and we make no determination in that regard), but only in violation of ethical rules. In any event, People v Perez is distinguishable from Skinner and Hobson because the challenged evidence in those latter cases was a product of the violation of the ethical rule against communicating with a represented defendant on the subject of the representation, whereas here, Justice Blumenfeld did not find that the videotaped statement was a product of the alleged ethical violation.

Under these circumstances, it cannot be said that Justice Blumenfeld’s imposition of a sanction in the form of preclusion of the videotaped statement constituted an “”unlawful procedure or error in the action or proceeding itself related to the proper purpose of the action or proceeding”” (Matter of State of New York v King, 36 NY2d at 64 [emphasis added]). The proper purpose of the criminal proceeding is to determine whether the prosecution can prove that Perez is guilty of the crimes charged, and if so, to punish him (see People v Roselle, 84 NY2d 350, 355). Further, the proper purpose of a pretrial suppression hearing is primarily to address alleged constitutional and statutory violations and to ensure a fair trial (see CPL 710.20; People v Mendoza, 82 NY2d at 425). Here, the criminal proceeding, and more specifically, the suppression hearing, were used to impose a generalized sanction on the District Attorney’s office for its administration of a program. As such, Justice Blumenfeld’s preclusion order constituted a misuse of the entire proceeding (see Matter of State of New York v King, 36 NY2d at 64 [confirming that prohibition is appropriate where criminal action is “”used as a pretext””]).

It also cannot be said that, because the court has the power to suppress evidence in a criminal case or to decide a defendant’s motion to suppress evidence, Justice Blumenfeld was acting within his authority, and merely made a legal error in deciding to preclude the videotaped statement. Similar assertions were made and rejected in Matter of Holtzman v Goldman (71 NY2d 564), in which the People sought to prohibit the trial court from enforcing a trial order of dismissal, entered on the merits, even though no evidence had been presented and the merits had not yet been heard (id. at 566). In granting the petition, the Court concluded: “”it is no answer to assert that because the court can dismiss an indictment in some circumstances its improper exercise of that power in others was merely trial error”” (id. at 570). Rather, “”[t]he court has the power to do for some purposes what it lacks power to do for others'”” (id. at 570, quoting Matter of Proskin v County Ct. of Albany County, 30 NY2d at 20 [the fact that the trial court had the power to grant limited inspection of grand jury minutes for the purpose of determining the sufficiency of the indictment did not render it mere trial error to permit the defendant unlimited inspection of the minutes to assist in the preparation of his case]). Here, Justice Blumenfeld lacked the power to preclude Perez’s statement, since the sanction of preclusion was not imposed to remedy any prejudice to Perez or any [*11]violation of Perez’s rights, but for the purpose of sanctioning perceived unethical conduct, in general.[FN5]

Accordingly, as Justice Blumenfeld’s order precluding the videotaped statement as a sanction for unethical conduct committed by the District Attorney’s office in administering the Program in general was not mere legal error, but, rather, an improper arrogation of power, the remedy of prohibition lies (see Matter of Premo v Breslin, 89 NY2d at 997; Matter of Holtzman v Goldman, 71 NY2d at 570; Matter of Phillips v Ramsey, 42 AD3d 456, 458).

We further conclude that it is appropriate in this case to exercise our discretion to issue a writ of prohibition, preventing Justice Blumenfeld from enforcing the preclusion order. In so exercising its jurisdiction, this Court must consider, inter alia, if the harm that would result from the act to be prohibited can be adequately corrected through an appeal or other proceedings at law or in equity (see Matter of Pirro v Angiolillo, 89 NY2d at 359; Matter of Rush v Mordue, 68 NY2d at 354). A court should be “”most reluctant”” to grant a writ of prohibition if doing so will “”interfere[ ] with normal trial and appellate procedures by permitting collateral review of matters which could be cured on direct appeal”” (Matter of Holtzman v Goldman, 71 NY2d at 569; see Matter of Morgenthau v Erlbaum, 59 NY2d at 147). After all, “”if there is an adequate ordinary’ remedy, then there is no need to invoke an extraordinary”” one (Matter of Morgenthau v Erlbaum, 59 NY2d at 147).

Under the present circumstances, however, the People would be unable, in People v Perez, to seek appellate review of Justice Blumenfeld’s determination to preclude Perez’s videotaped statement as a sanction for a perceived violation of an ethical rule. “”No appeal lies from a determination made in a criminal proceeding unless specifically provided for by statute”” (People v Hernandez, 98 NY2d 8, 10; see People v Dunn, 4 NY3d 495, 497). CPL 450.20 sets forth the orders which are subject to appeal by the People in such an action. Although CPL 450.20(8) permits the People, under certain circumstances, to appeal from an order suppressing evidence pursuant to CPL 710.20 (see CPL 450.20[8]; People v Ayala, 89 NY2d 874, 875-876), Justice Blumenfeld denied Perez’s motion to suppress his videotaped statement pursuant to that statute. As such, the People could not appeal the preclusion order under CPL 450.20(8), and no other provision of that statute permits appeal of the subject order. While the nonappealability of an order is not dispositive, it is an “”important”” consideration (La Rocca v Lane, 37 NY2d at 579). Under the circumstances of this case, where the Legislature, in fashioning CPL 450.20, likely did not contemplate the unusual approach invoked by Justice Blumenfeld here, the nonappealability of the preclusion order weighs heavily in favor of invoking the remedy of prohibition.

Accordingly, in light of our determination that prohibition lies, and that the exercise of this Court’s discretion to issue the writ is warranted, the petition is granted, and the respondent Joel L. Blumenfeld, an Acting Justice of the Supreme Court, Queens County, is prohibited from enforcing an order dated April 17, 2012, precluding a videotaped statement given by the respondent Elisaul Perez from being admitted into evidence at the trial in an action entitled People v Perez, pending in the Supreme Court, Queens County, under Indictment No. 1202/09.

MASTRO, J.P., FLORIO and HALL, JJ., concur.

ADJUDGED that the petition is granted, without costs or disbursements, and the [*12]respondent Joel L. Blumenfeld, an Acting Justice of the Supreme Court, Queens County, is prohibited from enforcing an order dated April 17, 2012, precluding a videotaped statement given by the respondent Elisaul Perez from being admitted into evidence at the trial in an action entitled People v Perez, pending in the Supreme Court, Queens County, under Indictment No. 1202/09.

ENTER:

Aprilanne Agostino

Clerk of the Court

Footnotes

Footnote 1:. Justice Blumenfeld suppressed the physical evidence, i.e., the iPods, concluding that they were obtained as a result of an unlawful search. However, he declined to suppress a statement given by Perez to the police prior to the interview pursuant to the Program, which was substantially similar to the statement he made during that interview.

Footnote 2:. While the District Attorney takes issue with Justice Blumenfeld’s determination that the conduct of the interview pursuant to the Program constituted a violation of Rule 8.4(c) of the Rules of Professional Conduct (22 NYCRR 1200.0), the District Attorney does not, nor could he properly, seek a writ of prohibition on that basis. The determination by Justice Blumenfeld that rule 8.4(c) of the Rules of Professional Conduct (22 NYCRR 1200.0) was violated because a misrepresentation was made to Perez during the course of the interview would, if incorrect, merely represent a legal error for which the extraordinary remedy of prohibition is not available (cf. Matter of Brown v Blumenfeld, 89 AD3d at 103-104; Matter of Cuomo v Hayes, 54 AD3d 855, 858 [contention that the court was “”acting ultra vires as a result of its legal interpretation of a statute”” did not justify invocation of writ of prohibition]). Thus, no review is made of Justice Blumenfeld’s conclusion that rule 8.4(c) of the Rules of Professional Conduct (22 NYCRR 1200.0) was violated or that misrepresentations were made to Perez during the course of the interview.

Footnote 3:. The issue of whether there was a violation of any of Perez’s constitutional or statutory rights, or of Miranda, is not before us, and no conclusions are made in this regard. Further, in observing that Justice Blumenfeld did not find the challenged statement to be a product of the perceived ethical violation, it is noted that the considerations before us in this case, involving remedies for an alleged ethical violation, are distinct from those that may arise from a claim of a constitutional or statutory violation, or a violation of Miranda. It is acknowledged, for example, that where Miranda warnings are not given, a statement must be suppressed without making an assessment of the individual circumstances of a particular defendant (see Miranda v Arizona, 384 US at 468-469).

Footnote 4:. Justice Blumenfeld argues in his brief that “”[b]ecause courts have the inherent authority to sua sponte dismiss litigation . . . it follows that judges also have the authority to impose the lesser sanction of excluding evidence to address attorney misconduct.”” Even assuming such a conclusion would follow from that premise, in arguing that “”courts have the inherent authority to sua sponte dismiss litigation,”” Justice Blumenfeld relies upon the First Department’s decision in a civil case, Wehringer v Brannigan (232 AD2d 206, 207). Whether or not the courts have such inherent authority in a civil case, the court, in a criminal case, does not have inherent authority to dismiss an indictment (see Matter of Morgenthau v Roberts, 65 NY2d 749, 751-752; People v Douglass, 60 NY2d 194, 205). Rather, the court has the authority to dismiss an indictment only by virtue of statute (i.e. CPL 210.20), and only to the extent authorized by that statute (see Matter of Morgenthau, 65 NY2d at 751-752; People v Douglass, 60 NY2d at 205). (Justice Blumenfeld expressly declined to dismiss the indictment in People v Perez pursuant to CPL 210.20.) Similarly, although trial courts have the authority to preclude evidence as a sanction for discovery abuses, or to impose monetary sanctions for frivolous conduct, such sanctions are expressly permitted by statute (see CPLR 3126 [authorizing a court to make such orders “”as are just”” with regard to the failure to obey a discovery order or the willful failure to disclose relevant information]; CPL 240.70 [authorizing courts to preclude evidence, or “”take any other appropriate action”” for the failure to comply with the provisions of article 240, pertaining to discovery]) or court rule (see 22 NYCRR 130-1.1 [authorizing imposition of costs and attorneys fees for engaging in “”frivolous conduct””]). Indeed, an attorney can properly be subject to monetary sanctions “”only if there is legislation or a court rule authorizing the sanction”” (Matter of Premo v Breslin, 89 NY2d 995, 997).

Footnote 5:. Justice Blumenfeld’s act of sanctioning the People for unethical conduct, after denying Perez’s motion to suppress evidence pursuant to CPL 710.20 and 60.45, distinguishes the present petition from that of Brown I. This Court, in Brown I, contemplated only that Justice Blumenfeld would consider whether the videotaped statement should be suppressed under those statutes as a product of “”improper conduct”” which rendered the statement involuntary within the meaning of CPL 60.45. This Court held that Justice Blumenfeld’s determination as to whether the conduct of the interview so constituted “”improper conduct”” would, if erroneous, be mere legal error since Justice Blumenfeld had the power to suppress the statement if found to be involuntary under CPL 60.45. Here, we are faced with a wholly different circumstance in which, having found that the statement was voluntary, Justice Blumenfeld nonetheless precluded its use due to a perceived general ethical violation on the part of the District Attorney’s office as a whole.”

Matter of Kierra C. (Kevin C.)      2011-11706         2012 NY Slip Op 08726    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

PETER B. SKELOS, J.P.

RUTH C. BALKIN

THOMAS A. DICKERSON

SYLVIA HINDS-RADIX, JJ.

2011-11706

2012-00061

(Docket No. N-16441-11)

[*1]In the Matter of Kierra C. (Anonymous). Suffolk County Department of Social Services, respondent;

and

Kevin C. (Anonymous), appellant.

Glen Suarez, Huntington, N.Y., for appellant.

Dennis M. Cohen, County Attorney, Central Islip, N.Y. (Karin

A. Bohrer of counsel), for respondent.

Diane B. Groom, Central Islip, N.Y., attorney for the child.

DECISION & ORDER

In a child protective proceeding pursuant to Family Court Act article 10, the father appeals (1) from an order of fact-finding and disposition of the Family Court, Suffolk County (Freundlich, J.), dated December 8, 2011, which, after a hearing, inter alia, found that he neglected the subject child, and (2) from a decision of the same court dated December 14, 2011.

ORDERED that the appeal from the decision dated December 14, 2011, is dismissed, without costs or disbursements, as no appeal lies from a decision (see Schicchi v J.A. Green Constr. Corp., 100 AD2d 509, 509-510); and it is further,

ORDERED that the order of fact-finding and disposition dated December 8, 2011, is affirmed, without costs or disbursements.

The Family Court’s determination that the father neglected the subject child was supported by a preponderance of the evidence (see Family Ct Act §§ 1012[f][i][B]; 1046[b][i]). The evidence established, inter alia, that the father knew or should have known of the mother’s drug use and failed to exercise a minimum degree of care to ensure that the mother did not abuse drugs during her pregnancy (see Matter of Niviya K. [Alfonso M.], 89 AD3d 1027, 1028; Matter of Carlena B., 61 AD3d 752, 752; Matter of Cantina B., 26 AD3d 327, 327-328; Matter of Kanika M., 270 AD2d 490, 490; Matter of K. Children, 253 AD2d 764, 765). The evidence further established that the father himself was a substance abuser (see Matter of Carlena B., 61 AD3d at 752).

Accordingly, the Family Court properly determined that the father neglected the child.

SKELOS, J.P., BALKIN, DICKERSON and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Ceselka v City of New York      2011-11263         2012 NY Slip Op 08727    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

DANIEL D. ANGIOLILLO, J.P.

RUTH C. BALKIN

LEONARD B. AUSTIN

ROBERT J. MILLER, JJ.

2011-11263

(Index No. 19361/11)

[*1]In the Matter of John Ceselka, et al., respondents,

v

City of New York, et al., appellants.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Larry

A. Sonnenshein and Graham C. Morrison of counsel), for

appellants.

Andrew G. Sfouggatakis, P.C., Brooklyn, N.Y., for respondents.

DECISION & ORDER

In a proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim, the appeal is from an order of the Supreme Court, Kings County (Velasquez, J.), dated September 28, 2011, which granted the petition.

ORDERED that the order is reversed, on the law and in the exercise of discretion, with costs, the petition is denied, and the proceeding is dismissed.

On July 4, 2010, the petitioners’ home was severely damaged in a fire. Thereafter, the petitioners served a timely notice of claim on the City of New York alleging that after 911 calls were made in response to the fire, the City and the Fire Department of the City of New York (hereinafter together the appellants) “”failed to properly process these calls for help, responded to the wrong address, failed to timely respond, failed to inspect the premises upon arrival, and failed to extinguish or control the fire in a timely and appropriate manner.”” Later, after their time to file a timely notice of claim had long since expired, the petitioners commenced this proceeding seeking leave to serve a late notice of claim alleging that the appellants had negligently failed to maintain the fire hydrant in front of the petitioners’ home. The Supreme Court granted the petition.

The petitioners were required to serve a timely notice of claim within 90 days after the occurrence (see General Municipal Law § 50-e[1]). The petitioners’ timely notice of claim alerted the appellants to claims regarding deficiencies in their response to the fire on the date of the fire itself; it did not notify them of deficiencies in its maintenance of the hydrant (see Carter v City of New York, 38 AD3d 702, 703). Consequently, amendment of the initial, timely notice of claim was not permissible (see General Municipal Law § 50-e[6]; Carter v City of New York, 38 AD3d at 703). Under General Municipal Law § 50-e(5), however, a court may in its discretion permit service of a late notice of claim. That statute delineates several of the circumstances the court “”shall”” consider, the most important of which, as we observed in Matter of Felice v Eastport/South Manor Cent. School Dist. (50 AD3d 138, 147), is “”whether the public corporation or its attorney or its insurance carrier acquired actual knowledge of the essential facts constituting the claim within the [90-day time limit] or within a reasonable time thereafter”” (General Municipal Law § 50-e[5]). The court shall also consider “”all other relevant facts and circumstances”” (id.), including whether the petitioner had a reasonable excuse for failing to serve a timely notice of claim and whether the [*2]petitioner has demonstrated that that failure did not substantially prejudice the municipal corporation in maintaining its defense on the merits (see Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d at 150, 152).

As we held in Matter of Felice v Eastport/South Manor Cent. School Dist., “”[i]n order to have actual knowledge of the essential facts constituting the claim, the public corporation must have knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the notice of claim; the public corporation need not have specific notice of the theory or theories themselves”” (id.). Here, the petitioners failed to demonstrate that the appellants had the requisite knowledge of their alleged deficiencies in the maintenance of the fire hydrant; the allegations regarding the appellants’ alleged deficiencies in responding on the date of the fire did not suffice (seeid. at 149-150; cf. Carter v City of New York, 38 AD3d at 703). Furthermore, the petitioners failed to demonstrate a reasonable excuse for failing to serve a timely notice of claim pertaining to their allegation of negligence with respect to the appellants’ maintenance of the fire hydrant (see Matter of Smith v Baldwin Union Free School Dist., 63 AD3d 1078, 1079). Finally, the petitioners failed to demonstrate that their delay in timely asserting their claim pertaining to the fire hydrant would not substantially prejudice the appellants in maintaining their defense on the merits (see Matter of Iacone v Town of Hempstead, 82 AD3d 888, 889; Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d at 152).

Accordingly, the Supreme Court improvidently exercised its discretion in granting the petition to serve a late notice of claim.

In light of our determination, we need not address the appellants’ remaining contention.

ANGIOLILLO, J.P., BALKIN, AUSTIN and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Cunha v Urias                2011-11011         2012 NY Slip Op 08728    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

REINALDO E. RIVERA, J.P.

RUTH C. BALKIN

JOHN M. LEVENTHAL

SYLVIA HINDS-RADIX, JJ.

2011-11011

(Docket No. V-8968-10)

[*1]In the Matter of Antonio C. Cunha, respondent,

v

Rosa E. Urias, appellant.

Kent V. Moston, Hempstead, N.Y. (Jeremy L. Goldberg and Argun

M. Ulgen of counsel), for appellant.

Jessica Sin, Little Neck, N.Y., attorney for the child.

DECISION & ORDER

In a custody and visitation proceeding pursuant to Family Court Act article 6, the mother appeals from an order of commitment of the Family Court, Nassau County (Eisman, J.), dated November 21, 2011, which, after a hearing, in effect, adjudged her to be in contempt of court and committed her to the custody of the Nassau County Correctional Facility for a term of imprisonment of six months. By decision and order on motion dated December 14, 2011, this Court stayed enforcement of the order of commitment, pending hearing and determination of the appeal.

ORDERED that the order of commitment is modified, on the facts and in the exercise of discretion, by deleting the provision thereof committing the mother to the custody of the Nassau County Correctional Facility for a term of imprisonment of six months, and substituting therefor a provision committing the mother to the custody of the Nassau County Correctional Facility for a term of imprisonment of 30 days; as so modified, the order of commitment is affirmed, without costs or disbursements, and the matter is remitted to the Family Court, Nassau County, for the issuance of an amended order of commitment in accordance herewith.

By contesting the father’s contempt petition on the merits without objecting that it did not comply with the notice and warning requirements of Judiciary Law § 756, the mother waived any objections to the validity of the petition based upon those requirements (see Matter of Rappaport, 58 NY2d 725, 726; Matter of Laland v Edmond, 13 AD3d 451; Matter of Restivo v Cincu, 11 AD3d 621).

Moreover, contrary to the mother’s contention, the Family Court properly, in effect, adjudicated her in contempt for willfully failing to obey the visitation provision of a prior order (see Matter of McCormick v Axelrod, 59 NY2d 574, 583). However, under the circumstances of this case, the punishment imposed was excessive to the extent indicated herein (see Matter of Rjeoutski v Mavrina,AD3d, 2012 NY Slip Op 08018 [2d Dept 2012]).

The mother’s remaining contentions are either without merit or unpreserved for appellate review.

RIVERA, J.P., BALKIN, LEVENTHAL and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Denhoff v Mamaroneck Union Free Sch. Dist.                2011-00670         2012 NY Slip Op 08729    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

DANIEL D. ANGIOLILLO, J.P.

THOMAS A. DICKERSON

L. PRISCILLA HALL

LEONARD B. AUSTIN, JJ.

2011-00670

(Index No. 8160/10)

[*1]In the Matter of Elizabeth Denhoff, appellant- respondent,

v

Mamaroneck Union Free School District, respondent-appellant.

Kaufman, Borgeest & Ryan, LLP, Valhalla, N.Y. (Edward J.

Guardaro, Jr., of counsel and Bartlett, McDonough, Bastone &

Monaghan, LLP, former of counsel on the brief), for appellant-

respondent.

Ingerman Smith LLP, Harrison, N.Y. (Emily J. Lucas of

counsel), for respondent-appellant.

DECISION & ORDER

In a proceeding pursuant to CPLR article 75 to vacate an arbitration award dated March 2, 2010, made in connection with a compulsory arbitration pursuant to Education Law § 3020-a, which, after a hearing, sustained charges of misconduct against the petitioner and found that Mamaroneck Union Free School District had just cause to terminate the petitioner’s employment, the petitioner appeals, as limited by her brief, from stated portions of an order of the Supreme Court, Westchester County (Colangelo, J.), dated September 30, 2010, which, inter alia, denied the petition, and Mamaroneck Union Free School District cross-appeals from stated portions of the same order.

ORDERED that the cross appeal by Mamaroneck Union Free School District is dismissed, as it is not aggrieved by the portions of the order cross-appealed from (see CPLR 5511); and it is further,

ORDERED that the order is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to Mamaroneck Union Free School District.

Following a hearing, the petitioner, a tenured guidance counselor, was found guilty of 14 charges of misconduct, and 27 specifications thereunder. The various charges were based on the petitioner’s conduct over the course of three years, which spanned the entire time of her tenure, establishing a pattern of harassing, demeaning, and continuous bullying of her less senior colleagues, as well as efforts to sabotage the ability of certain colleagues to gain tenure.

Education Law § 3020-a(5) limits judicial review of an arbitrator’s determination, made after compulsory arbitration, to the grounds set forth in CPLR 7511. The grounds for vacating an award thereunder include, inter alia, misconduct, abuse of power, and procedural irregularities (see CPLR 7511[b][1][i], [iii], [iv]). However, “”[w]here, as here, parties are subject to compulsory arbitration, the award must satisfy an additional layer of judicial scrutiny—it must have evidentiary [*2]support and cannot be arbitrary and capricious'”” (City School Dist. of the City of N.Y. v McGraham, 17 NY3d 917, 919, quoting Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223), and it must be in accord with due process (see Motor Veh. Mfrs. Assn. of U.S. v State of New York, 75 NY2d 175, 185; Caso v Coffey, 41 NY2d 153, 156; Matter of Hegarty v Bd. of Educ. of the City of New York, 5 AD3d 771, 772). “”When reviewing compulsory arbitrations in education proceedings such as this, the court should accept the arbitrators’ credibility determinations, even where there is conflicting evidence and room for choice exists”” (Matter of Saunders v Rockland Bd. of Coop. Educ. Servs., 62 AD3d 1012, 1013; see Matter of Tasch v Board of Educ. of City of N.Y., 3 AD3d 502, 503).

On appeal, the petitioner challenges the arbitrator’s finding of guilt as to several of the charges sustained against her. Some of her arguments are raised for the first time on appeal and, therefore, are not properly before this Court (see Matter of Roemer v Board of Educ. of City School Dist. of City of N.Y., 268 AD2d 479, 480; Matter of Board of Educ. v Hempstead Classroom Teachers Assn., 251 AD2d 502, 503). As to the remaining challenges, the award was not arbitrary and capricious or irrational, and there was evidentiary support for the arbitrator’s finding of guilt as to each of the charges. The arbitrator engaged in a thorough analysis of the circumstances, evaluated the witnesses’ credibility, and arrived at a reasoned conclusion that termination of the petitioner’s employment was an appropriate penalty. It was rational for the arbitrator to find that the petitioner’s actions warranted termination under the circumstances of this case.

The petitioner was not denied due process. She received adequate notice of the charges against her in accordance with Education Law § 3020-a(2)(a).

The petitioner’s remaining contentions are without merit.

ANGIOLILLO, J.P., DICKERSON, HALL and AUSTIN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of DiDomenico   2011-08893         2012 NY Slip Op 08730    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

PETER B. SKELOS, J.P.

DANIEL D. ANGIOLILLO

THOMAS A. DICKERSON

L. PRISCILLA HALL, JJ.

2011-08893

[*1]In the Matter of Frank DiDomenico, deceased. Maria Maiorano, petitioner-respondent; Lydia T. DiDomenico, et al., objectants-appellants. (File No. 1480/08)

Costantino Fragale, Eastchester, N.Y., for objectants-appellants.

Lauterbach Garfinkel Damast & Hollander, LLP, White

Plains, N.Y. (Robert Damast of

counsel), for petitioner-respondent.

DECISION & ORDER

In a contested probate proceeding, the objectants appeal, as limited by their brief, from so much of a decree of the Surrogate’s Court, Westchester County (Scarpino, Jr., S.), dated July 13, 2011, as, upon an order of the same court dated June 27, 2011, granting that branch of the petitioner’s motion which was for summary judgment dismissing the objection to probate alleging undue influence, admitted the subject will to probate.

ORDERED that the decree is affirmed insofar as appealed from, with costs payable by the objectants personally.

The decedent, Frank DiDomenico, died on April 18, 2008, survived by his three children (hereinafter collectively the objectants). Prior to his admission to the hospital on April 7, 2008, the decedent was living at his home in Briarcliff Manor, with his companion, the petitioner, Maria Maiorano, with whom he had lived since 1995, or nearly the last 14 years of his life.

The petitioner propounded a will for probate dated April 14, 2008 (hereinafter the Will), which appointed her the executor of the estate and granted her the right to reside in the decedent’s house for a reasonable time until it was sold, at which time the petitioner was to receive $300,000 from the proceeds of sale and the unpaid principal and interest owed to her on a loan which she made to the decedent in 2005, which was secured by a mortgage. The Will also contained two bequests in the sum of $100,000 to each of the decedent’s two grandsons, to pay for college expenses, and divided the residuary estate among the objectants in three equal shares. The estate had an approximate value of $1,050,000, consisting of personal property valued at $300,000 and improved real property valued at $750,000.

The decedent executed the Will at the Westchester Medical Center one week after he was admitted there for shortness of breath. The decedent’s niece called an attorney who had previously represented the decedent in connection with a real estate transaction and the aforementioned loan and requested that she come to the hospital so the decedent could make his will. An attending nurse, the petitioner, the decedent’s daughter Michelle DiDomenico Ryan, and the [*2]decedent’s two brothers were all present when the decedent told his attorney the manner in which he wanted to dispose of his estate. After drafting the Will at her office, the attorney-drafter returned to the hospital on the same day to supervise the execution ceremony, in which, inter alia, the Will was witnessed by the decedent’s attending nurse and his longtime friend in the presence of two of the objectants.

The objectants filed joint objections to the Will, alleging, inter alia, that the Will was the product of fraud and undue influence exercised by the petitioner. The petitioner moved for summary judgment dismissing the objections, which the objectants opposed. In an order dated June 27, 2011, the Surrogate’s Court awarded summary judgment dismissing each of the objections to probate, and admitted the Will to probate by a decree dated July 13, 2011. The objectants now appeal.

An objectant contesting the admission of a propounded instrument to probate based on the alleged exercise of undue influence must show that “”the influence exercised amounted to a moral coercion, which restrained independent action and destroyed free agency, or which, by importunity which could not be resisted, constrained the testator to do that which was against his free will and desire, but which he was unable to refuse or too weak to resist”” (Matter of Zirinsky, 43 AD3d 946, 947-948 [internal quotation marks omitted]; see Matter of Walther, 6 NY2d 49, 53; Matter of Capuano, 93 AD3d 666, 667-668; Matter of Engelhardt, 88 AD3d 997, 998; Matter of Eastman, 63 AD3d 738, 740).

The petitioner established her prima facie entitlement to judgment as a matter of law dismissing the objection alleging that the Will was the product of undue influence with the affidavits of the attorney-drafter and the decedent’s longtime friend, and the “”self-proving”” affidavits executed by the decedent’s friend and his attending nurse, which were annexed to the Will, and which demonstrated, inter alia, that the decedent understood the terms of the Will as he made them, and that the Will was not the product of undue influence (see Matter of Capuano, 93 AD3d at 668; Matter of Engelhardt, 88 AD3d at 998; Matter of Eastman, 63 AD3d at 740; Matter of Zirinsky, 43 AD3d at 947).

While the decedent was seriously ill during the last week of his life, the affidavits of the attorney-drafter, the decedent’s longtime friend, and the attending nurse at the hospital, none of whom had an interest in the decedent’s estate, established that the decedent was alert, understood that he was dictating the disposition of his assets to the attorney-drafter, and was acting independently when he executed the Will, which bequeathed the decedent’s estate to the petitioner and his children and grandchildren, as the natural objects of his bounty.

In opposition, the objectants failed to raise a triable issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557), based on allegations which were conclusory and speculative, and failed to provide any evidence whatsoever to establish that the petitioner actually exercised undue influence over the decedent (see Matter of Marin, 82 AD3d 982, 983; Matter of Eastman, 63 AD3d at 740; Matter of Dubin, 54 AD3d 945, 946-947; Matter of Bustanoby, 262 AD2d 407, 408). Further, even if a confidential relationship existed between the decedent and the petitioner, based on the petitioner’s caring for the decedent during his illness, such relationship is counterbalanced by the close, “”family-like”” relationship which the petitioner and the decedent enjoyed for the nearly 14 years in which they lived together, until the time of the decedent’s death (cf. Matter of Anella, 88 AD3d 993, 995; Matter of Scher, 74 AD3d 827, 828; Matter of Zirinsky, 43 AD3d at 948).

Accordingly, the Surrogate’s Court properly granted that branch of the petitioner’s motion which was for summary judgment dismissing the objection to probate alleging undue influence, and admitted the Will to probate.

The objectants’ remaining contention is not properly before this Court. [*3]

SKELOS, J.P., ANGIOLILLO, DICKERSON and HALL, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Filipowski v Zoning Bd. of Appeals of Vil. of Greenwood Lake 2011-10126         2012 NY Slip Op 08731    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

WILLIAM F. MASTRO, J.P.

PETER B. SKELOS

ANITA R. FLORIO

THOMAS A. DICKERSON, JJ.

2011-10126

(Index No. 1174/08)

[*1]In the Matter of Adam J. Filipowski, et al., appellants,

v

Zoning Board of Appeals of Village of Greenwood Lake, respondent. Francis L. Filipowski, Rye Brook, N.Y., for appellants.

Fabricant Lipman & Frishberg, PLLC, Goshen, N.Y. (Alan S.

Lipman of counsel), for respondent.

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Village of Greenwood Lake dated September 18, 2008, which, after a hearing, denied the petitioners’ application for several area variances, the petitioners appeal, as limited by their brief, from stated portions of a judgment of the Supreme Court, Orange County (Ecker, J.), dated August 19, 2011, which, upon granting that branch of the petition which was to annul the determination, and upon remitting the matter to the Zoning Board of Appeals of the Village of Greenwood Lake for findings of fact and a determination on the merits of the application for area variances, inter alia, denied that branch of the petition which was to compel the Zoning Board of Appeals of the Village of Greenwood Lake to issue the requested area variances, and dismissed that portion of the proceeding.

ORDERED that the judgment is affirmed insofar as appealed from, with costs.

Contrary to the petitioners’ contention, for the purpose of determining compliance with the access requirements of Village Law § 7-736(2), it was appropriate for the Zoning Board of Appeals of the Village of Greenwood Lake (hereinafter the ZBA) and the Supreme Court to consider the issues of title to, and the petitioners’ right to use, a street designated as Louise Lane (see Matter of Morando v Town of Carmel Zoning Bd. of Appeals, 81 AD3d 959, 960; Matter of Seiden v Zoning Bd. of Appeals of Vil. of Ossining, 46 AD3d 694, 695; Matter of Joseph v Romano, 208 AD2d 926, 926-927).

Additionally, judicial review of an administrative determination is limited to the grounds invoked by the agency in making its decision (see Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 758; Matter of Aronsky v Board of Educ., Community School Dist. No.22 of City of N.Y., 75 NY2d 997, 1000). Here, the ZBA, relying on Village Law § 7-736(2), denied the petitioners’ application solely on the threshold ground that the petitioners were not eligible to apply for area variances due to their failure to demonstrate that their property had [*2]access to “”a public, Village, county, State or Federal dedicated street, road or highway.”” Accordingly, contrary to the petitioners’ contention, the Supreme Court, upon rejecting that threshold determination, properly declined to reach the merits of the petitioners’ application for area variances, and properly remitted the matter to the ZBA to consider and determine the merits of the petitioners’ application in the first instance (see Matter of Kodogiannis v Zoning Bd. of Appeals of Town of Malta, 42 AD3d 739, 740; cf. Matter of Gabrielle Realty Corp. v Board of Zoning Appeals of Vil. of Freeport, 24 AD3d 550; Matter of James H. Maloy, Inc. v Zoning Bd. of Appeals of Town of Sand Lake, 168 AD2d 874).

MASTRO, J.P., SKELOS, FLORIO and DICKERSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Galasso            2010-01047         2012 NY Slip Op 08732    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

RANDALL T. ENG, P.J.

WILLIAM F. MASTRO

REINALDO E. RIVERA

MARK C. DILLON

DANIEL D. ANGIOLILLO, JJ.

2010-01047 ON REMITTITUR

[*1]In the Matter of Peter J. Galasso, admitted as Peter John Galasso. Grievance Committee for the Ninth Judicial District, petitioner; Peter J. Galasso, respondent. (Attorney Registration No. 1783984) DISCIPLINARY proceeding instituted by the Grievance Committee for the Ninth Judicial District. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on March 10, 1982, under the name Peter John Galasso. The Grievance Committee for the Ninth Judicial District moved, inter alia, to suspend the respondent from the practice of law on an interim basis and for authorization to institute and prosecute a disciplinary proceeding in this Court. By decision and order on motion of this Court dated April 30, 2010, the Grievance Committee for the Ninth Judicial District was authorized to institute and prosecute a disciplinary proceeding, as the petitioner, Peter J. Galasso, admitted as Peter John Galasso, as the respondent, based upon the acts of professional misconduct set forth in a petition dated January 21, 2010, and the matter was referred to Steven C. Krane, Esq., as Special Referee to hear and report. That branch of the motion which was to suspend the respondent from the practice of law on an interim basis was denied. By further decision and order on motion dated June 28, 2010, this Court, on its own motion, reassigned the matter to the Honorable Arthur J. Cooperman, as Special Referee to hear and report, following the death of Steven C. Krane, Esq. By opinion and order of this Court dated February 21, 2012, the respondent was suspended from the practice of law for a period of two years, commencing March 21, 2012, and continuing until further order of the Court. By order dated May 1, 2012, the Court of Appeals granted both the respondent’s motion for leave to appeal, and the respondent’s motion for a stay. By opinion and order of the Court of Appeals dated October 23, 2012, the opinion and order of this Court dated February 21, 2012, was modified to the extent of dismissing charge five of the petition and the matter was remitted to this Court for further proceedings in accordance with the opinion and order of the Court of Appeals, to “”consider whether the sanction previously imposed remains an appropriate sanction.”” Upon review of whether the two-year suspension previously imposed remains an appropriate sanction in light of the Court of Appeals’s opinion and order dated October 23, 2012, we conclude that the sanction remains appropriate. The modification of this Court’s opinion and order dated February 21, 2012, dismissing charge five of the petition, which charge alleged that the respondent failed to comply with the lawful demands of the Grievance Committee, does not warrant a change in the sanction imposed. In determining an appropriate measure of discipline to impose, this Court considered all of the mitigation proffered by the respondent including, but not limited to, the absence of [*2]venality; the lengths to which the respondent went to bring his brother to justice; the expense the respondent has borne seeking recovery for his clients’ losses; and the substantial evidence of the respondent’s good character. Whether, and to what extent, attorneys are subject to discipline under circumstances where a defalcation was occasioned by someone other than the attorney within the attorney’s firm, depends on a number of factors: (1) the subject attorney’s partnership status and/or level of experience; (2) the presence (or absence) of “”early warning signs”” of financial improprieties, whether such signs were ignored and, if so, for how long; (3) whether the proper authorities were notified of defalcations upon their discovery; (4) the presence (or absence) of monetary loss to clients and the magnitude thereof; and (5) whether the attorney attempted to reimburse client losses caused by another (see e.g. Matter of Dahowski, 103 AD2d 354; Matter of Cardoso, 152 AD2d 157; Matter of Forman, 250 AD2d 116; Matter of Ponzini, 259 AD2d 142, mod 268 AD2d 478; Matter of Felman, 299 AD2d 15; Matter of Fonte, 75 AD3d 199; Matter of Laudonio, 75 AD3d 144; see also Matter of Jones, 100 AD3d 57). The foregoing factors were all considered in this matter, particularly the presence of “”warning signs”” and “”red flags;”” the extent of the clients’ monetary losses; and the fact that there has been no reimbursement of the client losses caused by the respondent’s brother. The cases proffered by the respondent in support of his argument that he should be, at most, publicly censured, are inapposite. Unlike those cases, the respondent herein was charged with having been unjustly enriched by the use of clients’ funds for his personal benefit, and that charge was sustained. The most fundamental obligation of attorneys entrusted with client funds is the duty to safeguard those funds. As the Court of Appeals stated, that duty, if no other, is “”crystal clear”” and “” a reasonable attorney, familiar with the Code and its ethical strictures, would have notice of what conduct is proscribed'”” Matter of Galasso, 19 NY3d 688, *4, quoting Matter of Holtzman, 78 NY2d 184, 191). We reiterate that the respondent failed to maintain appropriate vigilance over his firm’s bank accounts, resulting in actual and substantial harm to clients.

DECISION & ORDER

ENG, P.J., MASTRO, RIVERA, DILLON and ANGIOLILLO, JJ., concur.

Upon remittitur, it is

ORDERED that the sanction of a two-year suspension imposed by this Court in the opinion and order dated February 21, 2012, is adhered to; and it is further,

ORDERED that the suspension from the practice of law of the respondent, Peter J. Galasso, admitted as Peter John Galasso, shall commence on January 22, 2013, and shall continue until further order of this Court. The respondent shall not apply for reinstatement earlier than July 22, 2014. In such application, the respondent shall furnish satisfactory proof that during said period he: (1) refrained from practicing or attempting to practice law, (2) fully complied with this opinion and order and with the terms and provisions of the written rules governing the conduct of disbarred, suspended, and resigned attorneys (22 NYCRR 691.10), (3) complied with the applicable continuing legal education requirements of 22 NYCRR 691.11(c)(2), and (4) otherwise properly conducted himself; and it is further,

ORDERED that pursuant to Judiciary Law § 90, during the period of suspension and until the further order of this Court, the respondent, Peter J. Galasso, admitted as Peter John Galasso, shall desist and refrain from (l) practicing law in any form, either as principal or agent, clerk, or employee of another, (2) appearing as an attorney or counselor-at-law before any court, Judge, Justice, board, commission, or other public authority, (3) giving to another an opinion as to the law or its application, or any advice in relation thereto, and (4) holding himself out in any way as an attorney and counselor-at-law; and it is further,

ORDERED that if the respondent, Peter J. Galasso, admitted as Peter John Galasso, has been issued a secure pass by the Office of Court Administration, it shall be returned forthwith to the issuing agency and the respondent shall certify to the same in his affidavit of compliance pursuant to 22 NYCRR 691.10(f). [*3]

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Gold  2011-06543         2012 NY Slip Op 08733    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

RANDALL T. ENG, P.J.

WILLIAM F. MASTRO

REINALDO E. RIVERA

PETER B. SKELOS

MARK C. DILLON, JJ.

2011-06543

[*1]In the Matter of Allen S. Gold, a suspended attorney. Grievance Committee for the Tenth Judicial District, petitioner; Allen S. Gold, respondent. (Attorney Registration No. 2687390)

DISCIPLINARY proceeding instituted by the Grievance Committee for the Tenth Judicial District. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on July 19, 1995.

Robert A. Green, Hauppauge, N.Y. (Michael Fuchs of counsel),

for petitioner.

OPINION & ORDER

PER CURIAM. By decision and order on motion of this Court dated January 17, 2012, the respondent was immediately suspended from the practice of law in the State of New York, pending further order of this Court, and the Grievance Committee for the Tenth Judicial District (hereinafter the Grievance Committee) was authorized to institute and prosecute a disciplinary proceeding against the respondent pursuant to 22 NYCRR 691.4(e)(5), based on charges set forth in a verified petition dated July 12, 2011. The petition alleged that the respondent was guilty of, inter alia, engaging in conduct that involves dishonesty, fraud, deceit, or misrepresentation and engaging in conduct prejudicial to the administration of justice, by failing to cooperate with the Grievance Committee in its investigation of allegations of professional misconduct.

On April 10, 2012, the decision and order on motion was served upon the respondent, by certified and regular mail, at 450 Mariners Way, Copiague, New York; 5535 42nd Terrace, Vero Beach, Florida; and P.O. Box 700148, Wabasso, Florida. More than 20 days have since elapsed without an answer to the petition, as directed, or a request for an adjournment.

The Grievance Committee now moves to impose discipline against the respondent upon his default in that he failed to submit an answer to the petition. On May 23, 2012, the Grievance Committee’s notice of motion and affirmation were served upon the respondent, by regular and certified mail, at 450 Mariners Way, Copiague, New York; 5535 42nd Terrace, Vero Beach, Florida; and P.O. Box 700148, Wabasso, Florida. The respondent has neither opposed the Grievance Committee’s motion nor entered any response thereto.

Accordingly, the Grievance Committee’s motion is granted, the charges in the petition are deemed established and, effective immediately, the respondent is disbarred on default and his name is stricken from the roll of attorneys and counselors-at-law. [*2]

ENG, P.J., MASTRO, RIVERA, SKELOS and DILLON, JJ., concur.

ORDERED that the Grievance Committee’s motion is granted; and it is further,

ORDERED that, pursuant to Judiciary Law § 90, effective immediately, the respondent, Allen S. Gold, is disbarred and his name is stricken from the roll of attorneys and counselors-at-law; and it is further,

ORDERED that the respondent, Allen S. Gold, shall comply with this Court’s rules governing the conduct of disbarred, suspended, and resigned attorneys (see 22 NYCRR 691.10); and it is further,

ORDERED that pursuant to Judiciary Law § 90, the respondent, Allen S. Gold, is commanded to desist and refrain from (1) practicing law in any form, either as principal, agent, clerk, or employee of another, (2) appearing as an attorney or counselor-at-law before any court, Judge, Justice, board, commission, or other public authority, (3) giving to another an opinion as to the law or its application or any advice in relation thereto, and (4) holding himself out in any way as an attorney and counselor-at-law; and it is further,

ORDERED that if the respondent, Allen S. Gold, has been issued a secure pass by the Office of Court Administration, it shall be returned forthwith to the issuing agency and the respondent shall certify to the same in his affidavit of compliance pursuant to 22 NYCRR 691.10(f).

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Grande            2009-01255         2012 NY Slip Op 08734    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

RANDALL T. ENG, P.J.

WILLIAM F. MASTRO

REINALDO E. RIVERA

PETER B. SKELOS

L. PRISCILLA HALL, JJ.

2009-01255 ON MOTION FOR REINSTATEMENT

[*1]In the Matter of Vincent J. Grande III, a suspended attorney. (Attorney Registration No. 3051430)

DECISION & ORDER

Motion by Vincent J. Grande III for reinstatement to the Bar as an attorney and counselor-at-law. Mr. Grande was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on June 21, 2000. By decision and order on motion of this Court dated April 20, 2009, the Grievance Committee for the Tenth Judicial District was authorized to institute and prosecute a disciplinary proceeding against Mr. Grande and the issues raised were referred to the Honorable Stanley Harwood, as Special Referee to hear and report. By decision and order on motion of this Court dated September 24, 2009, Mr. Grande’s motion to stay the disciplinary proceeding was denied. By opinion and order of this Court dated February 15, 2011, Mr. Grande was suspended from the practice of law for a period of six months, commencing March 17, 2011, based on two charges of professional misconduct (see Matter of Grande, 81 AD3d 174). By decision and order on motion of this Court dated February 8, 2012, Mr. Grande’s motion for reinstatement was held in abeyance and the matter was referred to the Committee on Character and Fitness to investigate and report on his current fitness to practice law.

Upon the papers filed in support of the motion and the papers filed in opposition and in relation thereto, and upon the report of the Committee on Character and Fitness and the exhibits annexed thereto, it is

ORDERED that the motion is granted; and it is further,

ORDERED that, effective immediately, Vincent J. Grande III is reinstated as an attorney and counselor-at-law and the Clerk of the Court is directed to restore the name of Vincent J. Grande III to the roll of attorneys and counselors-at-law.

ENG, P.J., MASTRO, RIVERA, SKELOS and HALL, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Karen H. v Maurice G.               2011-05130         2012 NY Slip Op 08735    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

MARK C. DILLON, J.P.

LEONARD B. AUSTIN

SANDRA L. SGROI

JEFFREY A. COHEN, JJ.

2011-05130

(Docket Nos. V-4893-10, V-4894-10, V-4895-10)

[*1]In the Matter of Karen H. (Anonymous), petitioner,

v

Maurice G. (Anonymous), respondent; Austin G. (Anonymous), nonparty-appellant.

Diane B. Groom, Central Islip, N.Y., attorney for the child Austin

G., nonparty-appellant.

Sari M. Friedman, P.C., Garden City, N.Y. (Stacia J. Ury of

counsel), for respondent.

Rachel A. Camillery, Babylon, N.Y., attorney for the child Brett

G.

Robert G. Venturo, Patchogue, N.Y., attorney for the child Dayne

G.

Karen H. (Anonymous), Wallingford, Connecticut, petitioner

pro se.

DECISION & ORDER

In related custody and visitation proceedings pursuant to Family Court Act article 6, the child Austin G. appeals, as limited by his brief, from so much of an order of the Family Court, Suffolk County (Orlando, Ct. Atty. Ref.), dated May 4, 2011, as, after a hearing, denied the mother’s petition to modify the custody provisions set forth in a stipulation of settlement dated June 23, 2009, which was incorporated but not merged into the parties’ judgment of divorce dated September 10, 2009, to allow her to relocate from New York to Georgia with the subject children.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

The parties, who were divorced in September 2009, have three sons, ages 16, 15 and 12, respectively. Pursuant to a stipulation of settlement between the parties, executed on June 23, 2009, which was incorporated but not merged into their judgment of divorce, they agreed to joint legal custody of their children, with residential custody to the mother, and parenting time to the father every other weekend, one midweek visit, and alternating holidays. The mother agreed not to relocate beyond a 60-mile radius from their residence as of the date of the stipulation, without written consent of the father or an order of the court.

On January 11, 2010, the mother remarried. Her new husband was a resident of Georgia. The mother requested consent from the father to move to Georgia with the children, which the father refused to give. Thereafter, the mother petitioned to modify the terms of the stipulation of settlement to allow her to relocate from New York to Georgia with the children. [*2]

After a hearing, the Family Court, in an order dated May 4, 2011, inter alia, denied the mother’s petition.

“”To modify an existing custody arrangement, there must be a showing of a change in circumstances, and the determination of the Family Court must have a sound and substantial basis in the record”” (Matter of Englese v Strauss, 83 AD3d 705, 706; see Matter of Zeis v Slater, 57 AD3d 793, 793). “” When reviewing a custodial parent’s request to relocate, the court’s primary focus must be on the best interests of the child'”” (Matter of Garcia v Becerra, 68 AD3d 864, 865, quoting Matter of Giraldo v Gomez, 49 AD3d 645, 645; see Matter of Tropea v Tropea, 87 NY2d 727, 739; Matter of Said v Said, 61 AD3d 879, 881). Given that a “”custody determination is largely dependent upon an assessment of the credibility of the witnesses and upon the character, temperament, and sincerity of the parents”” (Matter of Plaza v Plaza, 305 AD2d 607, 607; see Matter of Grossman v Grossman, 5 AD3d 486, 486-487), “”its finding must be accorded great weight, and its grant of custody will not be disturbed unless it lacks a sound and substantial basis in the record”” (Matter of Venette v Rhodes, 301 AD2d 608, 608; see Matter of Garcia v Becerra, 68 AD3d at 865). However, “”in relocation determinations, [this Court’s] authority is as broad as that of the hearing court”” (Matter of Jennings v Yillah-Chow, 84 AD3d 1376, 1377), and the hearing court’s determination will not be affirmed if it lacks a sound and substantial basis in the record (see Matter of McBryde v Bodden, 91 AD3d 781, 782).

Here, since the mother sought permission to relocate to Georgia, she bore the burden of proof by a preponderance of the evidence that the move was in the children’s best interests (see Matter of Harding v Harding, 84 AD3d 1086, 1086; Bjornson v Bjornson, 38 AD3d 816, 816-817). When evaluating whether the proposed move would serve the children’s best interests, the factors to be considered “”include, but are certainly not limited to each parent’s reasons for seeking or opposing the move, the quality of the relationships between the child[ren] and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child[ren]’s future contact with the noncustodial parent, the degree to which the custodial parent’s and child[ren]’s [lives] may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child[ren] through suitable visitation arrangements”” (Matter of Tropea v Tropea, 87 NY2d at 740-741; see Matter of Schreurs v Johnson, 27 AD3d 654, 655). However, “”the impact of the move on the relationship between the child[ren] and the noncustodial parent will remain a central concern”” (Matter of Tropea v Tropea, 87 NY2d at 739).

Upon weighing the appropriate factors, the Family Court properly determined that the mother did not meet her burden (see Tropea v Tropea, 87 NY2d at 739; Matter of McBryde v Bodden, 91 AD3d 781). The mother failed to establish that the relocation to Georgia was economically necessary, that the children’s lives would be enhanced socially and educationally, that the move would not have a negative impact on the quality of the children’s future contact with the father, or that it was feasible to preserve the relationship between the father and the children through suitable visitation arrangements (see Matter of Tropea v Tropea, 87 NY2d at 740-741). Accordingly, the Family Court’s determination does not lack a sound and substantial basis in the record, and will not be disturbed by this Court.

The remaining contention of the child Austin G. is without merit.

DILLON, J.P., AUSTIN, SGROI and COHEN, JJ., concur.

ENTER: [*3]

Aprilanne Agostino

Clerk of the Court”

“Matter of Kaefer v New York State Off. of Parks, Recreation & Historical Preserv.”          2011-04247         2012 NY Slip Op 08736    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

RANDALL T. ENG, P.J.

PETER B. SKELOS

PLUMMER E. LOTT

JEFFREY A. COHEN, JJ.

2011-04247

(Index No. 16657/06)

[*1]In the Matter of Robert Kaefer, appellant-respondent,

v

New York State Office of Parks, Recreation and Historical Preservation, respondent-appellant.

Richard E. Casagrande, Latham, N.Y. (Jacquelyn Hadam of

counsel), for appellant-respondent.

Eric T. Schneiderman, Attorney General, New York, N.Y.

(Richard P. Dearing and Laura R. Johnson of

counsel), for respondent-appellant.

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to review a determination of the New York State Office of Parks, Recreation and Historical Preservation banning the petitioner from any future employment as a lifeguard, the petitioner appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Nassau County (Lally, J.), entered February 17, 2011, as denied so much of the petition as sought an award of an attorney’s fee, unless he prevailed at a disciplinary proceeding, and the New York State Office of Parks, Recreation and Historical Preservation cross-appeals, as limited by its brief, from so much of the same judgment as, in effect, granted the petition to the extent of vacating the ban on the petitioner’s re-employment pending a disciplinary proceeding.

ORDERED that the judgment is reversed insofar as cross-appealed from, on the law, the petition is denied, and the proceeding is dismissed on the merits; and it is further,

ORDERED that the appeal is dismissed as academic; and it is further,

ORDERED that one bill of costs is awarded to the New York State Office of Parks, Recreation and Historical Preservation.

The petitioner was employed by the New York State Office of Parks, Recreation and Historical Preservation (hereinafter OPRHP) as a seasonal lifeguard at Jones Beach State Park for 18 summers. In July 2005, he had to undergo an emergency appendectomy. Upon returning to work, his supervisor asked for a doctor’s note stating that the petitioner was fit to return to work. The petitioner could not get a note from his own doctor for several days, and instead he gave his employer two fraudulent doctor’s notes.

The petitioner’s supervisors discovered the fraud, and informed the petitioner that he would be subject to a disciplinary hearing. The hearing was subsequently cancelled, and the petitioner completed the 2005 season as a lifeguard. However, OPRHP refused to rehire him in [*2]2006, and determined that he was banned from any future employment as a lifeguard.

The petitioner commenced the instant CPLR article 78 proceeding, alleging that OPRHP’s refusal to rehire him was arbitrary and capricious in that, inter alia, it had failed to adhere to its policies and procedures. The Supreme Court determined that OPRHP had violated its policies and procedures by failing to complete the disciplinary proceeding, and it ordered OPRHP to do so. The court further determined that the petitioner could not seek an award of an attorney’s fee unless he prevailed in the disciplinary proceeding.

The Supreme Court erred when it determined that OPRHP had violated its policies and procedures by failing to complete the disciplinary proceeding. OPRHP chose not to discipline the petitioner during the 2005 season and, therefore, it did not need to continue the disciplinary proceeding. Once the 2005 season ended, the petitioner ceased to be OPRHP’s employee. Since, absent a constitutionally impermissible purpose, under New York law, an employer may terminate an at-will employee at any time, for any reason, or for no reason (see Smalley v Dreyfus Corp., 10 NY3d 55, 58; Murphy v American Home Prods. Corp., 58 NY2d 293, 305; LaSalle v Board of Educ. of Bridgehampton Union Free School Dist., 82 AD3d 1167, 1168), it follows that an employer may refuse to rehire a seasonal at-will employee. Thus, OPRHP was not obligated to rehire the petitioner the following year, and its decision not to do so did not constitute discipline and did not require the completion of a disciplinary proceeding.

In light of our determination that the proceeding should be dismissed, the appeal by the petitioner has been rendered academic.

ENG, P.J., SKELOS, LOTT and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Krome              2012-06370         2012 NY Slip Op 08737    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

RANDALL T. ENG, P.J.

WILLIAM F. MASTRO

REINALDO E. RIVERA

PETER B. SKELOS

JEFFREY A. COHEN, JJ.

2012-06370

[*1]In the Matter of Michael S. Krome, an attorney and counselor-at-law, resignor. (Attorney Registration No. 2381671)

Resignation tendered pursuant to 22 NYCRR 691.9 by Michael S. Krome, who was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on February 27, 1991.

Robert A. Green, Hauppauge, N.Y. (Stacey J. Sharpelletti of

counsel), for the Grievance Committee for the Tenth Judicial

District.

Meyer, Suozzi, English & Klein, P.C., New York, N.Y.

(Richard F.X. Guay of counsel), for

resignor.

OPINION & ORDER

PER CURIAM.Michael S. Krome has submitted an affidavit dated June 26, 2012, wherein he tenders his resignation as an attorney and counselor-at-law (see 22 NYCRR 691.9). Mr. Krome was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on February 27, 1991.

On January 13, 2012, in the United States District Court for the Southern District of Florida, Mr. Krome pleaded guilty to one count of conspiracy to commit securities fraud, wire fraud, and mail fraud, in violation of 18 USC § 371. The factual basis for Mr. Krome’s plea was his knowing and willful participation in the creation of materially false and misleading documents, including an opinion letter, in order to facilitate the issuance of, and remove trading restrictions on, shares of stock in a corporation named CO2 Tech, Ltd., and have “”free trading”” shares of CO2 Tech, Ltd., stock issued for sale to the public.

Mr. Krome acknowledges that he would not be able to successfully defend himself on the merits against charges predicated upon the foregoing.

Mr. Krome avers that his resignation is freely and voluntarily rendered; that he is not being subjected to coercion or duress by anyone; and that he is fully aware of the implications of submitting same, including being barred by Judiciary Law § 90 and the Rules of the Appellate Division, Second Department, from seeking reinstatement for a period of at least seven years.

Finally, Mr. Krome avers that his resignation is submitted subject to any application which could be made by the Grievance Committee for the Tenth Judicial District (hereinafter the Grievance Committee) for an order directing that he make restitution and that he reimburse the Lawyers’ Fund for Client Protection pursuant to Judiciary Law § 90(6-a). He further acknowledges the continuing jurisdiction of the Court to make such an order, which could be entered as a civil judgment against him pursuant to Judiciary Law § 90(6-a)(d), and specifically waives his opportunity [*2]to be heard in opposition thereto pursuant to Judiciary Law § 90(6-a)(f).

The Grievance Committee recommends that the Court accept Mr. Krome’s resignation from the Bar and that his name be stricken from the roll of attorneys and counselors-at-law.

Inasmuch as the proffered resignation complies with the requirements of 22 NYCRR § 691.9, it is accepted, and effective immediately, Mr. Krome is disbarred, and his name is stricken from the roll of attorneys and counselors-at-law.

ENG, P.J., MASTRO, RIVERA, SKELOS and COHEN, JJ., concur.

ORDERED that the resignation of Michael S. Krome is accepted and directed to be filed; and it is further,

ORDERED that pursuant to Judiciary Law § 90, effective immediately, Michael S. Krome is disbarred and his name is stricken from the roll of attorneys and counselors-at-law; and it is further,

ORDERED that Michael S. Krome shall promptly comply with this Court’s rules governing the conduct of disbarred, suspended, and resigned attorneys (see 22 NYCRR 691.10); and it is further,

ORDERED that pursuant to Judiciary Law § 90, effective immediately, Michael S. Krome is commanded to desist and refrain from (l) practicing law in any form, either as principal or as agent, clerk, or employee of another, (2) appearing as an attorney or counselor-at-law before any court, Judge, Justice, board, commission, or other public authority, (3) giving to another an opinion as to the law or its application or any advice in relation thereto, and (4) holding himself out in any way as an attorney and counselor-at-law; and it is further,

ORDERED that if Michael S. Krome has been issued a secure pass by the Office of Court Administration, it shall be returned forthwith to the issuing agency, and he shall certify to the same in his affidavit of compliance pursuant to 22 NYCRR 691.10(f).

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of LaMotta          2011-10872         2012 NY Slip Op 08738    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

PETER B. SKELOS, J.P.

L. PRISCILLA HALL

LEONARD B. AUSTIN

SYLVIA HINDS-RADIX, JJ.

2011-10872

[*1]In the Matter of Richard E. LaMotta, deceased. Robert Ornstein, et al., petitioners-respondents; Robert B. Gurian, guardian ad litem for Marika Nadel-LaMotta, et al., respondents; Katherine Avery LaMotta, appellant. (File No. 2225/10)

Vandenberg & Feliu LLP, New York, N.Y. (Bertrand C. Sellier

and Kevin Matz of counsel), for appellant.

King & Streisfeld, Lake Success, N.Y. (Jeffrey D. Streisfeld of

counsel), and Jeffrey S. Pomerantz,

New York, N.Y., for petitioners-

respondents (one brief filed).

DECISION & ORDER

In a probate proceeding, Katherine Avery LaMotta appeals from a decree of the Surrogate’s Court, Westchester County (Scarpino, Jr., S.), dated September 19, 2011, which, inter alia, upon, among other things, the denial of her guardian ad litem’s application to conduct examinations and discovery pursuant to SCPA 1404, admitted the decedent’s will and codicil to probate.

ORDERED that the decree is reversed, on the law, with costs, the application to conduct examinations and discovery pursuant to SCPA 1404 is granted, and the matter is remitted to the Surrogate’s Court, Westchester County, for further proceedings in accordance herewith.

Under SCPA 1404, any party to a probate proceeding, before or after filing objections, “”may examine any or all of the attesting witnesses [or] the person who prepared the will . . . as to all relevant matters which may be the basis of objections to the probate of the propounded instrument”” (SCPA 1404[4]). In addition, the party conducting such examination is entitled to “”all rights granted under article 31 of the civil practice law and rules with respect to document discovery”” (SCPA 1404[4]). “”As a general rule, the right of potential objectants, such as adversely affected distributees or legatees, to examine under SCPA 1404, is unconditional, without any preliminary showing of the need for the examination”” (Matter of Peckolick, 167 Misc 2d 597, 599; see Matter of Baker, 160 Misc 862, 863-864; cf. Matter of American Comm. for Weizmann Inst. of Science v Dunn, 10 NY3d 82, 94-95). Here, Katherine Avery LaMotta, the decedent’s granddaughter, was deprived of her unconditional right to examine the attesting witnesses and person(s) who prepared the will, and to related discovery pursuant to SCPA 1404. Accordingly, the decree must be reversed, the application to conduct examinations and discovery pursuant to SCPA 1404 granted, and the matter remitted to the Surrogate’s Court, Westchester County, for examinations and related discovery conducted pursuant to SCPA 1404, and a new determination of the petition.

SKELOS, J.P., HALL, AUSTIN and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Lebron v Lebron          2011-07113         2012 NY Slip Op 08739    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

RANDALL T. ENG, P.J.

REINALDO E. RIVERA

PLUMMER E. LOTT

JEFFREY A. COHEN, JJ.

2011-07113

(Docket Nos. V-11340-10, V-11341-10, V-24361-10, V-24362-10)

[*1]In the Matter of John Lebron, appellant,

v

Morna Lebron, respondent.

The Edelsteins, Faegenburg & Brown, New York, N.Y. (John G.

Yacos of counsel), for appellant.

Charles S. Sherman, Garden City, N.Y., for respondent.

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 6 to modify the custody provisions set forth in a stipulation of settlement dated December 14, 2006, which was incorporated but not merged into a judgment of divorce dated July 18, 2007, the father appeals from an order of the Family Court, Queens County (Seiden, Ct. Atty. Ref.), dated July 12, 2011, which, upon a decision of the same court dated July 11, 2011, in effect, granted the mother’s motion for an award of attorney’s fees pursuant to 22 NYCRR 130-1.1 in the sum of $13,800.

ORDERED that the order is reversed, on the law and in the exercise of discretion, with costs, and the motion is denied.

The parties are divorced and have two children from their marriage. The parties entered into a stipulation of settlement, which was incorporated but not merged into the judgment of divorce, pursuant to which they agreed that the mother would be the custodial parent and would have the right to move her primary residence anywhere within 50 miles of her residence in Queens without seeking the father’s consent or court approval.

The father filed a petition seeking to modify the custody provisions of the stipulation and to award him custody of the children, claiming that the mother was planning to move outside the radius specified in the stipulation of settlement, and that the proposed relocation would not be in the children’s best interests. The mother’s attorney eventually provided proof that the proposed move was just over 49 miles from the children’s current home in Queens.

The mother moved to dismiss the petition, and the Family Court granted the motion. The mother then moved for an award of attorney’s fees. In a decision dated July 11, 2011, the Family Court found that the father’s income was twice that of the mother’s, with the inclusion of the income of the father’s current wife, and further found that the father’s refusal to withdraw his petition was frivolous. The Family Court issued an order dated July 12, 2011, in effect, granting the mother’s motion for an award of attorney’s fees in the sum of $13,800.

The Family Court erred in granting the mother’s motion for an award of attorney’s fees. Conduct is frivolous within the meaning of 22 NYCRR 130—1.1 where it is “”completely [*2]without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law”” or “”undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another”” or “”it asserts material factual statements that are false”” (22 NYCRR 130—1.1[c][1], [2], [3]; see Matter of Miller v Miller, 96 AD3d 943; Gelobter v Fox, 90 AD3d 829, 832). A party seeking the imposition of a sanction or an award of an attorney’s fee pursuant to 22 NYCRR 130—1.1(c) has the burden of proof (see Matter of Miller v Miller, 96 AD3d 943).

Under the circumstances of this case, the father’s conduct in commencing and continuing this proceeding was not frivolous. Although the father did not withdraw his petition after the mother established, prima facie, that the proposed relocation was within the 50-mile limitation, it cannot be said that the father’s argument that the proposed relocation was not in the children’s best interests is completely without merit in law or fact. In addition, there is no evidence that the father was attempting to delay or prolong the resolution of the litigation or to harass or maliciously injure the mother, or that he has asserted material factual statements that are false (see Muro-Light v Farley, 95 AD3d 846; Mascia v Maresco, 39 AD3d 504; Matter of Wecker v D’Ambrosio, 6 AD3d 452).

Accordingly, the Family Court improvidently exercised its discretion in granting the mother’s motion for an award of attorney’s fees pursuant to 22 NYCRR 130-1.1 (see Matter of Miller v Miller, 96 AD3d 943; Maybaum v Maybaum, 89 AD3d 692, 697; Matter of Wieser v Wieser, 83 AD3d 950).

The parties’ remaining contentions either are without merit or need not be addressed in light of our determination.

ENG, P.J., RIVERA, LOTT and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Ngo v Quach  2011-11000         2012 NY Slip Op 08740    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

PETER B. SKELOS, J.P.

RUTH C. BALKIN

CHERYL E. CHAMBERS

ROBERT J. MILLER, JJ.

2011-11000

(Docket No. F-13454-10)

[*1]In the Matter of Lien Thi Ngo, appellant,

v

Thang Duc Quach, respondent.

Lien Thi Ngo, Brooklyn, N.Y., appellant pro se.

DECISION & ORDER

In a child support proceeding pursuant to Family Court Act article 4, the mother appeals from an order of the Family Court, Kings County (Toussaint, J.), dated November 21, 2011, which denied her objections to an order of the same court (Baur, S.M.), dated July 18, 2011, which, upon findings of fact of the same court (Baur, S.M.), dated July 12, 2011, dismissed her petition for an upward modification of the father’s child support obligation.

ORDERED that the order dated November 21, 2011, is affirmed, without costs or disbursements.

A party seeking modification of a support order has the burden of establishing the existence of a substantial change in circumstances warranting the modification (see Matter of Bouie v Joseph, 91 AD3d 641; Matter of Nieves-Ford v Gordon, 47 AD3d 936). Here, the Support Magistrate properly found that the mother failed to meet her burden of establishing a substantial change in circumstances. Notably, the mother’s allegations that the father was living a more lavish lifestyle than he disclosed in his financial disclosure affidavit is based on evidence which predates the July 20, 2009, judgment of divorce. Accordingly, the Family Court properly denied the objections to the order dismissing the petition for an upward modification of child support.

SKELOS, J.P., BALKIN, CHAMBERS and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Josue M. (Pascaul A.)                2011-11827         2012 NY Slip Op 08741    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

PETER B. SKELOS, J.P.

RUTH C. BALKIN

CHERYL E. CHAMBERS

ROBERT J. MILLER, JJ.

2011-11827

2011-11828

(Docket Nos. N-13255/10, N-13256/10, N-13257/10, N-13258/10)

[*1]In the Matter of Josue M. (Anonymous). Administration for Children’s Services, petitioner- respondent;

and

Pascaul A. (Anonymous), appellant, et al., respondent. (Proceeding No. 1)

In the Matter of Raquel M. (Anonymous). Administration for Children’s Services, petitioner- respondent;

and

Pascaul A. (Anonymous), appellant, et al., respondent. (Proceeding No. 2)

In the Matter of Jennifer A. (Anonymous). Administration for Children’s Services, petitioner- respondent;

and

Pascaul A. (Anonymous), appellant, et al., respondent. (Proceeding No. 3)

In the Matter of Rosse C. (Anonymous). Administration for Children’s Services, petitioner- respondent;

and

Pascaul A. (Anonymous), appellant, et al., respondent. (Proceeding No. 4)

Placidus Aguwa, Jamaica, N.Y., for appellant.

Michael A. Cardozo, Corporation Counsel, New York, N.Y.

(Larry A. Sonnenshein and Kathy H.

Chang of counsel), for petitioner-

respondent.

Steven Banks, New York, N.Y. (Tamara A. Steckler and

Diane Pazar of counsel), attorney for

the child Raquel M.

DECISION & ORDER

In four related child protective proceedings pursuant to Family Court Act article [*2]10, Pascual A. appeals from (1) a decision of the Family Court, Queens County (McGowan, J.), entered September 8, 2011, and (2) an order of disposition of the same court dated November 29, 2011, which, after fact-finding and dispositional hearings, and upon a finding that he had abused the child Raquel M., and had derivatively abused the other three subject children, inter alia, directed that he not have contact with three of the children until their 18th birthdays, that he only have supervised visits with one of the subject children, and that he complete a sex offender program.

ORDERED that the appeal from the decision is dismissed, without costs or disbursements, as no appeal lies from a decision (see Schicchi v J.A. Green Constr. Corp., 100 AD2d 509); and it is further,

ORDERED that the order of disposition is affirmed, without costs or disbursements.

“”At a fact-finding hearing in a child protective proceeding pursuant to Family Court Act article 10, the petitioner has the burden of establishing, by a preponderance of the evidence, that the subject child has been abused or neglected”” (Matter of Kassandra V [Sylvia L.], 90 AD3d 940, 941; see Family Ct Act § 1046[b][i]; Matter of Ndeye D. [Benjamin D.], 85 AD3d 1026, 1027). Contrary to the appellant’s contention, the Family Court’s determination that he sexually abused the child Raquel M. is supported by a preponderance of the evidence (see Family Ct Act § 1012[e][iii]; Penal Law § 130.55; Matter of Lindsay B. [Carlton B.], 80 AD3d 763, 764). The Family Court has considerable discretion in deciding whether a child’s out-of-court statements describing incidents of abuse have been reliably corroborated and whether the record as a whole supports such a finding (see Matter of Christina F., 74 NY2d 532, 536; Matter of Alexander M. [Benjamin M.], 88 AD3d 794, 795). Here, Raquel M.’s sworn in-court testimony sufficiently corroborated her out-of-court description of the abuse (see Matter of Christina F., 74 NY2d at 536-537; Matter of Bianca M., 282 AD2d 536, 536).

The appellant’s remaining contention is unpreserved for appellate review and, in any event, without merit.

SKELOS, J.P., BALKIN, CHAMBERS and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Maxwell v Smith          “2012-04207,”    2012 NY Slip Op 08742    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

REINALDO E. RIVERA, J.P.

MARK C. DILLON

SHERI S. ROMAN

JEFFREY A. COHEN, JJ.

2012-04207 DECISION, ORDER & JUDGMENT

[*1]In the Matter of David Maxwell, petitioner,

v

Mary H. Smith, etc., respondent. David Maxwell, Auburn, N.Y., petitioner pro se.

Eric T. Schneiderman, Attorney General, New York, N.Y. (Andrew

H. Meier of counsel), for respondent.

Proceeding pursuant to CPLR article 78, inter alia, in the nature of mandamus to compel the respondent, Mary H. Smith, a Justice of the Supreme Court, Westchester County, to determine the petitioner’s motion to renew his prior motions to resettle the transcript of his trial in an underlying criminal action entitled People v Maxwell, commenced in that court under Indictment No. 1481/00, or to conduct a reconstruction hearing, and application by the petitioner for poor person relief.

ORDERED that the application for poor person relief is granted to the extent that the filing fee imposed by CPLR 8022(b) is waived, and the application is otherwise denied; and it is further,

ADJUDGED that the petition is denied and the proceeding is dismissed on the merits, without costs or disbursements.

The extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and only where there exists a clear legal right to the relief sought (see Matter of Legal Aid Socy. of Sullivan County v Scheinman, 53 NY2d 12, 16). The petitioner has failed to demonstrate a clear legal right to the relief sought.

RIVERA, J.P., DILLON, ROMAN and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Dashawn N. (Youvonne N.)    2012-05410         2012 NY Slip Op 08743    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

DANIEL D. ANGIOLILLO, J.P.

THOMAS A. DICKERSON

L. PRISCILLA HALL

LEONARD B. AUSTIN, JJ.

2012-05410

2012-05861

2012-06287

(Docket Nos. N-13212-05, N-13213-05, N-16435-05, N-6921-11)

[*1]In the Matter of Dashawn N. (Anonymous). Westchester County Department of Social Services, respondent;

and

Youvonne N. (Anonymous), appellant. (Proceeding No. 1)

In the Matter of Judae N. (Anonymous). Westchester County Department of Social Services, respondent;

and

Youvonne N. (Anonymous), appellant. (Proceeding No. 2)

In the Matter of Nicholas N. (Anonymous). Westchester County Department of Social Services, respondent;

and

Youvonne N. (Anonymous), appellant. (Proceeding No. 3)

In the Matter of Kelsey N.-C. (Anonymous), also known as Kelcie N.-C. (Anonymous). Westchester County Department of Social Services, respondent;

and

Youvonne N. (Anonymous), appellant. (Proceeding No. 4) George E. Reed, Jr., White Plains, N.Y., for appellant.

Robert Meehan, County Attorney, White Plains, N.Y. (James

Castro-Blanco and Thomas G. Gardiner of counsel), for respondent.

Lisa S. Goldman, White Plains, N.Y., attorney for the children.

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 10, the mother appeals (1), as limited by her brief, from so much of an order of the Family Court, Westchester County (Recine, Ct. Atty. Ref.), dated May 16, 2012, as denied her motion to vacate the determinations made at a permanency hearing held on May 4, 2012, (2), as limited by her brief, from stated portions of an order of the same court (Recine, Ct. Atty. Ref.) dated May 23, 2012, which, inter alia, after a permanency hearing held on May 4, 2012, changed the permanency goal for the subject child Kelsey N.-C. from reunification with her to placement for adoption, and (3) from an order of the same court (Schauer, J.) dated June 29, 2012, which denied the mother’s motion to vacate certain determinations [*2]made by the Court Attorney Referee on the ground of lack of jurisdiction.

ORDERED that the orders dated May 16, 2012, and May 23, 2012, are reversed insofar as appealed from, on the law, without costs or disbursements, the mother’s motion to vacate the determinations made at a permanency hearing held on May 4, 2012, is granted, the determinations made at a permanency hearing held on May 4, 2012, are vacated, and the matter is remitted to the Family Court, Westchester County, for a new hearing before a different Court Attorney Referee in accordance herewith and a new determination thereafter; and it is further,

ORDERED that the order dated June 29, 2012, is affirmed, without costs or disbursements.

A continuation of a permanency hearing was scheduled before a Court Attorney Referee (hereinafter the Referee) in the Family Court, Westchester County, at 9:30 A.M. on May 4, 2012. At 9:45 A.M. on May 4, 2012, the Referee proceeded with the hearing, despite the absence of the mother and the mother’s attorney. The Referee made no inquiry into whether the mother or her attorney were en route to the hearing, or were actually somewhere in the Family Court. At the conclusion of the 17-minute hearing, the Referee, inter alia, made certain determinations and approved the petitioner’s request to modify the permanency goal for the subject child Kelsey N.-C. (hereinafter the subject child) from reunification with the mother to placement for adoption.

That same day, the mother’s attorney moved by order to show cause to vacate the determinations made at the May 4, 2012, permanency hearing. The mother’s attorney asserted that he arrived at the Family Court for the hearing on May 4, 2012, at approximately 9:43 A.M., and was waiting for the case to be called. The mother’s attorney maintained that he saw an Assistant County Attorney, who represented the petitioner in the matter, in the waiting area and that the Assistant County Attorney saw him, but that he moved to a different waiting area and began reviewing his file. At 10:15 A.M., the mother’s attorney saw the attorney for the children, who informed him that the proceeding was “”done.”” According to the mother’s attorney, a court officer told him that the case and his name were called at 9:50 A.M., but the mother’s attorney did not hear his name called. In an order dated May 16, 2012, the Family Court, inter alia, denied the motion to vacate the determinations and, in an order dated May 23, 2012, the Family Court, among other things, changed the permanency goal for the subject child from reunification with the mother to placement for adoption.

Under the particular circumstances of this case, the Family Court improperly conducted the permanency hearing on May 4, 2012, in the absence of the mother’s attorney (see Matter of Williams v Bentley, 26 AD3d 441). The Family Court’s actions in this regard effectively deprived the mother of her fundamental right to counsel (see US Const Amend VI; NY Const, art I, § 6; Family Ct Act § 262[a][i]; Matter of Stephen Daniel A. [Sandra M.], 87 AD3d 735, 736), which also constituted a denial of due process and requires reversal, without regard to the merits of the mother’s position (see Matter of Williams v Bentley, 26 AD3d at 442; Matter of Knight v Griffith, 13 AD3d 449).

Accordingly, the orders dated May 16, 2012, and May 23, 2012, must be reversed insofar as appealed from, the mother’s motion to vacate the determinations made at the May 4, 2012, permanency hearing must be granted, and the matter must be remitted to the Family Court, Westchester County, for a new hearing before a different Court Attorney Referee as to the permanency goal for the subject child and a new determination thereafter.

The Family Court properly denied the mother’s motion to vacate certain determinations made by the Referee on the ground of lack of jurisdiction. Contrary to the mother’s contention, the Referee had jurisdiction to render the subject determinations based on an order of reference and a stipulation of the parties dated September 27, 2011.

The mother’s remaining contentions are without merit. [*3]

ANGIOLILLO, J.P., DICKERSON, HALL and AUSTIN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Nelson v Brennan       “2011-10269,”    2012 NY Slip Op 08744    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

MARK C. DILLON, J.P.

RUTH C. BALKIN

CHERYL E. CHAMBERS

ROBERT J. MILLER, JJ.

2011-10269 DECISION, ORDER & JUDGMENT

[*1]In the Matter of Aaron Nelson, petitioner,

v

Michael Brennan, etc., et al., respondents.

Aaron Nelson, Gowanda, N.Y., petitioner pro se.

Eric T. Schneiderman, Attorney General, New York, N.Y.

(Michael J. Keane of counsel), for

respondents.

Proceeding pursuant to CPLR article 78, inter alia, in the nature of prohibition to prohibit the respondents from enforcing a resentence of the Supreme Court, Kings County, imposed December 12, 2008, in a criminal action entitled People v Nelson, under Kings County Indictment No. 6891/01, and application by the petitioner for poor person relief.

ORDERED that the application for poor person relief is granted to the extent that the filing fee imposed by CPLR 8022(b) is waived, and the application is otherwise denied; and it is further,

ADJUDGED that the petition is denied and the proceeding is dismissed on the merits, without costs or disbursements.

“”Because of its extraordinary nature, prohibition is available only where there is a clear legal right, and then only when a court—in cases where judicial authority is challenged—acts or threatens to act either without jurisdiction or in excess of its authorized powers”” (Matter of Holtzman v Goldman, 71 NY2d 564, 569; see Matter of Rush v Mordue, 68 NY2d 348, 352).

The petitioner has failed to demonstrate a clear legal right to the relief sought.

DILLON, J.P., BALKIN, CHAMBERS and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

“Matter of 1650 Realty Assoc., LLC v Golden Touch Mgt., Inc.”    2011-08280         2012 NY Slip Op 08745    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

PETER B. SKELOS, J.P.

ANITA R. FLORIO

SHERI S. ROMAN

ROBERT J. MILLER, JJ.

2011-08280

2011-08287

(Index No. 5408/11)

[*1]In the Matter of 1650 Realty Associates, LLC, et al., respondents,

v

Golden Touch Management, Inc., et al., appellants.

Cole, Schotz, Meisel, Forman & Leonard, P.A., A Professional

Corporation, New York, N.Y. (Steven L. Klepper and Lauren M.

Manduke of counsel), for appellants.

Glinkenhouse, Floumanhaft & Queen, Cedarhurst, N.Y. (Alan

Queen of counsel), for respondents.

DECISION & ORDER

In a proceeding, inter alia, for an accounting, Golden Touch Management, Inc., Paro Management Co., Inc., Jangla Realty Corp., Serhof Realty Corp., Ronald Swartz, and Steven Swartz appeal (1), as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Bucaria, J.), dated July 13, 2011, as granted the petitioners’ motion for a preliminary injunction to the extent that they were preliminarily enjoined from transferring any assets or monies belonging to the petitioners without the written consent of Gladys Lind, the petitioners’ managing member, and from making any payments from the petitioners’ funds to them or their principals, or anyone on their behalf, and set an undertaking in the sum of only $50,000 pursuant to CPLR 6312 (b), and (2) from an order of the same court dated August 8, 2011, which, in effect, granted the petitioners’ application to clarify the order dated July 13, 2011, to the extent of preliminarily enjoining them from managing the petitioners’ properties, and directed them to remit to the petitioners all funds in their possession derived from the subject properties.

ORDERED that on the Court’s own motion, the proceeding is converted to an action, inter alia, for an accounting, the order to show cause is deemed to be the summons, and the petition is deemed to be the complaint (see CPLR 103[c]); and it is further,

ORDERED that on the Court’s own motion, the notice of appeal from the order dated August 8, 2011, is deemed to be an application for leave to appeal from that order, and leave to appeal is granted (see CPLR 5701[c]); and it is further,

ORDERED that the order dated July 13, 2011, is affirmed insofar as appealed from; and it is further,

ORDERED that the order dated August 8, 2011, is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs. [*2]

The petitioners owned properties that were managed by the appellants. The appellants had managed the properties for more than 10 years, when the petitioners’ managing member discharged the appellants and hired nonparty Ivy Property Management (hereinafter Ivy) as the new management company for the properties. However, the appellants refused to be discharged from their management duties, arguing that the agreement between the parties required them to remain managers of the petitioners’ properties for an additional 30 years. The petitioners commenced this proceeding seeking, inter alia, an accounting, and a transfer of their records, files, and documents to Ivy. The petitioners thereafter sought a preliminary injunction to, among other things, prohibit the appellants from using any of the petitioners’ funds to pay for other properties managed by the appellants and to direct the appellants to send all relevant records and files to Ivy. The Supreme Court granted the requested injunction in part. This appeal ensued.

In order to prevail on a motion for a preliminary injunction, the movant must demonstrate by clear and convincing evidence (1) a likelihood of ultimate success on the merits, (2) irreparable injury absent the granting of the preliminary injunction, and (3) a balancing of the equities in the movant’s favor (see Brach v Harmony Servs., Inc., 93 AD3d 748, 749; 91-54 Gold Rd., LLC v Cross-Deegan Realty Corp., 93 AD3d 649). “” The purpose of a preliminary injunction is to maintain the status quo and prevent the dissipation of property that could render a judgment ineffectual'”” (Perpignan v Persaud, 91 AD3d 622, 622, quoting Ruiz v Meloney, 26 AD3d 485, 486; see 306 Rutledge, LLC v City of New York, 90 AD3d 1026, 1028). “”The decision to grant or deny a preliminary injunction rests in the sound discretion of the Supreme Court”” (Blinds & Carpet Gallery, Inc. v E.E.M. Realty, Inc., 82 AD3d 691, 692). “” The mere existence of an issue of fact will not itself be grounds for the denial of the motion'”” (Reichman v Reichman, 88 AD3d 680, 681, quoting Arcamone-Makinano v Britton Prop., Inc., 83 AD3d 623, 625).

In its order dated July 13, 2011, the Supreme Court granted the petitioners’ motion for a preliminary injunction to the extent that the appellants were preliminarily enjoined from (1) transferring any assets or monies to the petitioners without the written consent of the petitioners’ managing member, and (2) making any payments from the petitioners’ funds to the appellants or their principals, or anyone on the appellants’ behalf. In pertinent part, the Supreme Court also conditioned the preliminary injunction upon the petitioners posting a bond in the amount of $50,000.

Contrary to the appellants’ contention, the petitioners demonstrated a likelihood of ultimate success on their claims. The petitioners also demonstrated the prospect of irreparable injury absent a preliminary injunction, and that a balancing of the equities tipped in their favor (see 91-54 Gold Rd., LLC v Cross-Deegan Realty Corp., 93 AD3d at 650). Accordingly, the Supreme Court providently exercised its discretion in granting the petitioners’ motion for a preliminary injunction to the extent that the appellants were preliminarily enjoined from transferring any assets or monies belonging to the petitioners without the written consent of Gladys Lind, the petitioners’ managing member, and from making any payments from the petitioners’ funds to them or their principals, or anyone on their behalf. Furthermore, the Supreme Court providently exercised its discretion in granting the petitioners’ application to clarify the order dated July 13, 2011, to the extent of preliminarily enjoining the appellants from managing the petitioners’ properties, and in directing them to remit to the petitioners all funds in their possession derived from the subject properties (see Pope v 818 Jeffco Corp., 74 AD3d 1165, 1165; Reback v Reback, 73 AD3d 890, 891).

Lastly, the Supreme Court did not improvidently exercise its discretion in directing the petitioners to post a bond in the sum of $50,000 (see 84-85 Gardens Owners Corp. v 84-12 35th Ave. Apt. Corp., 91 AD3d 702, 703).

SKELOS, J.P., FLORIO, ROMAN and MILLER, JJ., concur.

ENTER: [*3]

Aprilanne Agostino

Clerk of the Court”

Matter of Orange County Dept. of Social Servs. v Germel Y.         2012-00891         2012 NY Slip Op 08746    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

REINALDO E. RIVERA, J.P.

MARK C. DILLON

SHERI S. ROMAN

JEFFREY A. COHEN, JJ.

2012-00891

(Docket Nos. P-554-08, F-554-08)

[*1]In the Matter of Orange County Department of Social Services, on behalf of Misty F.-R. (Anonymous), respondent,

v

Germel Y. (Anonymous), appellant. (Proceeding Nos. 1and 2)

Michael G. Paul, New City, N.Y., for appellant.

David L. Darwin, County Attorney, Goshen, N.Y. (Howard A.

Fields of counsel), for respondent.

DECISION & ORDER

In a paternity proceeding pursuant to Family Court Act article 5-B, and a related child support proceeding pursuant to Family Court Act article 4, Germel Y. appeals from an order of the Family Court, Orange County (Woods, J.), dated January 3, 2012, which denied his objections to an order of the same court (Patsalos, S.M.), dated September 21, 2011, which, after a hearing, denied his motions to vacate an order of filiation and an order of support, both entered June 23, 2008, upon his default in answering or appearing.

ORDERED that the order dated January 3, 2012, is affirmed, without costs or disbursements.

The Family Court’s denial of the appellant’s objections to the Support Magistrate’s order was proper. The Support Magistrate appropriately treated the appellant’s motions, which did not specify their precise statutory basis, as having been made pursuant to CPLR 5015(a)(1), inasmuch as they asserted that the appellant “”had no prior notice and had a reasonable excuse for his failure to appear and a meritorious defense”” to the petition, and sought “”an order restoring the matter to the Calendar”” (see CPLR 5015[a][1]; Electric Ins. Co. v Grajower, 256 AD2d 833, 833-834).

The Support Magistrate properly determined that the appellant’s motions to vacate two orders entered upon his default were untimely. The appellant failed to rebut the prima facie proof that the orders entered upon his default were served on him in 2008 (see Deutsche Bank Nat. Trust Co. v Matos, 77 AD3d 606, 607; Matter of Rodriguez v Wing, 251 AD2d 335, 336; cf. Segarra v Evans, 48 AD3d 543), and thus, his motions in 2011 to vacate those orders on the basis of excusable default were properly denied as untimely (see CPLR 5015[a][1]; Matter of Weintrob v Weintrob, 87 AD3d 749, 750).

The Support Magistrate also properly determined that the motions should be denied on the merits. A movant seeking to vacate a default pursuant to CPLR 5015(a)(1) must demonstrate both a reasonable excuse for the default and the existence of a potentially meritorious defense (see [*2]Matter of Martin v Cooper, 96 AD3d 849, 850; Matter of Proctor-Shields v Shields, 74 AD3d 1347, 1348). Contrary to the appellant’s contention, his conclusory and unsubstantiated denial of service of the underlying petition lacked the factual specificity necessary to rebut the prima facie proof of proper service established by the process server’s affidavit of service (see Indymac Fed. Bank FSB v Quattrochi, 99 AD3d 763; Countrywide Home Loans Servicing, LP v Albert, 78 AD3d 983, 984, 985; Scarano v Scarano, 63 AD3d 716; cf. Wells Fargo Bank, NA v Chaplin, 65 AD3d 588, 589; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343, 344). Therefore, he failed to establish a reasonable excuse for his default under CPLR 5015(a)(1). That failure mandated the denial of the appellant’s objections, and the underlying motions to vacate, without the need of reaching the issue of whether appellant had a potentially meritorious defense (see Matter of Martin v Cooper, 96 AD3d at 850; Matter of Proctor-Shields v Shields, 74 AD3d at 1348).

RIVERA, J.P., DILLON, ROMAN and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Papenhausen v Sudbrink         2011-10480         2012 NY Slip Op 08747    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

RANDALL T. ENG, P.J.

DANIEL D. ANGIOLILLO

SANDRA L. SGROI

SYLVIA HINDS-RADIX, JJ.

2011-10480

(Docket No. F-9346-03/11F)

[*1]In the Matter of Jill M. Papenhausen, respondent,

v

Michael Sudbrink, appellant.

Michael Sudbrink, Hicksville, N.Y., appellant pro se.

DECISION & ORDER

In a child support proceedingpursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Suffolk County (Hoffmann, J.), dated October 4, 2011, which denied his objections to an order of the same court (Joseph-Cherry, S.M.) dated July 18, 2011, which, after a hearing, granted the mother’s petition for an upward modification of his child support obligation.

ORDERED that the order dated October 4, 2011, is affirmed, without costs or disbursements.

The substantial increase in the father’s income, plus the mother’s evidence of specific increased expenses, warranted an upward modification of the father’s child support obligation (see Matter of Ryan v Levine, 80 AD3d 767). The Support Magistrate properly calculated the father’s child support obligation, using the income reported on his most recent tax return (see Domestic Relations Law § 240[1-b][b][5]; Hughes v Hughes, 79 AD3d 473, 475; Matter of Krukenkamp v Krukenkamp, 54 AD3d 345, 346). The father’s remaining contentions are without merit.

Accordingly, the Family Court properly denied the father’s objections to the Support Magistrate’s order.

ENG, P.J., ANGIOLILLO, SGROI and HINDS-RADIX, JJ., concur.

ENTER: [*2]

Aprilanne Agostino

Clerk of the Court”

Matter of Christina M.R. (Lynette Cassandra C.)                2012-00081         2012 NY Slip Op 08748    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

REINALDO E. RIVERA, J.P.

MARK C. DILLON

SHERI S. ROMAN

JEFFREY A. COHEN, JJ.

2012-00081

2012-00082

2012-00083

(Docket Nos. B-193-11, B-194-11, B-195-11)

[*1]In the Matter of Christina M. R. (Anonymous), also known as Christina R. (Anonymous), also known as Christina C. (Anonymous). SCO Family of Services, et al., petitioners-respondents;

and

Lynette Cassandra C. (Anonymous), also known as Lynette C. C. (Anonymous), also known as Lynette C. (Anonymous), appellant, et al., respondent. (Appeal No. 1)

In the Matter of Julie M. R. (Anonymous), also known as Julie R. (Anonymous), also known as Julie C. (Anonymous). SCO Family of Services, et al., petitioners-respondents;

and

Lynette Cassandra C. (Anonymous), also known as Lynette C. C. (Anonymous), also known as Lynette C. (Anonymous), appellant, et al., respondent. (Appeal No. 2)

In the Matter of Paula C. R. (Anonymous), also known as Paula R. (Anonymous), also known as Paula C. (Anonymous). SCO Family of Services, et al., petitioners-respondents;

and

Lynette Cassandra C. (Anonymous), also known as Lynette C. C. (Anonymous), also known as Lynette C. (Anonymous), appellant, et al., respondent. (Appeal No. 3) Frank Bruno, Jr., Glendale, N.Y., for appellant.

Carrieri & Carrieri, P.C., Mineola, N.Y. (Ralph R. Carrieri of

counsel), for petitioner SCO Family of Services.

Eric Perlmutter, Jamaica, N.Y., attorney for the children.

DECISION & ORDER

In three related proceedings pursuant to Social Services Law § 384-b, inter alia, to terminate parental rights on the ground of permanent neglect, the mother appeals, as limited by her brief, from so much of three orders of fact-finding and disposition (one as to each child) of the [*2]Family Court, Queens County (Richroath, J.), all dated November 16, 2011, as, after fact-finding and dispositional hearings, found that she permanently neglected the children, terminated her parental rights, and transferred custody and guardianship of the children to the Commissioner of Social Services of the City of New York and SCO Family of Services for the purpose of adoption.

ORDERED that the orders of fact-finding and disposition are affirmed insofar as appealed from, without costs or disbursements.

Contrary to the mother’s contention, the Family Court properly determined that the petitioner SCO Family of Services established, by clear and convincing evidence, that it made diligent efforts to encourage and strengthen the parental relationship by, among other things, facilitating regular visitation with the children and referring her to parenting classes and therapy programs (see Social Services Law § 384-b[7][a], [f]; Matter of Star Leslie W., 63 NY2d 136, 142; Matter of Dariana K. C. [Katherine M.], 99 AD3d 899, 901). Despite these efforts, the mother failed to plan for the future of the children by failing to consistently attend visitation and to complete a necessary parenting class and a therapy program (see Social Services Law § 384-b[7][c]; Matter of Joseph W. [Monica W.], 95 AD3d 1347, 1348; Matter of Beyonce H. [Baranaca H.], 85 AD3d 1168, 1169). Accordingly, the Family Court properly found that the mother permanently neglected the children.

Furthermore, the Family Court properly determined that it was in the best interests of the children to terminate the mother’s parental rights, thus freeing the children for adoption by their foster parent (see Matter of Star Leslie W., 63 NY2d at 147-148; Matter of Zechariah J. [Valrick J.], 84 AD3d 1087, 1088-1089, cert denied sub nom. Valrick J. v Orange County Dept. of Social Servs.,US, 133 S Ct 239; Matter of Amber D.C. [Angelica C.], 79 AD3d 865, 866).

RIVERA, J.P., DILLON, ROMAN and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Rokeach          2010-09309         2012 NY Slip Op 08749    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

PETER B. SKELOS, J.P.

THOMAS A. DICKERSON

LEONARD B. AUSTIN

ROBERT J. MILLER, JJ.

2010-09309

2010-09323

2011-00110

[*1]In the Matter of Elsie Rokeach, deceased. Sheila Berniker Seidenfeld, petitioner-appellant, Helene Zaltz, et al., respondents-respondents, Gary Rokeach, et al., respondents-appellants, et al., respondent. (File No. 128/07)

Jeffrey E. Michels, New York, N.Y., for petitioner-appellant.

Barry Seidel, Forest Hills, N.Y., for respondents-respondents

Helene Zaltz, Israel Zaltz, Lisa

Zaltz, and Tzippy Ostreicher.

Leonard R. Sperber, Garden City, N.Y., for respondents-

respondents Adelle Lawrence, Ira

Lawrence, David Lawrence, and

Robert Lawrence.

Michael L. Soshnick, Mineola, N.Y., for respondents-

appellants.

DECISION & ORDER

In a probate proceeding in which Sheila Berniker Seidenfeld, a coexecutor of the decedent’s estate, petitioned pursuant to SCPA 2103 to recover certain property on behalf of the decedent’s estate, the petitioner appeals from (1) an order of the Surrogate’s Court, Queens County (Nahman, S.), dated August 26, 2010, which, in effect, granted that branch of the motion of Adelle Lawrence and Ira Lawrence which was for summary judgment dismissing so much of the petition as sought to recover certain cash and securities insofar as asserted against them, in effect, granted that branch of the separate motion of Helene Zaltz and Israel Zaltz which was for summary judgment dismissing so much of the petition as sought to recover certain cash and securities and the proceeds from the sale of certain real property insofar as asserted against them, and denied her cross motion, in effect, joined in by Gary Rokeach and Michael Rokeach, for leave to file a second amended petition, (2) a second order of the same court, also dated August 26, 2010, which denied, as academic, her motion to compel Helene Zaltz and Israel Zaltz to comply with certain discovery demands, and (3) an order of the same court dated November 22, 2010, which denied her motion for leave to renew and reargue her opposition to those branches of the respective motions of Adelle Lawrence and Ira Lawrence, and Helene Zaltz and Israel Zaltz, which had been granted in the first order dated August 26, 2010, and Gary Rokeach and Michael Rokeach separately appeal from the first order dated August 26, 2010.

ORDERED that the orders dated August 26, 2010, are affirmed; and it is further,

ORDERED that the appeal from so much of the order dated November 22, 2010, as [*2]denied that branch of the petitioner’s motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order dated November 22, 2010, is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the respondents-respondents, payable by the petitioner-appellant and the respondents-appellants appearing separately and filing separate briefs.

The decedent, Elsie Rokeach, died on August 9, 2005. In 2009, Sheila Berniker Seidenfeld, a coexecutor of the decedent’s estate, petitioned pursuant to SCPA 2103 to recover certain property in which the decedent allegedly had an interest. Among other things, the petition specifically identified the proceeds from a sale of certain real property located in Brooklyn and certain cash and securities.

The petition alleged that the subject real property was sold in violation of a written agreement dated May 1986 (hereinafter the 1986 agreement) which was signed by the decedent, her children, including the petitioner and the respondents Helene Zaltz and Adelle Lawrence, and Israel Zaltz, Helene Zaltz’s husband. The petition further alleged that the decedent had deeded her interest in the subject real property and had effectuated the transfers of the subject cash and securities prior to her death, based on an understanding that these assets would, in effect, be held in trust for her so that she could qualify for initial or additional Medicaid benefits. The petition sought, inter alia, the imposition of a constructive trust on the subject real property and the subject cash and securities.

The respondents Adelle Lawrence and Ira Lawrence (hereinafter together the Lawrence respondents) moved, inter alia, for summary judgment dismissing so much of the petition as sought to recover the subject cash and securities insofar as asserted against them. The respondents Helene Zaltz and Israel Zaltz (hereinafter together the Zaltz respondents) separately moved, inter alia, for summary judgment dismissing so much of the petition as sought to recover the subject cash and securities and the proceeds from the sale of the subject real property insofar as asserted against them. The petitioner cross-moved, in effect, together with Gary Rokeach and Michael Rokeach, for leave to file a second amended petition, and separately moved to compel the Zaltz respondents to comply with certain discovery demands.

In an order dated August 26, 2010, the Surrogate’s Court, in effect, granted those branches of the separate motions of the Lawrence respondents and the Zaltz respondents which were for summary judgment, and denied the petitioner’s cross motion for leave to file a second amended petition. In a second order, also dated August 26, 2010, the court denied, as academic, the petitioner’s discovery motion.

The petitioner thereafter moved for leave to renew and reargue her opposition to those branches of the respective motions of the Lawrence respondents and the Zaltz respondents, which had been granted in the first order dated August 26, 2010. The Surrogate’s Court also denied this motion.

Pursuant to SCPA 2103, “”[a] fiduciary may present to the court which has jurisdiction over the estate a petition showing . . . that any property . . . or the proceeds or value thereof which should be paid or delivered to him is . . . in the possession or control of a person who withholds it from him, whether possession or control was obtained prior to creation of the estate or subsequent thereto”” (SCPA 2103[1][a]). “”Property,”” as used in this section, is defined to “”include any and all personal or real property in which decedent had any interest, including choses in action”” (SCPA 2103[2]).

Here, the moving respondents demonstrated that the cash and securities identified in the petition were validly transferred in 1996 and 1997, by personal checks made out by the decedent and identified as “”gifts.”” The Zaltz respondents also demonstrated that the decedent transferred her [*3]remaining interest in the subject real property by deed dated July 6, 2000, and the petitioner concedes, in the petition, that she was aware of this transfer by “”early 2002.”” These submissions were sufficient to demonstrate, prima facie, that the decedent did not possess any interest in either the subject real property or the cash and securities identified in the petition (cf. SCPA 2103[1][a]). Moreover, in response to the petitioner’s contention that the transfer of the subject real property, which was effected by the decedent, was made in violation of the 1986 agreement, the moving respondents demonstrated that such a claim would be time-barred. The statute of limitations for a proceeding pursuant to SCPA 2103 is governed by the Civil Practice Law and Rules (see SCPA 102). Accordingly, to the extent the petition alleges that the 1986 agreement was breached by the transfer which occurred in 2000, any such cause of action is barred by the six-year statute of limitations applicable to actions alleging breach of contract (see CPLR 213[2]; Goco v Ramnani, 65 AD3d 664, 665; see also Matter of Kraus, 208 AD2d 728, 729). Any attempt to seek the turnover of assets based on quasi-contractual theories relating to this transfer is similarly barred (see e.g. Chi Kee Pang v Synlyco, Ltd., 89 AD3d 976). Accordingly, the moving respondents established, prima facie, that they were entitled to judgment as a matter of law, as sought in their respective motions.

In opposition, the petitioner failed to raise a triable issue of fact.

The petitioner further contends that the petition may also be construed as seeking the turnover of assets based on theories of fraud, conversion, and constructive trust. These theories are premised on the statements in the petition which allege that the petitioner “”became aware”” that the decedent had only transferred her interest in the subject real property and the subject cash and securities based on the understanding that those assets would, in effect, be held in trust for her so that she could qualify for initial or additional Medicaid benefits. This conclusory assertion, which is contradicted by the evidence, is also insufficient to raise a triable issue of fact in response to the moving respondents’ prima facie showing of entitlement to judgment as a matter of law (see Matter of Noble, 31 AD3d 643, 645; see also Moramarco v Ruggiero, 55 AD3d 694, 695; Doria v Masucci, 230 AD2d 764, 765-766).

Finally, to the extent that the petitioner cites to various assertions in the petition which relate to alleged promises and representations made by the moving respondents to her personally, they cannot form the bases of causes of action which may be maintained on behalf of the decedent, and are insufficient to raise a triable issue of fact as to whether the moving respondents are in possession of property in which the decedent had an interest (cf. SCPA 2103[1][a]).

Accordingly, the Surrogate’s Court properly, in effect, granted those branches of the separate motions of the Lawrence respondents and the Zaltz respondents which were for summary judgment, and properly denied that branch of the petitioner’s motion which was for leave to renew her opposition to those branches of those motions. Moreover, under the circumstances of this case, the Surrogate’s Court properly denied the petitioner’s cross motion, in effect, joined in by Gary Rokeach and Michael Rokeach, for leave to file a second amended petition. Although leave to amend a pleading is to be freely granted, leave should be denied where, as here, the proposed amendment is palpably insufficient or patently devoid of merit (see CPLR 3025[b]; Staskowski v Nassau Community Coll., 53 AD3d 611, 612).

The appellants’ remaining contentions are either without merit or not properly before this Court.

SKELOS, J.P., DICKERSON, AUSTIN and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Santer v Board of Educ. of E. Meadow Union Free Sch. Dist.    2010-11006         2012 NY Slip Op 08750    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

RUTH C. BALKIN, J.P.

CHERYL E. CHAMBERS

L. PRISCILLA HALL

SANDRA L. SGROI, JJ.

2010-11006

(Index No. 1997/10)

[*1]In the Matter of Richard Santer, appellant,

v

Board of Education of East Meadow Union Free School District, respondent.

Richard E. Casagrande, New York, N.Y. (Melinda G. Gordon of

counsel), for appellant.

Littler Mendelson, P.C., New York, N.Y. (Craig R. Benson,

George B. Pauta, and Ethan D. Balsam

of counsel), for respondent.

DECISION & ORDER

In a proceeding pursuant to CPLR article 75 to vacate an arbitration award dated January 8, 2010, made in connection with a compulsory arbitration pursuant to Education Law § 3020-a, which, after a hearing, sustained a charge of misconduct against the petitioner and imposed a fine against the petitioner in the sum of $500, the petitioner appeals from an order of the Supreme Court, Nassau County (Cozzens, Jr., J.), dated October 7, 2010, which denied the petition.

ORDERED that the order is reversed, on the law, with costs, the petition is granted, and the award is vacated.

During the 2006-2007 school year, the Board of Education of the East Meadow Union Free School District (hereinafter the District) and the District’s teachers’ union were engaged in negotiations on a new collective bargaining agreement. As negotiations continued without an agreement, teachers engaged in concerted actions, including weekly picketing in front of the Woodland Middle School (hereinafter Woodland) when students were being dropped off. Woodland encompasses the sixth through eighth grades, and its students generally are between 11 and 14 years old. On March 2, 2007, it was raining, so some of the teachers decided that, rather than stand outside of the building to picket, they would park their cars along nearby Wenwood Drive and display their signs in their car windows. Wenwood Drive, a two-way street, was one of several locations where parents would drop off their children. The petitioner, Richard Santer, the union’s building president at Woodland, participated in this protest. Beginning at 7:25 A.M., approximately 8 teachers parked their cars, in legal parking spaces, along either side of Wenwood Drive, with 15 to 16 teachers participating in total. None of the teachers’ cars blocked either of two curb cuts in front of the school. According to the school principal, the parking activity caused traffic to become extremely congested, and some children were dropped off in the street and had to cross traffic lanes to reach the sidewalk. No school official asked the teachers to move their cars during the protest, and no child was injured.

The District preferred a disciplinary charge pursuant to Education Law § 3020-a against Santer, a tenured teacher, alleging that he [*2]

“”intentionally created a health and safety risk by purposely situating his vehicle alongside the curb of Wenwood Drive in front of the Woodland Middle School in order to preclude children from being dropped off at curbside. The action resulted in children being dropped off in the middle of the street which resulted in an otherwise avoidable and unnecessary health and safety hazard.””

At the ensuing arbitration hearing, the petitioner argued, inter alia, that he had a constitutionally protected right to peacefully picket in a public area before the beginning of the school day. The arbitrator rejected this argument, found the petitioner to be culpable of the charge of creating a health and safety hazard, and directed that he pay a fine in the sum of $500. The petitioner commenced this proceeding challenging the arbitration award. The Supreme Court confirmed the finding of misconduct, and denied the petition. The petitioner appeals.

Where, as here, arbitration is statutorily required, “”judicial review under CPLR article 75 is broad, requiring that the award be in accord with due process and supported by adequate evidence in the record”” (Motor Veh. Mfrs. Assn. of U.S. v State of New York, 75 NY2d 175, 186). “”Due process of law requires . . . that the [arbitrator’s determination] under the power conferred by statute have a basis not only in his [or her] good faith, but in law and the record before him [or her]”” (Mount St. Mary’s Hosp. of Niagara Falls v Catherwood, 26 NY2d 493, 507). The award must be rational and not arbitrary and capricious (id.; see Matter of City of Buffalo v Rinaldo, 41 NY2d 764, 765-767). Here, evidence that children were dropped off in the middle of the street due to the arrangement of the cars provided a rational basis for the arbitrator’s determination that Santer contributed to the creation of a health and safety hazard, and the award was not arbitrary and capricious, as we held in another matter concerning the same protest (see Matter of Trupiano v Board of Educ. of E. Meadow Union Free School Dist., 89 AD3d 1030).

The petitioner here, however, raises an argument that the petitioner in Trupiano did not raise in our Court, specifically, that the disciplinary proceeding commenced against him, and the discipline ultimately imposed, violated his right to free speech under the First Amendment to the United States Constitution. Like other public employees, teachers “”do not leave their First Amendment rights at the schoolhouse door, even though it is plain that those rights are somewhat diminished in public employment”” (Melzer v Board of Educ. of City School Dist. of City of New York, 336 F3d 185, 192, cert denied 540 US 1183). In determining whether a disciplinary measure taken against a public employee violates the employee’s First Amendment rights, a court must first determine whether the speech that led to the discipline related to a matter of public concern. If so, the court must balance free-speech principles against the threat to effective government operation presented by that speech (see Pickering v Board of Educ. of Township High School Dist. 205, Will Cty., 391 US 563; Melzer v Board of Educ. of City School Dist. of City of New York, 336 F3d at 193; Rankin v McPherson, 483 US 378, 384-388). The government bears the burden of showing that the disciplinary measure is justified (see United States v Treasury Employees, 513 US 454, 466; Rankin v McPherson, 483 US at 388; Melzer v Board of Educ. of City School Dist. of City of New York, 336 F3d at 193).

Santer’s “”speech”” regarding collective bargaining issues indisputably addressed matters of public concern (see Clue v Johnson, 179 F3d 57, 61; Boals v Gray, 775 F2d 686, 693). Moreover, despite the evidence establishing that the manner in which the protest was carried out interfered with the safe and effective drop-off of students (see Matter of Trupiano v Board of Educ. of E. Meadow Union Free School Dist., 89 AD3d 1030), we find that the District failed to meet its burden of demonstrating that Santer’s exercise of his First Amendment rights so threatened the school’s effective operation as to justify the imposition of discipline (see Rothschild v Board of Educ. of City of Buffalo, 778 F Supp 642, 656). Significantly, Santer did not violate any law or school policy. In parking his car on Wenwood Drive and moving it prior to 8:00 A.M., Santer fully complied with the applicable parking regulation. Had other members of the public parked their cars along Wenwood Drive in this manner, the District would have had no recourse, because such parking was entirely legal. If the municipality in which Woodland is located believed that it was unsafe for cars to park along Wenwood Drive during the time when parents dropped off their children at the school, it could have prohibited parking during the relevant time periods, but it did not do so. [*3]Moreover, no school official asked the teachers to move their cars during the protest, and no student was injured as a result of the protest. Consequently, the record establishes that the danger presented by the legally parking teachers could not have been substantial. Under these circumstances, we conclude that the District failed to demonstrate that Santer’s legal speech so threatened the effective operation of the school that discipline of him was justified (cf. Melzer v Board of Educ. of City School Dist. of City of New York, 336 F3d at 198).

The Supreme Court of the United States has stated that “”[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools”” (Shelton v Tucker, 364 US 479, 487). The disciplinary measures imposed on Santer would likely have the effect of chilling speech on an important matter of public concern—the negotiation of a collective bargaining agreement.

BALKIN, J.P., CHAMBERS, HALL and SGROI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Seniors for Safety v New York City Dept. of Transp.     2011-09557         2012 NY Slip Op 08751    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

REINALDO E. RIVERA, J.P.

MARK C. DILLON

JOHN M. LEVENTHAL

CHERYL E. CHAMBERS, JJ.

2011-09557

(Index No. 5210/11)

[*1]In the Matter of Seniors for Safety, etc., et al., appellants,

v

New York City Department of Transportation, et al., respondents.

Gibson, Dunn & Crutcher LLP, New York, N.Y. (Jim Walden,

Georgia Winston, and Randy Mastro of counsel), for appellants.

Michael A. Cardozo, Corporation Counsel, New York, N.Y.

(Francis F. Caputo, Mark W.

Muschenheim, and Susan Paulson of

counsel), for respondents.

DECISION & ORDER

In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of the New York City Department of Transportation to develop and construct, among other things, a bicycle lane on a public street, the petitioners appeal, as limited by their notice of appeal and brief, from so much of an order and judgment (one paper) of the Supreme Court, Kings County (Bunyan, J.), entered August 16, 2011, as denied, as academic, that branch of their motion which was pursuant to CPLR 408 for leave to conduct limited discovery on the issue of whether the challenged project was initially installed on a trial basis and dismissed, as time-barred, those branches of the amended petition which were to annul the determination or compel further administrative action.

ORDERED that the order and judgment is modified, on the law, (1) by deleting the provision thereof dismissing the first cause of action in the amended petition, and (2) by deleting the provision thereof denying, as academic, that branch of the petitioners’ motion which was pursuant to CPLR 408 for leave to conduct limited discovery on the issue of whether the challenged project was intitially installed on a trial basis; as so modified, the order and judgment is affirmed insofar as appealed from, without costs or disbursements, the first cause of action in the amended petition is reinstated and severed, and the matter is remitted to the Supreme Court, Kings County, for a determination on the merits of that branch of the petitioners’ motion which was pursuant to CPLR 408 for leave to conduct limited discovery on the issue of whether the challenged project was initially installed on a trial basis, for a hearing and a new determination thereafter on the issue of whether the first cause of action is time-barred, and for further proceedings on that cause of action if warranted.

Prospect Park West (hereinafter PPW) is a one-way, north-south street in Brooklyn, bordered by Prospect Park to the east and residential and commercial buildings to the west. This matter involves a project by the New York City Department of Transportation (hereinafter the NYCDOT) which, in sum, reduced the total number of travel lanes for motor vehicle traffic on PPW from three to two, and added a dedicated two-way bicycle path separated from motor vehicle traffic [*2]by a buffer zone and a parking lane. Prior to the implementation of the project at issue, PPW consisted of five lanes for motor vehicle traffic; the easternmost and westernmost lanes were dedicated parking lanes and the three central lanes were dedicated to moving vehicular traffic. The project was designed in response to, inter alia, a request in 2007 by Brooklyn Community Board 6 to the NYCDOT to “”study traffic calming measures on PPW, including the possible installation of a one-way or two-way Class I bicycle path on the eastside of PPW.””

The NYCDOT has established three “”classes”” of bicycle lanes: (1) “”bicycle paths,”” which are separated from motor vehicle traffic (referred to as Class I bicycle paths), (2) “”bicycle lanes,”” which are directly adjacent to motor vehicle traffic (Class II bicycle lanes), and (3) “”bicycle routes,”” which share the lane with motor vehicles. The proposed project was the subject of numerous public meetings, and modifications to the plans were made by the NYCDOT in response to community feedback. The project was ultimately implemented in June 2010, and consisted of the following primary features: the parking lane from the eastern side of PPW was shifted away from the curb, eliminating one of the three lanes formerly dedicated to motor vehicle traffic; in the space created between the new parking lane and the easterly curb, the NYCDOT installed a two-way Class I bicycle path separated from the new parking lane by a painted buffer zone; the NYCDOT also made corresponding changes to traffic signals and signage on the street to reflect the new layout.

By all accounts, the bicycle path was installed in June 2010. It is undisputed that the NYCDOT, through NYCDOT Commissioner Janette Sadik-Khan and other representatives, publicly promised to “”monitor the effects of the Prospect Park West project on safety and traffic flow for six months”” and to present those findings to the public at the end of the “”study period.”” The parties sharply dispute the purpose of that postconstruction study, the final results of which were released on January 20, 2011, at a meeting of the Brooklyn Community Board 6 Transportation Committee.

On March 7, 2011, the petitioners commenced this proceeding pursuant to CPLR article 78, inter alia, challenging the NYCDOT’s determination to implement the project. The petitioners asserted four causes of action relating to the construction of the bicycle path; the first cause of action alleged that the determination to implement the project and make it permanent was arbitrary and capricious, the second cause of action alleged that the project failed to undergo review by the New York City Landmarks Preservation Commission, and the third and fourth causes of action alleged violations of the State Environmental Quality Review Act (ECL article 8; hereinafter SEQRA) and the City Environmental Quality Review rules (62 RCNY 5-01 et seq.; hereinafter CEQR). The NYCDOT pleaded in its answer that the four causes of action challenging the construction of a bicycle path were barred by the applicable statute of limitations. The Supreme Court agreed with the NYCDOT and, based upon this affirmative defense, dismissed the proceeding.

A proceeding pursuant to CPLR article 78 “”must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner”” (CPLR 217[1]). “”A determination becomes final and binding’ when two requirements are met; namely, completeness (finality) of the determination, and the exhaustion of administrative remedies”” (Matter of Brown v New York State Racing & Wagering Bd., 60 AD3d 107, 112, quoting Walton v New York State Dept. of Correctional Servs., 8 NY3d 186, 194 [internal quotation marks omitted]). The party challenging the timeliness of a proceeding, in this case the NYCDOT, bears the burden of establishing that the applicable statute of limitations bars the proceeding (see Matter of Brown v New York State Racing & Wagering Bd., 60 AD3d at 113; see also Matter of Bill’s Towing Serv., Inc. v County of Nassau, 83 AD3d 698, 699).

Here, the NYCDOT established, prima facie, that the project was never publicized or intended to be implemented solely on a trial basis, and that its determination to construct the bicycle path became final and binding, at the latest, in June 2010 (see Matter of Agoglia v Benepe, 84 AD3d 1072, 1075). However, in opposition, the petitioners raised an issue of fact as to whether the project was initially intended to be implemented solely on a trial basis by submitting, inter alia, the affidavit of Brooklyn Borough President Marty Markowitz, asserting that NYCDOT Commissioner Sadik-Khan told him, at a meeting on March 1, 2010, that “”the PPW bike lane would be implemented on a trial basis”” and that “”any decision to finalize the PPW bike lane”” would be [*3]based on data collected during a postconstruction study (see Macaluso v Del Col, 95 AD3d 959, 960; cf. Baptiste v Harding-Marin, 88 AD3d 752, 753). The petitioners also submitted other evidence which, although not conclusive in and of itself, corroborates their contention that the determination to make the project “”final and binding”” was deferred by the NYCDOT until the end of the study period in January 2011. Commissioner Sadik-Khan disputed Markowitz’s claims in her own affidavit, asserting that, at that meeting, neither she nor any member of her staff stated that the project would be implemented on a trial basis. Sadik-Khan also averred that the promised postconstruction monitoring was something that is undertaken for all NYCDOT projects, but was not intended to mean that the project was being implemented on a trial basis.

Based on the foregoing, the Supreme Court erred in holding that the first cause of action was barred by the statute of limitations, without first conducting a factual hearing to resolve disputed issues of fact relating to that issue (see CPLR 7804[h]). Accordingly, we remit the matter to the Supreme Court, Kings County, for a factual hearing and a new determination thereafter on the issue of whether the first cause of action is time-barred, and for further proceedings on that cause of action in the event it is determined to be timely. Prior to the factual hearing, the petitioners are entitled to a determination on the merits of that branch of their motion which was for leave to conduct limited discovery (see CPLR 408) regarding whether the project was initially installed on a trial basis.

With respect to the second, third, and fourth causes of action, we agree with the Supreme Court that they were time-barred. The four-month statute of limitations for challenging noncompliance with SEQRA and CEQR regulations is “”triggered when the [agency] commit[s] itself to a definite course of future decisions'”” (Matter of Young v Board of Trustees of Vil. of Blasdell, 89 NY2d 846, 848-849, quoting 6 NYCRR 617.2[b][2]; see 6 NYCRR 617.2[b][3]; Lighthouse Hill Civic Assn v City of New York, 275 AD2d 322, 324). Even if we accept the petitioners’ contentions that the NYCDOT deferred the decision to make the project final until the end of the study period, the statute of limitations for SEQRA and CEQR challenges was triggered, at the latest, in June 2010 when the bicycle path was installed, since the NYCDOT had by then committed itself to a definite course of future decisions. Likewise, the cause of action alleging a failure to refer the project to the New York City Landmarks Preservation Commission is similarly time-barred, since any injury resulting from the failure to do so would have fully ripened when the bicycle path was installed (see generally Matter of Douglaston & Little Neck Coalition v Sexton, 145 AD2d 480, 480-481).

RIVERA, J.P., DILLON, LEVENTHAL and CHAMBERS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Smith v Amedee          2011-10984         2012 NY Slip Op 08752    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

WILLIAM F. MASTRO, J.P.

DANIEL D. ANGIOLILLO

SANDRA L. SGROI

ROBERT J. MILLER, JJ.

2011-10984

(Docket No. O-11632-10)

[*1]In the Matter of Mia Smith, respondent,

v

Franck Amedee, appellant. Placidus Aguwa, Jamaica, N.Y., for appellant. Elliot Green, Brooklyn, N.Y., for respondent.

DECISION & ORDER

In a family offense proceeding pursuant to Family Court Act article 8, Franck Amedee appeals from an order of protection of the Family Court, Queens County (Fitzmaurice, J.), dated November 2, 2011, which, after a hearing, and upon a finding that he had committed the family offenses of disorderly conduct, reckless endangerment in the second degree, and harassment in the second degree, directed him, inter alia, to stay away from the petitioner until and including November 2, 2013.

ORDERED that the order is affirmed, without costs or disbursements.

“”The determination of whether a family offense was committed is a factual issue to be resolved by the hearing court”” (Matter of Creighton v Whitmore, 71 AD3d 1141, 1141; see Family Ct Act §§ 812, 832; Matter of Kaur v Singh, 73 AD3d 1178), “”and that court’s determination regarding the credibility of witnesses is entitled to considerable deference on appeal”” (Matter of Cruz v Rodriguez, 96 AD3d 838, 838; see Matter of Kaur v Singh, 73 AD3d at 1178; Matter of Creighton v Whitmore, 71 AD3d at 1141). Contrary to the appellant’s contention, a fair preponderance of the credible evidence supported the Family Court’s determination that he committed acts which constituted the family offenses of disorderly conduct (see Penal Law § 240.20[1]; Family Ct Act § 812[1]; Matter of Pearlman v Pearlman, 78 AD3d 711), reckless endangerment in the second degree (see Penal Law § 120.20; Family Ct Act § 812[1]; Matter of Knibbs v Zeman, 86 AD3d 568), and harassment in the second degree (see Penal Law § 240.26[1]; Family Ct Act § 812[1]; Matter of Kaur v Singh, 73 AD3d at 1178), warranting the issuance of an order of protection.

The appellant’s remaining contentions are either without merit or not properly before this Court.

MASTRO, J.P., ANGIOLILLO, SGROI and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of 24 Franklin Ave. R.E. Corp. v Heaship  2011-03112         2012 NY Slip Op 08753    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

ANITA R. FLORIO, J.P.

RUTH C. BALKIN

L. PRISCILLA HALL

ROBERT J. MILLER, JJ.

2011-03112

(Index No. 24531/07)

[*1]In the Matter of 24 Franklin Ave. R.E. Corp., et al., respondents,

v

Thomas Heaship, et al., appellants.

Joseph A. Maria, P.C., White Plains, N.Y., for appellants.

Joseph C. Messina, Mamaroneck, N.Y., for respondents.

DECISION & ORDER

In a hybrid proceeding pursuant to CPLR article 78 and action for a judgment, inter alia, declaring invalid Local Law No. 4 (2007) of the Town/Village of Harrison, the respondents/defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered February 24, 2011, as granted that branch of the petitioners/plaintiffs’ motion which, in effect, sought to vacate the eighth demand contained in their demand for a verified bill of particulars.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the petitioners/plaintiffs’ motion which, in effect, sought to vacate the eighth demand contained in the respondents/defendants’ demand for a verified bill of particulars is denied, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings consistent herewith.

Marc Castaldi and 24 Franklin Ave. R.E. Corp. (hereinafter together the property owners) commenced this hybrid proceeding pursuant to CPLR article 78 and action for a judgment against Thomas Heaship, Alice Aurutick, Anthony Spano, Raymond A. Kraus, Nonie Reich, Marshall Donat, Mark Rinaldi, Stephen Malfitano, Joseph Cannella, Robert Paladino, Thomas Scappaticci, Pat Vetere, Stephen Malfitano, and Robert W. Fitzsimmons (hereinafter collectively the appellants), inter alia, declaring invalid Local Law No. 4 (2007) of the Town/Village of Harrison (hereinafter LL No. 4). Thereafter, the Supreme Court utilized a summary procedure to determine the merits of the causes of action which sought a judgment declaring that LL No. 4 was not adopted in accordance with the relevant comprehensive plan, that it was not adopted in accordance with the State Environmental Quality Review Act (ECL article 8; hereinafter SEQRA), that it was not adopted in accordance with the requirements of General Municipal Law § 239-m, and that it was not adopted in accordance with the notice requirements of Town Law § 264.

The Supreme Court awarded the property owners judgment, in effect, declaring that LL No. 4 is invalid on the grounds that it constitutes impermissible spot zoning and was not adopted in accordance with the relevant comprehensive plan. The judgment also, inter alia, dismissed the CPLR article 78 petition on the ground that the property owners failed to exhaust their administrative [*2]remedies and because the determination of which they sought review was advisory and therefore not subject to article 78 review.

The appellants appealed from so much of the judgment as, in effect, declared that LL No. 4 is invalid on the grounds that it constitutes impermissible spot zoning and was not adopted in accordance with the relevant comprehensive plan. The appellants’ appeal was limited, as they did not seek review of those portions of the judgment which dismissed the CPLR article 78 petition.

This Court reversed the judgment insofar as appealed from, concluding that “”the causes of action seeking a judgment declaring that LL No. 4 is invalid are properly deemed causes of action for a declaratory judgment, rather than for relief pursuant to CPLR article 78″” and that “”the Supreme Court erred in issuing a judgment declaring that LL No. 4 is invalid by using a summary procedure that pertains only to CPLR article 78 proceedings”” (Matter of 24 Franklin Ave. R.E. Corp. v Heaship, 74 AD3d 980, 980-981). Accordingly, this Court remitted the matter to the Supreme Court, Westchester County, “”for further proceedings on the causes of action for a declaratory judgment, in which those causes of action shall be treated as if they had been asserted in a plenary action”” (id. at 981). That decision and order remitted to the Supreme Court all of the property owners’ declaratory judgment causes of action which had been determined on the merits by the Supreme Court utilizing the improper summary procedure, to wit, the causes of action which sought a judgment declaring that LL No. 4 was not adopted in accordance with the relevant comprehensive plan, was not adopted in accordance with SEQRA, was not adopted in accordance with the requirements of General Municipal Law § 239-m, and was not adopted in accordance with the notice requirements of Town Law § 264.

On remittal, the Supreme Court erred in granting that branch of the property owners’ motion which, in effect, sought to vacate the eighth demand of the appellants’ demand for a verified bill of particulars which pertained to the property owners’ cause of action for a judgment declaring invalid LL No. 4 on the grounds that it was not adopted in accordance with SEQRA. Since this Court reversed the judgment insofar as appealed from and remitted to the Supreme Court the causes of action which sought a judgment declaring that LL No. 4 was not adopted in accordance with the relevant comprehensive plan, was not adopted in accordance with SEQRA, was not adopted in accordance with the requirements of General Municipal Law § 239-m, and was not adopted in accordance with the notice requirements of Town Law § 264, the Supreme Court erred in finding that the appellants were not entitled to particulars as to the property owners’ cause of action for a judgment declaring LL No. 4 invalid based on the appellants’ alleged failure to comply with SEQRA requirements (see CPLR 3101[a]).

Furthermore, an “”appellate court’s resolution of an issue on a prior appeal constitutes the law of the case and is binding on the Supreme Court, as well as on the appellate court”” (J-Mar Serv. Ctr., Inc. v Mahoney, Connor & Hussey, 45 AD3d 809, 809; see Quinn v Hillside Dev. Corp., 21 AD3d 406, 407; Matter of Oak St. Mgt., Inc., 20 AD3d 571; Johnson v Incorporated Vil. of Freeport, 288 AD2d 269). The law of the case doctrine forecloses re-examination of a question previously determined by an appellate court in the same action, “” absent a showing of subsequent evidence or change of law'”” (J-Mar Serv. Ctr., Inc. v Mahoney, Connor & Hussey, 45 AD3d at 809, quoting Matter of Yeampierre v Gutman, 57 AD2d 898, 899; see Matter of Haberman v Zoning Bd. of Appeals of City of Long Beach, 94 AD3d 997), or “”extraordinary circumstances . . . warrant[ing] a departure from the law of the case”” (Carole A. v City of New York, 169 AD2d 800, 801; see Quinn v Hillside Dev. Corp., 21 AD3d at 407). Here, the property owners did not show that such circumstances exist.

FLORIO, J.P., BALKIN, HALL and MILLER, JJ., concur.

ENTER: [*3]

Aprilanne Agostino

Clerk of the Court”

Matter of Willnus             2011-03467         2012 NY Slip Op 08754    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

PETER B. SKELOS, J.P.

L. PRISCILLA HALL

LEONARD B. AUSTIN

SYLVIA HINDS-RADIX, JJ.

2011-03467

2011-07007

[*1]In the Matter of Marion Cartwright Willnus, deceased. Lisa Kyle, et al., appellants; Thomas Maguire, et al., respondents. (File No. 3667/09)

Marisa Falero, Brooklyn, N.Y., for appellants.

George Magriples, Astoria, N.Y., for respondents.

DECISION & ORDER

In a proceeding, inter alia, pursuant to SCPA 702 to obtain limited letters of administration for the estate of Marion Cartwright Willnus, the petitioners appeal (1), as limited by their brief, from so much of an order of the Surrogate’s Court, Kings County (Lopez Torres, S.), dated March 1, 2011, as granted that branch of the motion of Thomas Maguire and Steven Maguire which was to dismiss the petition pursuant to CPLR 3211(a)(4), and (2) from an order of the same court dated June 17, 2011, which denied their motion for leave to reargue and renew their opposition to that branch of the motion of Thomas Maguire and Steven Maguire which was to dismiss the petition pursuant to CPLR 3211(a)(4).

ORDERED that the appeal from so much of the order dated June 17, 2011, as denied that branch of the petitioners’ motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument (see Matter of Braver v Silberman, 90 AD3d 654, 656); and it is further,

ORDERED that the order dated March 1, 2011, is affirmed insofar as appealed from; and it is further,

ORDERED that the order dated June 17, 2011, is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the respondents.

Pursuant to CPLR 3211(a)(4), a court has broad discretion in determining whether an action should be dismissed on the ground that there is another action pending (see Whitney v Whitney, 57 NY2d 731, 732; DAIJ, Inc. v Roth, 85 AD3d 959, 959), and may dismiss an action where there is a substantial identity of the parties and causes of action (see Cherico, Cherico & Assoc. v Midollo, 67 AD3d 622, 622; Simonetti v Larson, 44 AD3d 1028, 1028). It is not necessary that the precise legal theories presented in the first action also be presented in the second action; rather, it is sufficient if the relief sought is “”the same or substantially the same”” (Kent Dev. Co. v [*2]Liccione, 37 NY2d 899, 901; see Cherico, Cherico & Assoc. v Midollo, 67 AD3d at 622; Simonetti v Larson, 44 AD3d at 1029). “”The critical element is that both suits arise out of the same subject matter or series of alleged wrongs”” (Cherico, Cherico & Assoc. v Midollo, 67 AD3d at 622 [internal quotation marks omitted]; see Kent Dev. Co. v Liccione, 37 NY2d at 901; Simonetti v Larson, 44 AD3d at 1029).

Here, the Surrogate’s Court providently exercised its discretion in granting that branch of the motion of the respondents Thomas Maguire and Steven Maguire (hereinafter together the respondents) which was to dismiss the petition pursuant to CPLR 3211(a)(4). The relief sought by the petitioners in this Surrogate’s Court proceeding and a pending guardianship proceeding they had previously commenced in the Supreme Court was substantially the same, namely, a return of the decedent’s assets to a family trust, of which the petitioners were residuary beneficiaries (see Simonetti v Larson, 44 AD3d at 1029). In addition, both proceedings arose out of the same allegations of wrongdoing on the part of the respondents in handling the decedent’s financial affairs, and there was substantial identity of parties in each proceeding.

The Surrogate’s Court properly denied that branch of the petitioners’ motion which was for leave to renew their opposition to that branch of the respondents’ motion which was to dismiss the petition pursuant to CPLR 3211(a)(4), since the new facts offered on the motion would not have changed the prior determination (see CPLR 2221[e][2]; Grossman v New York Life Ins. Co., 90 AD3d 990, 992).

The petitioners’ remaining contentions are either not properly before this Court or without merit.

SKELOS, J.P., HALL, AUSTIN and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Anderson         2009-03513         2012 NY Slip Op 08755    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

PETER B. SKELOS, J.P.

ANITA R. FLORIO

L. PRISCILLA HALL

SHERI S. ROMAN, JJ.

2009-03513

(Ind. No. 1669/07)

[*1]The People of the State of New York, respondent,

v

Robert Anderson, appellant.

Alexander M. Dudelson, Brooklyn, N.Y., for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael

J. Miller of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Suffolk County (Hudson, J.), rendered March 20, 2009, convicting him of murder in the second degree and criminal contempt in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of the defendant’s omnibus motion which were to suppress physical evidence and his statements to law enforcement officials.

ORDERED that the judgment is affirmed.

Contrary to the defendant’s contention, the People established at the suppression hearing that the police had probable cause to arrest him, based on information provided by a witness (see People v Nealy, 32 AD3d 400, 401; People v Banks, 208 AD2d 759, 759-760).

The County Court correctly denied the defendant’s request to charge manslaughter in the first degree and manslaughter in the second degree as lesser-included offenses of murder in the second degree. Viewing the evidence in the light most favorable to the defendant (see People v Martin, 59 NY2d 704), we find that there was no reasonable view of the evidence to support a finding that he intended to cause serious physical injury to the victim rather than kill her (see Penal Law § 125.20[1]; People v Butler, 84 NY2d 627, 633-634; People v Sostre, 70 AD3d 865), or that he acted recklessly in repeatedly shooting the victim (see Penal Law § 125.15[1]; People v Walston, 97 AD3d 609, 610; People v Spina, 275 AD2d 902, 904; People v Etienne, 250 AD2d 776).

Furthermore, the County Court properly refused to charge the affirmative defense of extreme emotional disturbance. The defendant’s behavior “” immediately before and after the killing was inconsistent with the loss of control associated with the affirmative defense'”” (People v Trovato, 68 AD3d 1023, 1024, quoting People v Murden, 190 AD2d 822, 822; see People v Lynch, 92 AD3d 805, 806). The defendant failed to establish both the subjective and objective elements of the defense of extreme emotional disturbance (see People v Smith, 1 NY3d 610, 612; People v Roche, 98 NY2d 70, 75-77; People v Trovato, 68 AD3d at 1024).

SKELOS, J.P., FLORIO, HALL and ROMAN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Andujar             2009-06561         2012 NY Slip Op 08756    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

ANITA R. FLORIO, J.P.

JOHN M. LEVENTHAL

LEONARD B. AUSTIN

JEFFREY A. COHEN, JJ.

2009-06561

(Ind. No. 1124/06)

[*1]The People of the State of New York, respondent,

v

Jonathan Andujar, appellant.

Steven Banks, New York, N.Y. (Svetlana M. Kornfeind of

counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John

M. Castellano, Nicoletta J. Caferri, and

Jennifer Hagan of counsel), for

respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.), rendered June 11, 2009, convicting him of manslaughter in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law, and a new trial is ordered.

In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9 NY3d 342, 348), we nevertheless accord great deference to the factfinder’s opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410, cert denied 542 US 946; People v Bleakley, 69 NY2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633).

However, over the defendant’s objection, the trial court allowed the prosecutor to elicit, from a detective, the statement of a nontestifying codefendant that the defendant was in the codefendant’s vehicle on the night of the incident. As the People correctly concede, this violated the defendant’s right of confrontation, secured to him by the Sixth Amendment to the United States Constitution (see Crawford v Washington, 541 US 36, 52; see also Richardson v Marsh, 481 US 200, 206; Davis v Washington, 547 US 813, 822). This error was compounded when, on summation, the prosecutor argued that the codefendant’s statement established the defendant’s presence at the scene of the incident. Since the remaining evidence establishing the defendant’s identity as one of the assailants was not overwhelming, the error cannot be deemed harmless beyond a reasonable doubt (see People v Douglas, 4 NY3d 777, 779; People v Hardy, 4 NY3d 192, 198; People v Crimmins, 36 NY2d 230, 240-241). Accordingly, a new trial is required.

Since a new trial is required, we note that the Supreme Court did not improvidently exercise its discretion in ruling that the People could impeach the defendant’s credibility, should he testify, with questioning regarding his prison disciplinary record (see People v Sandoval, 34 NY2d 371; People v Adams, 39 AD3d 1081, 1082; People v Porter, 305 AD2d 933, 934; People v [*2]Veneracion, 268 AD2d 363).

The defendant’s remaining contention has been rendered academic in light of our determination.

FLORIO, J.P., LEVENTHAL, AUSTIN and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Barreto-Mejia 2010-04487         2012 NY Slip Op 08757    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

RANDALL T. ENG, P.J.

DANIEL D. ANGIOLILLO

SANDRA L. SGROI

SYLVIA HINDS-RADIX, JJ.

2010-04487

[*1]The People of the State of New York, respondent,

v

Jose Luis Barreto-Mejia, appellant. (Ind No. 08-01227)

Pappalardo & Pappalardo, LLP, Scarsdale, N.Y. (John P. Devaney

and Jill K. Sanders of counsel), for appellant.

Janet DiFiore, District Attorney, White Plains, N.Y. (Maria I.

Wagner, Steven A. Bender, and

Richard Longworth Hecht of counsel), for

respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Neary, J.), rendered April 21, 2010, convicting him of course of sexual conduct against a child in the first degree (two counts) and endangering the welfare of a child (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant’s contentions, the trial court properly determined that the then-10 year-old complainant was a vulnerable child witness within the meaning of CPL 65.20 based upon the testimony and evidence presented at the hearing, which collectively established, by clear and convincing evidence, several of the 12 factors cited in CPL 65.20(10) (see CPL 65.20[10]; People v Cintron, 75 NY2d 249, 267; People v Ramos, 203 AD2d 599; People v Lindstadt, 174 AD2d 696, 697; People v Guce, 164 AD2d 946, 947). Accordingly, that complainant was properly permitted to testify via two-way closed-circuit television, and the defendant’s constitutional right to confrontation was not violated.

The defendant’s remaining contentions are without merit.

ENG, P.J., ANGIOLILLO, SGROI and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Blackman          2011-07300         2012 NY Slip Op 08758    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

PETER B. SKELOS, J.P.

JOHN M. LEVENTHAL

CHERYL E. CHAMBERS

PLUMMER E. LOTT, JJ.

2011-07300

(Ind. No. 01-00043)

[*1]The People of the State of New York, respondent,

v

Anthony Blackman, also known as Anthony Blackmon, appellant.

James D. Licata, New City, N.Y. (Lois Cappelletti of counsel),

for appellant.

Thomas P. Zugibe, District Attorney, New City, N.Y. (Carrie

A. Ciganek of counsel; Jordan

Austin on the brief), for respondent.

DECISION & ORDER

Appeal by the defendant from a resentence of the Supreme Court, Rockland County (Kelly, J.), imposed on July 19, 2011, upon his conviction of rape in the first degree, sodomy (now criminal sexual act) in the first degree, and burglary in the second degree, upon a jury verdict, the resentence being periods of postrelease supervision in addition to the determinate terms of imprisonment previously imposed on November 26, 2001.

ORDERED that the resentence is affirmed.

Contrary to the defendant’s contention, the periods of postrelease supervision imposed by the Supreme Court upon his resentence were not excessive (see People v Guillen, 85 AD3d 1201, 1202; People v Suitte, 90 AD2d 80).

SKELOS, J.P., LEVENTHAL, CHAMBERS and LOTT, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Clancy                2011-06590         2012 NY Slip Op 08759    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

DANIEL D. ANGIOLILLO, J.P.

RUTH C. BALKIN

LEONARD B. AUSTIN

ROBERT J. MILLER, JJ.

2011-06590

(Ind. No. 2307/10)

[*1]The People of the State of New York, respondent,

v

Derrick Clancy, appellant.

Steven A. Feldman, Uniondale, N.Y., for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y.

(Rosalind C. Gray of counsel), for

respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Suffolk County (Condon, J.), rendered May 31, 2011, convicting him of robbery in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant’s valid waiver of his right to appeal precludes appellate review of his claim that his sentence was excessive (see People v Ramos, 7 NY3d 737; People v Lopez, 6 NY3d 248; People v Muniz, 91 NY2d 570; People v Callahan, 80 NY2d 273).

ANGIOLILLO, J.P., BALKIN, AUSTIN and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Class   2009-05741         2012 NY Slip Op 08760    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

ANITA R. FLORIO, J.P.

JOHN M. LEVENTHAL

LEONARD B. AUSTIN

JEFFREY A. COHEN, JJ.

2009-05741

(Ind. No. 1124/06)

[*1]The People of the State of New York, respondent,

v

Angel Class, appellant.

Lynn W. L. Fahey, New York, N.Y. (Steven R. Bernhard of

counsel), for appellant, and appellant pro se.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John

M. Castellano, Nicoletta J. Caferri, and

Jennifer Hagan of counsel), for

respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.), rendered June 11, 2009, convicting him of manslaughter in the first degree, assault in the second degree, and criminal possession of a weapon in the fourth degree, upon a jury verdict, and sentencing him to a determinate term of imprisonment of 25 years plus a period of 5 years of postrelease supervision on his conviction of manslaughter in the first degree and a determinate term of imprisonment of 7 years plus a period of 3 years of postrelease supervision on his conviction of assault in the second degree, to run consecutively to each other, and a definite term of imprisonment of 1 year on his conviction of criminal possession of a weapon in the fourth degree, to run concurrently with the sentence imposed on his conviction of manslaughter in the first degree.

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, (1) by reducing the sentence imposed on the defendant’s conviction of manslaughter in the first degree from a determinate term of imprisonment of 25 years plus a period of 5 years of postrelease supervision to a determinate term of 15 years of imprisonment plus a period of 5 years postrelease supervision, and (2) by reducing the sentence imposed on the defendant’s conviction of assault in the second degree from a determinate term of imprisonment of 7 years plus a period of 3 years of postrelease supervision to a determinate term of imprisonment of 2 years plus a period of 2 years of postrelease supervision; as so modified, the judgment is affirmed.

As the People correctly concede, a nontestifying codefendant’s statement to the police that the defendant was in the codefendant’s vehicle shortly before the subject incident occurred constituted testimonial hearsay and, thus, the admission of that statement into evidence violated the defendant’s right of confrontation, as secured to him under the Sixth Amendment to the United States Constitution (see Crawford v Washington, 541 US 36, 52; see also Davis v Washington, 547 US 813, 822; Richardson v Marsh, 481 US 200, 206). Nevertheless, we are satisfied that the evidence of the defendant’s guilt, without reference to the error, was overwhelming, and there is no reasonable possibility that the error contributed to the defendant’s conviction, particularly in light of the testimony of two other witnesses, which also placed the defendant in the codefendant’s vehicle [*2]at the relevant time. Thus, the error was harmless beyond a reasonable doubt (see People v Douglas, 4 NY3d 777, 779; People v Hardy, 4 NY3d 192, 198; People v Crimmins, 36 NY2d 230, 240-241).

The sentence imposed was excessive to the extent indicated herein (see People v Danza, 127 AD2d 781, 782; see also People v Oddone, 89 AD3d 868; People v Illescas, 47 AD3d 840; People v McLeod, 38 AD3d 798). Further, the periods of postrelease supervision imposed on the consecutive terms of imprisonment “”shall merge with and be satisfied by discharge of the period of postrelease supervision having the longest unexpired time to run”” (Penal Law § 70.45[5][c]).

The defendant’s contention, raised in his pro se supplemental brief, that he was denied due process when the People subpoenaed a particular witness to testify at trial is unpreserved for appellate review (see CPL 470.05[2]) and, in any event, without merit. The defendant’s remaining contentions, raised in his pro se supplemental brief, are without merit.

FLORIO, J.P., LEVENTHAL, AUSTIN and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Dallas  2011-10235         2012 NY Slip Op 08761    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

PETER B. SKELOS, J.P.

CHERYL E. CHAMBERS

SANDRA L. SGROI

SYLVIA HINDS-RADIX, JJ.

2011-10235

[*1]The People of the State of New York, respondent,

v

Joshua Dallas, appellant. (S.C.I. No. 178/11)

Thomas N. N. Angell, Poughkeepsie, N.Y. (Steven Levine of

counsel), for appellant.

William V. Grady, District Attorney, Poughkeepsie, N.Y.

(John H. McCarthy of counsel), for

respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Dutchess County (Greller, J.), rendered October 20, 2011, convicting him of grand larceny in the fourth degree, upon his plea of guilty, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v California (386 US 738), in which he moves for leave to withdraw as counsel for the appellant.

ORDERED that the judgment is affirmed.

We are satisfied with the sufficiency of the brief filed by the defendant’s assigned counsel pursuant to Anders v California (386 US 738), and, upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is, therefore, granted (see Anders v California, 386 US 738; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252; People v Paige, 54 AD2d 631; cf. People v Gonzalez, 47 NY2d 606).

SKELOS, J.P., CHAMBERS, SGROI and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Fields  2010-07827         2012 NY Slip Op 08762    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

MARK C. DILLON, J.P.

L. PRISCILLA HALL

SHERI S. ROMAN

JEFFREY A. COHEN, JJ.

2010-07827

[*1]The People of the State of New York, respondent,

v

Kwanell Fields, appellant. (S.C.I. No. 121/10)

Terry D. Horner, Poughkeepsie, N.Y., for appellant.

William V. Grady, District Attorney, Poughkeepsie, N.Y.

(Joan H. McCarthy of counsel), for

respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Dutchess County (Dolan, J.), rendered July 15, 2010, convicting him of attempted burglary in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that the County Court erred in setting, without a hearing, the amount of restitution he was required to pay. However, since the defendant failed to request a restitution hearing and did not object to the amount of restitution he was required to pay, his present claim regarding the amount of restitution imposed is unpreserved for appellate review (see People v Horne, 97 NY2d 404, 414 n 3; People v Francis, 82 AD3d 1263; People v Nelson, 77 AD3d 973; People v Harris, 72 AD3d 1110, 1112), and we decline to review it in the exercise of our interest of justice jurisdiction.

DILLON, J.P., HALL, ROMAN and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Furman              2010-01204         2012 NY Slip Op 08763    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

DANIEL D. ANGIOLILLO, J.P.

SANDRA L. SGROI

JEFFREY A. COHEN

ROBERT J. MILLER, JJ.

2010-01204

(Ind. No. 200/09)

[*1]The People of the State of New York, respondent,

v

Roman Furman, appellant.

John E. Tyo, Shortsville, N.Y., for appellant.

Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y.

(Morrie I. Kleinbart of counsel), for

respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Rooney, J.), rendered January 5, 2010, convicting him of manslaughter in the second degree, vehicular assault in the second degree, reckless endangerment in the second degree (two counts), and assault in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80).

ANGIOLILLO, J.P., SGROI, COHEN and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Jacobs                2011-06338         2012 NY Slip Op 08764    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

DANIEL D. ANGIOLILLO, J.P.

RUTH C. BALKIN

LEONARD B. AUSTIN

ROBERT J. MILLER, JJ.

2011-06338

(Ind. No. 1406/10)

[*1]The People of the State of New York, respondent,

v

Abdur Jacobs, appellant.

Steven A. Feldman, Uniondale, N.Y., for appellant.

Kathleen M. Rice, District Attorney, Mineola, N.Y. (Jason R.

Richards and Kevin C. King of

counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Nassau County (Carter, J.), rendered January 20, 2011, convicting him of criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant’s valid waiver of his right to appeal precludes review of his contention that the sentence imposed was excessive, as well as his contention that he received the ineffective assistance of counsel regarding that sentence (see People v Lopez, 6 NY3d 248, 255; People v Collier, 71 AD3d 909, 910).

ANGIOLILLO, J.P., BALKIN, AUSTIN and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Johnson            2010-10035         2012 NY Slip Op 08765    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

REINALDO E. RIVERA, J.P.

MARK C. DILLON

SHERI S. ROMAN

JEFFREY A. COHEN, JJ.

2010-10035

(Ind. No. 423/09)

[*1]The People of the State of New York, respondent,

v

Isaiah Johnson, appellant.

Lynn W. L. Fahey, New York, N.Y. (Jessica M. McNamara of

counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y.

(John M. Castellano, Johnnette

Traill, and Gretchen Robinson of

counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hanophy, J.), rendered October 5, 2010, convicting him of robbery in the third degree, after a nonjury trial, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant’s contention that the Supreme Court’s Sandoval ruling (see People v Sandoval, 34 NY2d 371) reflects a failure to exercise discretion is unpreserved for appellate review (cf. People v Davis, 50 AD3d 1589, 1590). In any event, the Supreme Court providently exercised its discretion in rendering its Sandoval ruling (see People v Brightly, 91 AD3d 667, 668; People v Taylor, 18 AD3d 783, 784; People v Coward, 248 AD2d 397, 397-398). We note that “”an exercise of a trial court’s Sandoval discretion should not be disturbed merely because the court did not provide a detailed recitation of its underlying reasoning, particularly where, as here, the basis of the court’s decision may be inferred from the parties’ arguments”” (People v Walker, 83 NY2d 455, 459 [citation omitted]).

The defendant’s contention that the Sandoval ruling precluded him from offering the only testimony that would have been favorable to his case is similarly unpreserved for appellate review. In any event, the contention is without merit. Not only is the defendant’s contention belied by the record, but “”the possible unavailability of other witnesses”” does not mandate a Sandoval ruling in a defendant’s favor (People v Hayes, 97 NY2d 203, 208; see People v Garcia, 45 AD3d 860).

RIVERA, J.P., DILLON, ROMAN and COHEN, JJ., concur.

ENTER: [*2]

Aprilanne Agostino

Clerk of the Court”

People v Keenum            2011-08128         2012 NY Slip Op 08766    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

PETER B. SKELOS, J.P.

CHERYL E. CHAMBERS

SANDRA L. SGROI

SYLVIA HINDS-RADIX, JJ.

2011-08128

(Ind. No. 78/10)

[*1]The People of the State of New York, respondent,

v

Michael B. Keenum, appellant.

Arza Feldman, Uniondale, N.Y. (Steven A. Feldman of

counsel), for appellant.

William V. Grady, District Attorney, Poughkeepsie, N.Y.

(Kirsten A. Rappleyea of counsel),

for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Dutchess County (Greller, J.), rendered August 17, 2011, convicting him of robbery in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Where the plea minutes do not indicate that a plea of guilty was negotiated with terms that included restitution, at sentencing, the defendant should be given an opportunity either to withdraw his plea or to accept the addition of restitution to his negotiated sentence (see People v Ortega, 61 AD3d 705, 706; People v Kegel, 55 AD3d 625; People v Henderson, 44 AD3d 873, 874). Here, although the plea minutes do not indicate that the defendant’s plea of guilty was negotiated with terms that included restitution, at sentencing, the defendant expressly indicated on the record that he wanted to pay even more than the amount of restitution requested. Accordingly, the defendant waived his contention that his guilty plea should be vacated because he was not advised of the terms of restitution prior to entering his plea (see People v Gibson, 88 AD3d 1012, 1012-1013; People v Faso, 82 AD3d 1584, 1585; People v Lugo, 191 AD2d 648).

The defendant’s contention that the County Court failed to inquire about a potential intoxication defense based upon certain post-plea assertions made by him is unpreserved for appellate review (see People v Modesto, 39 AD3d 567; People v Harrell, 288 AD2d 489; People v Sierra, 256 AD2d 598, 599). Moreover, the rare case exception to the preservation requirement is not applicable (see People v Lopez, 71 NY2d 662, 666; People v Modesto, 39 AD3d at 567; People v Cooper, 34 AD3d 827). In any event, the defendant’s assertions do not warrant vacating his plea (see People v Dixon, 29 NY2d 55, 57; People v Gibson, 95 AD3d 1033, 1033-1034; People v Dazzo, 92 AD3d 796).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80).

SKELOS, J.P., CHAMBERS, SGROI and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Kennedy           2010-05200         2012 NY Slip Op 08767    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

ANITA R. FLORIO, J.P.

JOHN M. LEVENTHAL

LEONARD B. AUSTIN

JEFFREY A. COHEN, JJ.

2010-05200

(Ind. No. 6397/08)

[*1]The People of the State of New York, respondent,

v

Lee Kennedy, appellant.

Lynn W. L. Fahey, New York, N.Y. (Allegra Glashausser of

counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard

Joblove, Thomas M. Ross, and

George R. Painter IV of counsel),

for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dowling, J.), rendered May 4, 2010, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The Supreme Court erred in modifying its Sandoval ruling (see People v Sandoval, 34 NY2d 371) to permit the prosecutor to question the defendant regarding his gang membership, which the Supreme Court had previously ruled was to be precluded. Contrary to the People’s contention, photographs depicting the defendant wearing gang attire, which were discovered during trial, did not provide new information relevant to the defendant’s credibility (cf. People v Cooper, 78 AD3d 593; People v Ramos, 255 AD2d 203). However, under the circumstances of this case, the error in permitting the questioning was harmless (see People v Crimmins, 36 NY2d 230, 241-242; People v Duggins, 1 AD3d 450, 450-451, affd 3 NY3d 522). In contrast, the Supreme Court, as part of its Sandoval ruling, providently exercised its discretion in permitting the prosecutor to cross-examine a potential defense witness regarding his knowledge of the defendant’s gang membership because this evidence tended to establish a motive for this witness to fabricate (see People v Ocampo, 28 AD3d 684).

The defendant’s challenges to various remarks made by the prosecutor during his summation are unpreserved for appellate review (see CPL 470.05[2]), except for his challenge to the prosecutor’s description of defense counsel’s characterization of a police witness. In any event, all of the challenged remarks were within the bounds of permissible rhetorical comment, fair response to arguments and issues raised by the defense, or fair comment on the evidence (see People v Ashwal, 39 NY2d 105, 109-110).

FLORIO, J.P., LEVENTHAL, AUSTIN and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Marcus              2011-00271         2012 NY Slip Op 08768    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

RANDALL T. ENG, P.J.

DANIEL D. ANGIOLILLO

SANDRA L. SGROI

SYLVIA HINDS-RADIX, JJ.

2011-00271

(Ind. No. 2154/09)

[*1]The People of the State of New York, respondent,

v

Michael Marcus, appellant.

Lynn W. L. Fahey, New York, N.Y. (Allegra Glashausser of

counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y.

(John M. Castellano, Nicoletta J.

Caferri, and Merri Turk Lasky of

counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.), rendered December 14, 2010, convicting him of burglary in the first degree, robbery in the second degree, and grand larceny in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law, and a new trial is ordered.

In Batson v Kentucky (476 US 79, 94-98), the United States Supreme Court formulated a three-step test to assess whether peremptory challenges have been used to exclude potential jurors on the basis of race, gender, or other protected categories (see People v Smocum, 99 NY2d 418, 421). In step one, the moving party must make a prima facie case of purposeful discrimination by “”showing that the facts and circumstances of the voir dire raise an inference that the other party excused one or more jurors for an impermissible reason”” (id. at 421). If the moving party makes a prima facie showing, the inquiry proceeds to step two, and the burden shifts to the adversary to provide a facially neutral explanation for the challenge. If the nonmoving party “”offers facially neutral reasons supporting the challenge, the inference of discrimination is overcome”” (People v Allen, 86 NY2d 101, 109). Once facially neutral reasons are provided, the inquiry proceeds to step three, and the burden shifts back to the moving party to prove purposeful discrimination, and “” the trial court must determine whether the proffered reasons are pretextual'”” (People v Hecker, 15 NY3d 625, 634-635, cert denied sub nom. Black v New YorkUS, 131 S Ct 2117, quoting People v Allen, 86 NY2d at 104), including whether the reasons apply to the facts of the case, and whether the reasons were applied to only a particular class of jurors and not to others (see People v Richie, 217 AD2d 84, 89).

In this case, the inquiry proceeded to step three. After the Supreme Court found that defense counsel was using his peremptory challenges to challenge male jurors, defense counsel challenged a male juror on the ground that the juror was a chiropractor and had stated, during voir dire, that he only “”believe[d]”” he could be fair. When asked whether he could be fair, that juror responded, “”I know what my conscious can do. But I don’t know what the subconscious [sic],”” and was admonished by the court for being “”technical.”” The court seated the juror over defense counsel’s objection, explaining that the juror initially said that he did not believe he could be fair, but later explained that he was nervous and reaffirmed his position that he could, in fact, be fair. The [*2]court did not examine the other reason for the challenge: that the juror was a chiropractor.

The juror’s answer to the question of whether he could be fair, which prompted an admonition from the Supreme Court not to be “”technical,”” was, on its face, a nonpretextual reason to exercise a peremptory challenge. Further, the defendant contends that the fact the juror was a chiropractor was a legitimate gender-neutral reason for striking the juror. The People contend that this reason was pretextual, because defense counsel did not challenge similarly situated female jurors. However, medical background was related to the facts of the case, since proof of the defendant’s guilt involved DNA evidence, and defense counsel struck female jurors with similar backgrounds.

In view of the foregoing, the record does not support the Supreme Court’s conclusion that defense counsel engaged in purposeful discrimination against men when he exercised a peremptory challenge against the juror seated over his objection. This error mandates reversal (see People v Hecker, 15 NY2d at 662; People v Powell, 92 AD3d 610).

Since there must be a new trial, we note that the defendant’s recorded telephone conversations, in which he expressed a desire to kill the witnesses against him, were admissible as evidence of consciousness of guilt (see People v Torres, 61 AD3d 489). However, certain comments in the prosecutor’s summation, which, over objection, vouched for the strength of the People’s case, repeated over and over again that the defendant wanted the witnesses to die, and speculated as to the significance of certain comments made during those telephone calls, including the identity of the getaway driver, were improper.

The defendant’s remaining contentions need not be addressed in light of our determination.

ENG, P.J., ANGIOLILLO, SGROI and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Roiz     2011-03881         2012 NY Slip Op 08769    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

MARK C. DILLON, J.P.

CHERYL E. CHAMBERS

SANDRA L. SGROI

ROBERT J. MILLER, JJ.

2011-03881

(Ind. No. 507/10)

[*1]The People of the State of New York, respondent,

v

Domingo Roiz, appellant.

Jillian S. Harrington, New York, N.Y., for appellant.

Kathleen M. Rice, District Attorney, Mineola, N.Y. (Sarah S.

Rabinowitz and Courtney

Weinberger of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Robbins, J.), rendered April 7, 2011, convicting him of assault in the first degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant’s challenge to the legal sufficiency of the evidence supporting the conviction is unpreserved for appellate review (see CPL 470.05[2]; People v Hawkins, 11 NY3d 484, 492). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9 NY3d 342), we nevertheless accord great deference to the jury’s opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410, cert denied 542 US 946; People v Bleakley, 69 NY2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633).

The defendant received the effective assistance of counsel (see People v Caban, 5 NY3d 143, 152, 156; People v Baldi, 54 NY2d 137; People v Taberas, 60 AD3d 791, 793).

The defendant’s contention that the sentence imposed penalized him for exercising his right to trial is unpreserved for appellate review (see People v Osorio, 49 AD3d 562, 564; People v Hargroves, 27 AD3d 765), and, in any event, is without merit (see People v Ramos, 74 AD3d 991, 992; People v Hargroves, 27 AD3d at 766). Moreover, the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80).

DILLON, J.P., CHAMBERS, SGROI and MILLER, JJ., concur. [*2]

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Sawyer              2011-05086         2012 NY Slip Op 08770    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

PETER B. SKELOS, J.P.

CHERYL E. CHAMBERS

SANDRA L. SGROI

SYLVIA HINDS-RADIX, JJ.

2011-05086

(Ind. No. 2687/02)

[*1]The People of the State of New York, respondent,

v

Robert Sawyer, appellant.

Lynn W. L. Fahey, New York, N.Y. (Paul Skip Laisure of

counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y.

(John M. Castellano and Merri Turk

Lasky of counsel; Jonathan V.

Brewer on the brief), for respondent.

DECISION & ORDER

Appeal by the defendant from a resentence of the Supreme Court, Queens County (Hollie, J.), imposed May 20, 2011, upon his conviction of rape in the first degree, which sentence was originally imposed, upon his plea of guilty, on December 4, 2003. Assigned counsel has submitted a brief in accordance with Anders v California (386 US 738), in which she moves for leave to withdraw as counsel for the appellant.

ORDERED that the resentence is affirmed.

We are satisfied with the sufficiency of the brief filed by the defendant’s assigned counsel pursuant to Anders v California (386 US 738), and, upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is, therefore, granted (see Anders v California, 386 US 738; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252; People v Paige, 54 AD2d 631; cf. People v Gonzalez, 47 NY2d 606).

SKELOS, J.P., CHAMBERS, SGROI and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Stocks                2009-01859         2012 NY Slip Op 08771    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

PETER B. SKELOS, J.P.

L. PRISCILLA HALL

LEONARD B. AUSTIN

SYLVIA HINDS-RADIX, JJ.

2009-01859

(Ind. No. 3047/07)

[*1]The People of the State of New York, respondent,

v

Vernon Stocks, appellant.

Lynn W. L. Fahey, New York, N.Y. (Allegra Glashausser of

counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John

M. Castellano, Nicoletta J. Caferri, and

William H. Branigan of counsel), for

respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Knopf, J.), rendered December 11, 2008, convicting him of robbery in the second degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law, and a new trial is ordered.

The defendant’s contention that the People failed to present legally sufficient evidence of physical injury to sustain his conviction of robbery in the second degree under count two of the indictment (see Penal Law § 160.10[2][a]) is unpreserved for appellate review (see People v Hawkins, 11 NY3d 484, 492; People v Gray, 86 NY2d 10, 19). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish physical injury (see Penal Law § 10.00[9]; People v Chiddick, 8 NY3d 445, 447-448; People v Valencia, 50 AD3d 1163, 1164). Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633).

However, a new trial is required based on the Supreme Court’s failure to comply with CPL 310.30. In People v O’Rama (78 NY2d 270), the Court of Appeals set forth the procedure for handling communications from the jury in accordance with CPL 310.30. The Court of Appeals held that “”whenever a substantive written jury communication is received by the Judge, it should be marked as a court exhibit and, before the jury is recalled to the courtroom, read into the record in the presence of counsel”” (People v O’Rama, 78 NY2d at 277-278). “”After the contents of the inquiry are placed on the record, counsel should be afforded a full opportunity to suggest appropriate responses. The court should then ordinarily apprise counsel of the substance of the responsive instruction it intends to give so that counsel can seek whatever modifications are deemed appropriate before the jury is exposed to any potentially harmful information. Once the jury is returned to the courtroom, the communication should be read in open court”” (People v Lockley, 84 AD3d 836, 837; see People v O’Rama, 78 NY2d at 278). “”Although some deviations from this procedure may be [*2]warranted depending on the circumstances, where the court fails to fulfill its core responsibility’ under CPL 310.30 by depriving the defendant of meaningful notice of the communication or a meaningful opportunity to participate in the formulation of the court’s response, the error affects the mode of the proceedings”” (People v Lockley, 84 AD3d at 837, quoting People v Kisoon, 8 NY3d 129, 134-135; see People v O’Rama, 78 NY2d at 279-280). “”The purpose of CPL 310.30 and the O’Rama decision is to maximize the participation of counsel at a time when counsel’s input is most meaningful, that is, before the court gives its formal response to the jury”” (People v Lockley, 84 AD3d at 838; see People v Cook, 85 NY2d 928, 931; People v O’Rama, 78 NY2d at 278).

Here, there is no evidence appearing on the face of the record that the Supreme Court read the contents of a note from the jury into the record and provided counsel a full opportunity to suggest appropriate responses (see People v Surpris, 83 AD3d 742, 744). Rather, the record demonstrates that the Supreme Court violated the procedure set forth in O’Rama by reading the contents of the jury note for the first time in front of the jury and immediately providing a response (see People v Lockley, 84 AD3d at 838). Significantly, in one part of the note, the jury asked for clarification as to the difference between the two counts of robbery in the second degree. This was not a request for a mere ministerial readback of the Supreme Court’s charge (cf. People v Starling, 85 NY2d 509, 516; People v Snider, 49 AD3d 459). Instead, that portion of the jury’s note requested a substantive response (see People v Lockley, 84 AD3d at 838). Since defense counsel was not afforded the opportunity to provide suggestions for the Supreme Court’s response to the jury’s substantive inquiry, the defendant was prevented from participating meaningfully at this critical stage of the proceeding (see People v O’Rama, 78 NY2d at 279; People v Lockley, 84 AD3d at 838).

Since the jury’s note contained a substantive inquiry, the Supreme Court’s failure to provide counsel an opportunity to participate meaningfully in formulating its response was a mode of proceedings error that requires reversal (see People v Tabb, 13 NY3d 852, 853; People v Surpris, 83 AD3d at 744; People v Lewis, 77 AD3d 579, 580). Accordingly, we reverse the judgment and order a new trial.

We note that the Supreme Court improperly precluded, on hearsay grounds, testimony regarding the contents of a conversation between the defendant and his purported accomplice that was relevant to the defendant’s state of mind (see People v Kass, 59 AD3d 77, 86-87). Since this testimony was offered for a nonhearsay purpose, it should have been admitted at trial.

SKELOS, J.P., HALL, AUSTIN and HINDS-RADIX, JJ., concur.

2009-01859 DECISION & ORDER ON MOTION

The People, etc., respondent,

v Vernon Stocks, appellant.

(Ind. No. 3047/07)

Motion by the appellant, inter alia, to strike stated portions of the respondent’s brief on an appeal from a judgment of the Supreme Court, Queens County, rendered December 11, 2008. By decision and order on motion of this Court dated June 26, 2012, that branch of the motion which was to strike stated portions of the respondent’s brief was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion, the papers filed in opposition thereto, and upon the argument of the appeal, it is, [*3]

ORDERED that the branch of the motion which was to strike stated portions of the respondent’s brief is granted, and those portions of the respondent’s brief have not been considered (see People v Powell,AD3d, 2012 NY Slip Op 08342 [2d Dept 2012]).

SKELOS, J.P., HALL, AUSTIN and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Tockash             2011-04232         2012 NY Slip Op 08772    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

DANIEL D. ANGIOLILLO, J.P.

RUTH C. BALKIN

PLUMMER E. LOTT

SHERI S. ROMAN, JJ.

2011-04232

(Ind. No. 126/10)

[*1]The People of the State of New York, respondent,

v

William Tockash, appellant.

Judah Maltz, Kew Gardens, N.Y., for appellant.

Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy

J. Smiley and Barbara Kornblau of

counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Berkowitz, J.), rendered April 8, 2011, convicting him of criminal possession of a weapon in the third degree, coercion in the first degree, and unlawful imprisonment in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant’s contention, the Supreme Court properly declined to charge coercion in the second degree as a lesser-included offense of coercion in the first degree (see People v Discala, 45 NY2d 38; People v Eboli, 34 NY2d 281).

The defendant’s contention that his conviction of coercion in the first degree was not supported by legally sufficient evidence is unpreserved for appellate review (see CPL 470.05[2]) and, in any event, is without merit. Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish his guilt of that crime beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9 NY3d 342, 348), we nevertheless accord great deference to the jury’s opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, cert denied 542 US 946; People v Bleakley, 69 NY2d 490, 495). Upon the exercise of our factual review power (see CPL 470.15[5]), we are satisfied that the verdict of guilt as to coercion in the first degree was not against the weight of the evidence (see People v Romero, 7 NY3d 633). Similarly, contrary to the defendant’s contention, the verdict of guilt as to criminal possession of a weapon in the third degree was not against the weight of the evidence (see People v Romero, 7 NY3d 633).

Contrary to the defendant’s contention, the Supreme Court properly denied his motion for a mistrial on the ground of alleged juror misconduct in light of the fact that juror number eight professed her ability to keep an open mind and to base her decision on the evidence and the law as instructed by the court (see People v Elias, 90 AD3d 947, 947-948). [*2]

The defendant’s remaining contentions are unpreserved for appellate review, and, in any event, are without merit.

ANGIOLILLO, J.P., BALKIN, LOTT and ROMAN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Tuffini                2011-03106         2012 NY Slip Op 08773    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

REINALDO E. RIVERA, J.P.

THOMAS A. DICKERSON

JOHN M. LEVENTHAL

PLUMMER E. LOTT, JJ.

2011-03106

(Ind. No. 2980-10)

[*1]The People of the State of New York, respondent,

v

Terrence E. Tuffini, appellant.

Salvatore C. Adamo, New York, N.Y., for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Anne E.

Oh of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Suffolk County (Condon, J.), rendered March 28, 2011, convicting him of burglary in the third degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Although a claim that a plea of guilty was not voluntary survives a valid waiver of the right to appeal (see People v Seaberg, 74 NY2d 1, 10), the defendant’s contention that his plea was not voluntary is unpreserved for appellate review because he did not move to vacate his plea or otherwise raise this issue before the County Court (see People v Perez, 51 AD3d 1043). In any event, a plea of guilty will be upheld as valid if it was entered knowingly, voluntarily, and intelligently (see People v Fiumefreddo, 82 NY2d 536, 543; People v Lopez, 71 NY2d 662, 666; People v Harris, 61 NY2d 9, 17). Here, the defendant’s plea of guilty was entered knowingly, voluntarily, and intelligently.

The defendant received the effective assistance of counsel (see People v Benevento, 91 NY2d 708; People v Baldi, 54 NY2d 137).

RIVERA, J.P., DICKERSON, LEVENTHAL and LOTT, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Turner                2011-06738         2012 NY Slip Op 08774    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

MARK C. DILLON, J.P.

L. PRISCILLA HALL

SHERI S. ROMAN

JEFFREY A. COHEN, JJ.

2011-06738

[*1]The People of the State of New York, respondent,

v

Shawn Turner, appellant. (S.C.I. No. 2145/07)

Alan Katz, Garden City Park, N.Y., for appellant.

Kathleen M. Rice, District Attorney, Mineola, N.Y. (Joanna

Hershey of counsel; Matthew C.

Frankel on the brief), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Gulotta, Jr., J.), rendered June 22, 2011, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree, upon his plea of guilty, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v California (386 US 738), in which he moves for leave to withdraw as counsel for the appellant.

ORDERED that the judgment is affirmed.

We are satisfied with the sufficiency of the brief filed by the defendant’s assigned counsel pursuant to Anders v California (386 US 738), and, upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on the appeal. Counsel’s application for leave to withdraw as counsel is, therefore, granted (see Anders v California, 386 US 738; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252; People v Paige, 54 AD2d 631; cf. People v Gonzalez, 47 NY2d 606).

DILLON, J.P., HALL, ROMAN and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Vasquez            2010-02031         2012 NY Slip Op 08775    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

WILLIAM F. MASTRO, J.P.

PETER B. SKELOS

JOHN M. LEVENTHAL

LEONARD B. AUSTIN

JEFFREY A. COHEN, JJ.

2010-02031

(Ind. No. 11399/09)

[*1]The People of the State of New York, respondent,

v

Miguel Vasquez, appellant.

Steven Banks, New York, N.Y. (Joanne Legano Ross of counsel),

for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard

Joblove and Keith Dolan of counsel;

Victoria Sypniewski on the

memorandum), for respondent.

DECISION & ORDER

Appeal by the defendant from a sentence of the Supreme Court, Kings County (DiMango, J.), imposed January 22, 2010, on the ground that the sentence is excessive.

ORDERED that the sentence is affirmed.

A defendant who has validly waived the right to appeal cannot invoke this Court’s interest of justice jurisdiction to obtain a reduced sentence (see People v Lopez, 6 NY3d 248, 255). Here, however, the Court is not precluded from exercising its interest of justice jurisdiction because the defendant’s purported waiver of his right to appeal was invalid. Although “” a trial court need not engage in any particular litany’ or catechism in satisfying itself that a defendant has entered a knowing, intelligent and voluntary appeal waiver, a trial court must make certain that a defendant’s understanding’ of the waiver . . . is evident on the face of the record'”” (People v Bradshaw, 18 NY3d 257, 265, quoting People v Lopez, 6 NY3d at 256), and that “”the record demonstrates that [the waiver] was made knowingly, intelligently and voluntarily”” (People v Lopez, 6 NY3d at 256). Here, the Supreme Court stated: “”Please sign the waiver of right [sic] to appeal if you agree with what we are doing here,”” and asked the defendant, who responded in the affirmative, whether he had signed the waiver freely, voluntarily, and because he understood what it meant. The court did not confirm that the defendant discussed the written waiver with his counsel or that “”he was aware of its contents”” (People v Callahan, 80 NY2d 273, 283). This record discussion does not demonstrate that the defendant “”grasped the concept of the appeal waiver and the nature of the right he was foregoing”” (People v Bradshaw, 18 NY3d at 267; see People v Grant, 83 AD3d 862, 862-863; cf. People v Ramos, 7 NY3d 737, 738). Therefore, “”notwithstanding the written appeal waiver form it cannot be said that defendant knowingly, intelligently and voluntarily waived his right to appeal”” (People v Bradshaw, 18 NY3d at 267; see People v Callahan, 80 NY2d at 283; People v Grant, 83 AD3d at 862-863).

Nevertheless, the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80). [*2]

MASTRO, J.P., SKELOS, LEVENTHAL, AUSTIN and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v York    2012-00583         2012 NY Slip Op 08776    “Decided on December 19, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

DANIEL D. ANGIOLILLO, J.P.

RUTH C. BALKIN

LEONARD B. AUSTIN

ROBERT J. MILLER, JJ.

2012-00583 ON MOTION

(Ind. No. 239/11)

[*1]The People of the State of New York, respondent,

v

Darin W. York, appellant.

Yasmin Daley Duncan, Brooklyn, N.Y., for appellant.

William V. Grady, District Attorney, Poughkeepsie, N.Y.

(Joan H. McCarthy of counsel), for

respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Dutchess County (Greller, J.), rendered December 19, 2011, convicting him of operating a vehicle while under the influence of drugs, upon his plea of guilty, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v California (386 US 738), in which she moves for leave to withdraw as counsel for the appellant.

ORDERED that the motion of Yasmin Daley Duncan for leave to withdraw as counsel for the appellant is granted, and she is directed to turn over all papers in her possession to new counsel assigned herein; and it is further,

ORDERED that Gary E. Eisenberg, Esq., 10 Esquire Road, Suite 10, New City, N.Y., 10956, is assigned as counsel to perfect the appeal; and it is further,

ORDERED that the People are directed to furnish a copy of the certified transcript of the proceedings to the new assigned counsel; and it is further,

ORDERED that new counsel shall serve and file a brief on behalf of the appellant within 90 days of this decision and order, and the People shall serve and file their brief within 120 days of this decision and order. By prior decision and order on motion of this Court dated March 14, 2012, the appellant was granted leave to prosecute the appeal as a poor person, with the appeal to be heard on the original papers (including a certified transcript of the proceedings) and on the briefs of the parties, who were directed to file nine copies of their respective briefs and to serve one copy on each other.

Upon this Court’s independent review of the record, we conclude that there are potentially nonfrivolous issues in this case, including, but not necessarily limited to, the legality of the sentence imposed (see Penal Law § 60.01[2][d]). Accordingly, assignment of new counsel is warranted (see generally Matter of Giovanni S. [Jasmin A.], 89 AD3d 252, 254-261). [*2]

ANGIOLILLO, J.P., BALKIN, AUSTIN and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

“Alfonso v Pacific Classon Realty, LLC”    2011-11225         2012 NY Slip Op 08468    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

WILLIAM F. MASTRO, J.P.

PETER B. SKELOS

ANITA R. FLORIO

THOMAS A. DICKERSON, JJ.

2011-11225

(Index No. 12885/06)

[*1]Ciro H. Alfonso, respondent,

v

Pacific Classon Realty, LLC, et al., appellants.

Morris Duffy Alonso & Faley, New York, N.Y. (Anna J. Ervolina

and Andrea M. Alonso of counsel), for appellants.

Todd J. Krouner, Chappaqua, N.Y. (Diana M. Carlino of

counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from so much of an order of the Supreme Court, Kings County (Partnow, J.), dated September 20, 2011, as denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant Pacific Classon Realty, LLC, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff allegedly sustained injuries while, in the course of his employment with D.S. Imports, he was attempting to remove a heating unit from the ceiling of certain premises leased, at the time of the accident, by the defendant Delmar Sales, Inc. (hereinafter Delmar Sales) and purchased, one day after the accident, by the defendant Pacific Classon Realty, LLC (hereinafter PCR).

The Supreme Court should have granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against PCR. The defendants established PCR’s prima facie entitlement to judgment as a matter of law by submitting evidence which established that PCR did not own the premises at the time of the plaintiff’s accident, and had no connection with the premises prior to its acquisition of title one day after the accident occurred. The plaintiff’s arguments in opposition were based solely upon surmise, conjecture, and suspicion, and were insufficient to raise a triable issue of fact to defeat that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against PCR (see e.g. Grassi & Co., CPAs, P.C. v Janover Rubinroit, LLC, 82 AD3d 700; Rendon v Castle Realty, 28 AD3d 532, 533).

However, the Supreme Court properly denied that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against Delmar Sales. Delmar Sales contended that the causes of action against it were barred by the Workers’ [*2]Compensation Law because the plaintiff was its special employee. “”[T]he receipt of workers’ compensation benefits is the exclusive remedy that a worker may obtain against an employer for losses suffered as a result of an injury sustained in the course of employment”” (Slikas v Cyclone Realty, LLC, 78 AD3d 144, 150; see Workers’ Compensation Law §§ 10, 11, 29[6]; Reich v Manhattan Boiler & Equip. Corp., 91 NY2d 772; Hofweber v Soros, 57 AD3d 848; Pereira v St. Joseph’s Cemetery, 54 AD3d 835). “” A person may be deemed to have more than one employer for purposes of the Workers’ Compensation Law, a general employer and a special employer'”” (Slikas v Cyclone Realty, LLC, 78 AD3d at 150, quoting Schramm v Cold Spring Harbor Lab., 17 AD3d 661, 662; see Thompson v Grumman Aerospace Corp., 78 NY2d 553, 557). Moreover, where facts “” demonstrate the plaintiff’s dual employment status, whether the relationship between two corporate entities is that of joint venturers, parent and subsidiary, corporate affiliates, or general and special employers, immunity will be extended to all the plaintiff’s employers'”” (Degale-Selier v Preferred Mgt. & Leasing Corp., 57 AD3d 825, 825 quoting Levine v Lee’s Pontiac, 203 AD2d 259, 261).

Here, the plaintiff received workers’ compensation benefits from his employer, D.S. Imports. The defendants, however, failed to make a prima facie showing that the plaintiff was a special employee of Delmar Sales (see Slikas v Cyclone Realty, LLC, 78 AD3d 144; Soto v Akam Assoc., Inc., 61 AD3d 665; Degale-Selier v Preferred Mgt. & Leasing Corp., 57 AD3d 825; Kramer v NAB Constr. Corp., 250 AD2d 818), and failed to submit sufficient evidentiary proof to establish that Delmar Sales was an alter ego of, or engaged in a joint venture with, D.S. Imports (see Slikas v Cyclone Realty, LLC, 78 AD3d 144; Degale-Selier v Preferred Mgt. & Leasing Corp., 57 AD3d 825; Masley v Herlew Realty Corp., 45 AD3d 653). Accordingly, the Supreme Court properly denied that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against Delmar Sales.

The Supreme Court also properly denied those branches of the defendants’ motion which were for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) against the defendant Delmar Sales, made on the ground that Delmar Sales was not a contractor or owner within the meaning of the Labor Law. Labor Law §§ 240(1) and 241(6) apply to owners, contractors, and their agents (see Labor Law §§ 240[1]; 241[6]; Guclu v 900 Eighth Ave. Condominium, LLC, 81 AD3d 592, 593). A party is deemed to be an agent of an owner or contractor under the Labor Law when it has the “” ability to control the activity which brought about the injury'”” (Guclu v 900 Eighth Ave. Condominium, LLC, 81 AD3d at 593, quoting Walls v Turner Constr. Co., 4 NY3d 861, 863-864; see Russin v Louis N. Picciano & Son, 54 NY2d 311, 317-318). A lessee of real property that hires a contractor and has the right to control the work at the property is considered to be an owner within the meaning of the law (see Guclu v 900 Eighth Ave. Condominium, LLC, 81 AD3d at 593; see also Ferluckaj v Goldman Sachs & Co., 12 NY3d 316, 320). Moreover, the term owner “”may also apply to a lessee, where the lessee has the right or authority to control the work site, even if the lessee did not hire the general contractor”” (Zaher v Shopwell, Inc., 18 AD3d 339, 339-340; see Bart v Universal Pictures, 277 AD2d 4). The key question is whether the defendant had the right to insist that proper safety practices were followed (see Grilikhes v International Tile & Stone Show Expos, 90 AD3d 480; Bart v Universal Pictures, 277 AD2d 4; Copertino v Ward, 100 AD2d 565). Here, Delmar Sales failed to establish, prima facie, that it was not an owner or agent within the meaning of the Labor Law (see Zaher v Shopwell, Inc., 18 AD3d 339).

The plaintiff’s remaining contention is without merit.

MASTRO, J.P., SKELOS, FLORIO and DICKERSON, JJ., concur.

ENTER:

Aprilanne Agostino [*3]

Clerk of the Court”

Alli v Baijnath     2011-08590         2012 NY Slip Op 08469    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

REINALDO E. RIVERA, J.P.

RUTH C. BALKIN

JOHN M. LEVENTHAL

SYLVIA HINDS-RADIX, JJ.

2011-08590

(Index No. 23432/07)

[*1]Bebi Z. Alli, appellant,

v

Bhojnarine Baijnath, et al., respondents, et al., defendant. Raymond Cash, P.C., Forest Hills, N.Y., for appellant.

Borchert, Genovesi & La Spina, P.C., Whitestone, N.Y. (Helmut

Borchert of counsel), for respondents Bhojnarine Baijnath and

Lilwalti Baijnath.

Solomon & Siris, P.C., Garden City, N.Y. (Bill Tsevis of

counsel), for respondent Flushing Savings

Bank, F.S.B.

DECISION & ORDER

In an action pursuant to RPAPL article 15 for the determination of claims to real property, the plaintiff appeals from an order of the Supreme Court, Kings County (Martin, J.), dated June 29, 2011, which denied her motion to restore the action to the active calendar, extend the time to file a note of issue, and schedule all outstanding discovery.

ORDERED that the order is reversed, on the law, with one bill of costs payable by the respondents appearing separately and filing separate briefs, and the plaintiff’s motion to restore the action to the active calendar, extend the time to file a note of issue, and schedule all outstanding discovery is granted.

In a compliance conference order dated January 21, 2009, the Supreme Court directed the plaintiff to file a note of issue on or before June 23, 2009, “”or [the] action may be dismissed”” (emphasis in original). The order further provided, “”[t]his Order does not constitute a CPLR [ ] 3216 Notice”” (emphasis in original). The plaintiff failed to file her note of issue on or before June 23, 2009. On August 28, 2009, the matter was marked “”disposed.”” Thereafter, the plaintiff moved to restore the action to the active calendar, extend the time to file a note of issue, and schedule all outstanding discovery. The Supreme Court found that the compliance conference order had the same effect as a valid 90-day demand pursuant to CPLR 3216, and denied the motion. The plaintiff appeals.

“” [W]hile the failure to comply with a court order directing the filing of a note of issue can, in the proper circumstances, provide the basis for the dismissal of a complaint under CPLR 3216, courts are prohibited from dismissing an action based on neglect to prosecute unless the CPLR 3216 statutory preconditions to dismissal are met'”” (Neary v Tower Ins., 94 AD3d 723, 724, quoting Banik v Evy Realty, LLC, 84 AD3d 994, 996). A 90-day demand to file a note of issue is one of the statutory preconditions (see CPLR 3216[b][3]; Neary v Tower Ins., 94 AD3d at 724; [*2]Maharaj v LaRoache, 69 AD3d 684).

Contrary to the Supreme Court’s determination, the subject compliance conference order did not constitute a valid 90-day demand pursuant to CPLR 3216 (see CPLR 3216[b][3]; Neary v Tower Ins., 94 AD3d at 724; Maharaj v LaRoache, 69 AD3d at 684; O’Connell v City Wide Auto Leasing, 6 AD3d 682, 683). This compliance conference order specifically stated that it was not an order constituting a CPLR 3216 notice and did not contain any language warning that failure to file the note of issue by the deadline of June 23, 2009, would serve as a basis for dismissal under CPLR 3216 (see Neary v Tower Ins., 94 AD3d at 724; Maharaj v LaRoache, 69 AD3d at 684). Accordingly, the Supreme Court erred in denying the plaintiff’s motion to restore the action to the active calendar, extend the time to file a note of issue, and schedule all outstanding discovery.

In light of our determination, we need not address the plaintiff’s remaining contention.

RIVERA, J.P., BALKIN, LEVENTHAL and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

“Appleton v 205 E. 17th St., LLC”                2010-12156         2012 NY Slip Op 08470    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

DANIEL D. ANGIOLILLO, J.P.

THOMAS A. DICKERSON

L. PRISCILLA HALL

SHERI S. ROMAN, JJ.

2010-12156

(Index No. 20055/07)

[*1]Adorita Felipe Appleton, appellant,

v

205 East 17th Street, LLC, et al., respondents, et al., defendants.

Lever & Stolzenberg, LLP, White Plains, N.Y. (James M. Marino

of counsel), for appellant.

Furey, Kerley, Walsh, Matera & Cinquemani, P.C., Seaford,

N.Y. (Lauren B. Bristol of counsel),

for respondents.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Bayne, J.), dated November 16, 2010, which, upon a jury verdict on the issue of liability, finding, inter alia, that neither the plaintiff nor the defendants 205 East 17th Street, LLC, and 2500 Bedford Avenue, LLC, were negligent in the happening of the accident, is in favor of the defendants 205 East 17th Street, LLC, and 2500 Bedford Avenue, LLC, and against her, dismissing the complaint insofar as asserted against those defendants. Justice Roman has been substituted for former Justice Belen (see 22 NYCRR 670.1[c]).

ORDERED that the judgment is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Kings County, for a new trial.

On September 27, 2005, the plaintiff allegedly fell and sustained injuries in her apartment building. The plaintiff was descending a staircase into the lobby when she allegedly tripped on a piece of metal resting on the step immediately above the lobby floor. At the time, there was renovation work ongoing in the building, and there were building materials stored in the lobby.

The plaintiff commenced this action to recover damages for personal injuries. Following a trial, the jury returned a verdict finding, inter alia, that neither the plaintiff nor the defendants 205 East 17th Street, LLC, and 2500 Bedford Avenue, LLC (hereinafter together the respondents), were negligent in the happening of the accident. The Supreme Court entered a judgment dismissing the complaint insofar as asserted against the respondents. On appeal from the judgment, the plaintiff contends that she was deprived of a fair trial by the cumulative impact of several of the Supreme Court’s evidentiary rulings at trial. We agree.

“”In a premises liability case, the plaintiff must plead and prove that the defendant either created or had actual or constructive notice of the dangerous condition”” (Ramos v Castega-20 Vesey St., LLC, 25 AD3d 773, 775; see Gordon v American Museum of Natural History, 67 NY2d 836, 837). [*2]

The Supreme Court erred in precluding the former employee of 205 East 17th Street, LLC, Antonio Markham, who was the superintendent of the building at the time of the accident, from testifying concerning two complaints he had received of construction supplies or debris in the area of the building lobby. The court also erred in precluding the plaintiff’s husband from testifying as to his observations of the area where the accident occurred approximately 12 hours prior to the accident. This testimony from these witnesses was relevant to the issue of whether the defendants had actual or constructive notice of the hazardous condition which allegedly caused the plaintiff’s injuries. Moreover, the probative value of this evidence was not substantially outweighed by any danger that it would unfairly prejudice the respondents (see generally Maiorani v Adesa Corp., 83 AD3d 669, 672). Accordingly, the matter must be remitted to the Supreme Court, Kings County, for a new trial.

The plaintiff’s remaining contentions either are without merit or need not be reached in light of our determination.

ANGIOLILLO, J.P., DICKERSON, HALL and ROMAN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Batista v City of New York            2011-06220         2012 NY Slip Op 08471    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

RANDALL T. ENG, P.J.

ANITA R. FLORIO

SANDRA L. SGROI

ROBERT J. MILLER, JJ.

2011-06220

2011-08474

(Index No. 22905/04)

[*1]Arelis Batista, plaintiff-appellant,

v

City of New York, et al., respondents, Casilda Torres, etc., defendant- appellant, et al., defendant. Arelis Batista, appellant, City of New York, et al., respondents, et al., defendant. (Action No. 1) (Appeal Nos. 1 and 2) 2011-07508 Casilda Torres, etc., appellant, City of New York, et al., respondents. (Action No. 2) (Appeal No. 3) (Index No. 8378/06)

Talkin, Muccigrosso & Roberts, LLP, New York, N.Y. (Mark

Muccigrosso and Andrew Muccigrosso of counsel), for plaintiff-

appellant in Appeal No. 1 and appellant in Appeal No. 2.

Morris Duffy Alonso & Faley, New York, N.Y. (Anna J.

Ervolina and Andrea M. Alonso of counsel),

for defendant-appellant in Appeal No.

1 and respondent Casilda Torres in

Appeal No. 2.

Scott R. Housenbold, New York, N.Y., for appellant in Appeal

No. 3.

White Fleischner & Fino, LLP, New York, N.Y. (Jason S.

Steinberg of counsel), for respondent

City of New York.

London & Fischer, New York, N.Y. (James Walsh and Portia

Reid of counsel), for respondents

Welsbach Electric Corp., Welsbach

Corporation, Welsbach Electric Corp.

of L.I., Welsbach Light Company, and

“”Welsbach”” Donlen Corporation in

Appeal Nos. 1 and 2, and respondents

Welsbach Electric Corp. and Donlen

Corporation in Appeal No. 3.

DECISION & ORDER [*2]

In two related actions, inter alia, to recover damages for personal injuries and wrongful death, which were joined for trial, (1) Casilda Torres, a defendant in Action No. 1 and the plaintiff in Action No. 2, appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Kerrigan, J.), entered May 27, 2011, as granted that branch of the motion of the defendants Welsbach Electric Corp., Welsbach Corporation, Welsbach Electric Corp. of L.I., Welsbach Light Company, and “”Welsbach”” Donlen Corporation which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against them in Action No. 1, (2) Arelis Batista, the plaintiff in Action No. 1, and Casilda Torres, a defendant in Action No. 1 and the plaintiff in Action No. 2, separately appeal, as limited by their respective briefs, from so much of a judgment of the same court entered July 18, 2011, as, upon the order, granting that branch of the motion of the defendants Welsbach Electric Corp., Welsbach Corporation, Welsbach Electric Corp. of L.I., Welsbach Light Company, and “”Welsbach”” Donlen Corporation which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against them in Action No. 1 and granting that branch of the cross motion of the defendant City of New York which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against it in Action No. 1, is in favor of the defendants Welsbach Electric Corp., Welsbach Corporation, Welsbach Electric Corp. of L.I., Welsbach Light Company, “”Welsbach”” Donlen Corporation, and the City of New York dismissing the complaint and all cross claims insofar as asserted against them in Action No. 1, and (3) Casilda Torres separately appeals, as limited by her briefs, from so much of an order of the same court entered June 7, 2011, as granted that branch of the motion of the defendants Welsbach Electric Corp. and Donlen Corporation which was for summary judgment dismissing the complaint insofar as asserted against them in Action No. 2 and granted that branch of the cross motion of the defendant City of New York which was for summary judgment dismissing the complaint insofar as asserted against it in Action No. 2. The notice of appeal of Arelis Batista from the order entered May 27, 2011, is deemed to be a notice of appeal from the judgment entered July 18, 2011 (see CPLR 5512[a]).

ORDERED that the appeals by Casilda Torres from so much of the order entered May 27, 2011, as granted that branch of the motion of the defendants Welsbach Electric Corp., Welsbach Corporation, Welsbach Electric Corp. of L.I., Welsbach Light Company, and “”Welsbach”” Donlen Corporation which was for summary judgment dismissing the complaint insofar as asserted against them in Action No. 1, and from so much of the judgment entered July 18, 2011, as dismissed the complaint insofar as asserted against those defendants in Action No. 1 are dismissed, as she is not aggrieved by those portions of the order and the judgment (see CPLR 5511; Mixon v TBV, Inc., 76 AD3d 144); and it is further,

ORDERED that the appeal by Arelis Batista from so much of the judgment entered July 18, 2011, as dismissed all cross claims asserted against the defendants Welsbach Electric Corp., Welsbach Corporation, Welsbach Electric Corp. of L.I., Welsbach Light Company, and “”Welsbach”” Donlen Corporation in Action No. 1 is dismissed, as she is not aggrieved by those portions of the judgment (see CPLR 5511); and it is further,

ORDERED that the appeal by Casilda Torres from so much of the order entered May 27, 2011, as granted that branch of the motion of the defendants Welsbach Electric Corp., Welsbach Corporation, Welsbach Electric Corp. of L.I., Welsbach Light Company, and “”Welsbach”” Donlen Corporation which was for summary judgment dismissing all cross claims insofar as asserted against them in Action No. 1 is dismissed, as the right of direct appeal therefrom terminated with the entry of the judgment entered July 18, 2011 (see Matter of Aho, 39 NY2d 241, 248); and it is further,

ORDERED that the order entered June 7, 2011, is affirmed insofar as appealed from; and it is further,

ORDERED that the judgment entered July 18, 2011, is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the defendant City of New York and [*3]the defendants Welsbach Electric Corp., Welsbach Corp., Welsbach Electric Corp. of L.I., Welsbach Light Company, and “”Welsbach”” Donlen Corporation appearing separately and filing separate briefs, payable by the appellants.

Shortly after midnight on July 16, 2003, employees of the Welsbach Electric Corp. were dispatched to remove a downed light pole on the Jackie Robinson Parkway near Woodhaven Boulevard in Queens. The workers stopped their construction trucks near the downed light pole, closed off the right lane of the westbound parkway with cones, and activated a blinking yellow merge arrow on one of their trucks. Vladimir Magliore was driving his van westbound in the right lane when he observed the cones about three car lengths ahead of him, and began to apply his brakes. Unable to merge left because of traffic, Magliore brought his van to a complete stop within the closed-off section of the right lane, approximately 10 to 15 feet behind the truck with the blinking arrow. The van had been stopped for about three seconds when it was struck in the rear by a motorcycle operated by the decedent, Luis Torres. The decedent was killed in the accident, and his passenger, Arelis Batista, was injured.

Following the accident, Batista commenced an action to recover damages for personal injuries against the City of New York. She also commenced a separate action against, among others, Welsbach Electric Corp., Welsbach Corporation, Welsbach Electric Corp. of L.I., and Welsbach Light Company (hereinafter collectively the Welsbach defendants), Magliore, and Casilda Torres, as adminstratrix of the decedent’s estate. Batista’s actions were thereafter consolidated (hereinafter Action No. 1).

Casilda Torres, as administratrix of the decedent’s estate and individually, commenced an action to recover damages for, inter alia, wrongful death, against the City of New York and Magliore. Magliore moved for summary judgment dismissing the complaint in that action insofar as asserted against him. In an order dated July 12, 2005, the Supreme Court granted Magliore’s motion, concluding that he had made a prima facie showing of his entitlement to judgment as a matter of law by offering evidence that his van was fully stopped for three seconds before it was struck by the decedent’s motorcycle, and that in opposition, Torres had failed to raise a triable issue of fact. Torres then commenced a separate action to recover damages for, among other things, wrongful death, against Welsbach Electric Corp. and Donlen Corporation (hereinafter together also the Welsbach defendants), which was consolidated with her pending action against the City (hereinafter Action No. 2). Action No. 1 and Action No. 2 were thereafter joined for trial.

Magliore subsequently moved for summary judgment dismissing the complaint and all cross claims insofar asserted against him in Action No. 1, and in an order dated December 7, 2009, the Supreme Court granted the motion, concluding that the rear-end collision with a stopped vehicle established the decedent’s negligence, and that Batista had failed to present a non-negligent explanation to rebut the presumption of negligence that arises from such a collision, or raise a triable issue of fact as to whether Magliore came to a sudden stop or was otherwise comparatively negligent.

After discovery was completed, the Welsbach defendants moved, inter alia, for summary judgment dismissing the complaint and all cross claims insofar as asserted against them in Action No. 1 and Action No. 2, and the City cross-moved, inter alia, for summary judgment dismissing the complaint and all cross claims insofar as asserted against it in both actions. In support of their motions for summary judgment in both actions, the Welsbach defendants contended that while the allegedly negligent lane closure might have furnished the occasion for the accident, it was not a proximate cause of the accident, which did not occur until three seconds after Magliore’s van came to a complete stop. The City similarly contended that the lane closure was not a proximate cause of the accident, and additionally claimed that the prior court orders awarding summary judgment to Magliore precluded Batista and Torres from relitigating the issue of whether the accident had been caused solely by the decedent’s negligence. In opposition, both Batista and Torres relied upon the affidavit of an engineer who opined that the failure to close off the right lane with a sufficient length of cones, and with cones that had reflectorized stripes, was a proximate cause of the accident. [*4]

In an order entered May 27, 2011, the Supreme Court granted that branch of the Welsbach defendants’ motion and that branch of the City’s cross motion which were for summary judgment dismissing the complaint and all cross claims insofar as asserted against them in Action No. 1. The court concluded that the allegedly negligent closing off of the roadway was not a proximate cause of the accident, and that the prior orders awarding summary judgment to Magliore had preclusive effect on the issue of whether the decedent’s negligence was the sole proximate cause of the accident. In a separate order entered June 7, 2011, the court granted that branch of the Welsbach defendants’ motion and that branch of the City’s cross motion which were for summary judgment dismissing the complaint and all cross claims insofar as asserted against them in Action No. 2, on essentially identical grounds.

Initially, the Supreme Court erred in finding, in essence, that the doctrine of collateral estoppel precluded Batista and Torres from litigating the issues of whether the Welsbach defendants and the City were negligent, and whether their alleged negligence was a proximate cause of the accident (see Respass v City of New York, 288 AD2d 286, 286-287). Although the prior orders awarding summary judgment to Magliore are conclusive on the issue of whether he was free from negligence in the happening of the accident, Batista and Torres did not have a full and fair opportunity to litigate the issues of whether the Welsbach defendants and the City were negligent, and whether their alleged negligence was a proximate cause of the accident, in opposing Magliore’s motions (see Kaufman v Eli Lilly & Co., 65 NY2d 449).

However, the Supreme Court nevertheless properly granted those branches of the motions of the Welsbach defendants and those branches of the cross motions of the City which were for summary judgment dismissing the complaint and all cross claims insofar as asserted against them on the ground that their alleged negligence was not a proximate cause of the accident. In support of their respective motions, the Welsbach defendants and the City submitted uncontroverted evidence establishing that, upon observing the cones closing off the right lane, Magliore brought his van to a complete stop 10 to 15 feet behind the truck with the blinking arrow, and that his van was struck in the rear by the decedent’s motorcycle approximately three seconds later. Under these circumstances, even if the manner in which the Welsbach defendants’ workers closed off the right lane of the parkway was negligent, it merely furnished the condition for the subsequent rear-end collision (see Sheehan v City of New York, 40 NY2d 496, 502; Jablonski v Jakaitis, 85 AD3d 969, 970; Morales v Cox, 74 AD3d 922; Remy v City of New York, 36 AD3d 602, 603; Saviano v City of New York, 5 AD3d 581, 582), and was not a proximate cause of the accident, which was caused solely by the decedent’s negligence (see Blasso v Parente, 79 AD3d 923, 925; Doria v Cassamajor, 36 AD3d 752, 753; Hyeon Hee Park v Hi Taek Kim, 37 AD3d 416, 417). In opposition to the prima facie showing of the Welsbach defendants and the City, Batista and Torres failed to raise a triable issue of fact. Accordingly, the Supreme Court properly entered judgment in favor of the Welsbach defendants and the City in Action No. 1, and properly granted those branches of the Welsbach defendants’ motion and the City’s cross motion which were for summary judgment dismissing the complaint insofar as asserted against each of them in Action No. 2.

ENG, P.J., FLORIO, SGROI and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Bicounty Brokerage Corp. v Burlington Ins. Co.   2011-11645         2012 NY Slip Op 08472    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

MARK C. DILLON, J.P.

JOHN M. LEVENTHAL

LEONARD B. AUSTIN

ROBERT J. MILLER, JJ.

2011-11645

(Index No. 3017/03)

[*1]Bicounty Brokerage Corp., respondent,

v

Burlington Insurance Company, et al., defendants, Buckingham Badler Associates, appellant.

Traub Lieberman Straus & Shrewsberry, LLP, Hawthorne, N.Y.

(Christopher Russo and Lisa L. Shrewsberry of counsel), for

appellant.

DECISION & ORDER

In an action, inter alia, for a judgment declaring that the defendant Burlington Insurance Company is obligated to defend and indemnify the plaintiff’s client, nonparty P & T Contracting Corp., in certain underlying personal injury actions, and to recover damages from the defendant Buckingham Badler Associates for negligence based on the failure to procure insurance, the defendant Buckingham Badler Associates appeals from so much of an order of the Supreme Court, Suffolk County (Whelan, J.), dated August 6, 2010, as denied its cross motion, denominated as one to clarify an order of the same court dated March 5, 2010, which, inter alia, granted those branches of the motion of the defendants Burlington Insurance Company which were, in effect, for summary judgment declaring that the defendant Burlington Insurance Company is not obligated to defend or indemnify nonparty P & T Contracting Corp. with regard to eight of the underlying actions, but which was, in actuality, one for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order dated August 6, 2010, is affirmed insofar as appealed from, without costs or disbursements.

The defendant Buckingham Badler Associates (hereinafter Buckingham) was a surplus lines wholesale broker with whom the defendant Burlington Insurance Company (hereinafter Burlington) had contracted to act as a general managing agent. In or around November 2001, nonparty P & T Contracting Corp. (hereinafter P & T) retained the plaintiff, Bicounty Brokerage Corp. (hereinafter Bicounty), to procure commercial general liability insurance. Bicounty contacted a Buckingham employee with whom it had dealt on a regular basis, and submitted an application for a policy that would provide the requested coverage. Thereafter, Bicounty received from the Buckingham employee what purported to be a document binding an insurance policy on behalf of Burlington, and providing coverage to P & T for the period from November 30, 2001, through November 30, 2002, and naming the City of New York as an additional insured. However, after a personal injury action was commenced against the City regarding a slip-and-fall accident in P & T’s work area, Burlington denied the City’s claim on the ground that a search of its records revealed that no such policy had been issued. [*2]

Bicounty commenced this action seeking, inter alia, a judgment declaring that Burlington is obligated to defend and indemnify P & T in several underlying personal injury actions, and to recover damages against Buckingham for its negligence in failing to procure insurance coverage, as set forth in the binder issued by Buckingham. Thereafter, nine additional actions were commenced against P & T during the period in which the insurance policy was to have been in effect.

After the filing of a note of issue in the instant action, Burlington timely moved for summary judgment, inter alia, declaring that it was not obligated to defend or indemnify P & T or the City in the underlying personal injury actions. Buckingham did not, at that time, cross-move for summary judgment. In an order dated March 5, 2010 (hereinafter the March 5 order), the Supreme Court granted those branches of Burlington’s motion which were, in effect, for summary judgment declaring that it was not obligated to defend or indemnify P & T or the City with regard to eight of the underlying actions, based on Bicounty’s failure to provide timely notice of those claims.

Thereafter, Burlington moved for leave to reargue those branches of its prior motion which had been denied by the Supreme Court. Buckingham cross-moved for an order “”clarifying the order of the Court dated March 5, 2010,”” arguing that the previous order was “”ambiguous because it did not expressly state that [Buckingham] is entitled to the same relief granted to Burlington.”” Buckingham argued that, since the court had found that the proximate cause of Bicounty’s damages with regard to eight of the underlying actions was Bicounty’s own negligence in providing late notice, Buckingham could not be found liable for its own alleged failures to procure insurance covering the claims that are the subjects of the underlying actions. In an order dated August 6, 2010, the Supreme Court denied both Burlington’s motion and Buckingham’s cross motion on the merits. Buckingham appeals from so much of the order dated August 6, 2010, as denied its cross motion. We affirm, albeit on grounds that were argued to the Supreme Court and to this Court, but not relied upon by the Supreme Court.

Buckingham’s cross motion, while denominated as one to “”clarify”” the March 5 order, was, in effect, an untimely cross motion for summary judgment (see CPLR 3212[a]). Generally, a cross motion for summary judgment made more than 120 days after the filing of a note of issue may be considered on its merits if there is a timely pending motion for summary judgment made by another party on nearly identical grounds (see Grande v Peteroy, 39 AD3d 590, 591-592; Bressingham v Jamaica Hosp. Med. Ctr., 17 AD3d 496, 497; Boehme v A.P.P.L.E., A Program Planned for Life Enrichment, 298 AD2d 540; Miranda v Devlin, 260 AD2d 451). Here, however, Buckingham’s cross motion, in effect, for summary judgment was not responsive to a timely, pending motion for summary judgment and, therefore, the Supreme Court was without authority to consider it on its merits (see Brill v City of New York, 2 NY3d 648, 650-651).

Buckingham’s remaining contentions have been rendered academic by our determination.

DILLON, J.P., LEVENTHAL, AUSTIN and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Bisogno v Borsa                2011-05356         2012 NY Slip Op 08473    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

ANITA R. FLORIO, J.P.

JOHN M. LEVENTHAL

LEONARD B. AUSTIN

JEFFREY A. COHEN, JJ.

2011-05356

2011-06216

(Index No. 102110/10)

[*1]Patrick F. Bisogno, appellant,

v

Lilas Borsa, et al., respondents. Saul Fellus, Brooklyn, N.Y., for appellant.

Kaufman Dolowich Voluck & Gonzo, LLP, Woodbury, N.Y.

(Brett A. Scher and Jonathan B. Isaacson of counsel), for

respondents.

DECISION & ORDER

In an action, inter alia, to recover damages for defamation, the plaintiff appeals from (1) an order of the Supreme Court, Richmond County (McMahon, J.), dated March 28, 2011, which granted the defendants’ motion pursuant to CPLR 3211(a) to dismiss the complaint, and (2) a judgment of the same court entered April 28, 2011, which, upon the order, is in favor of the defendants and against him dismissing the complaint.

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the judgment is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the respondents.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).

“”Statements made by parties, attorneys, and witnesses in the course of a judicial or quasi-judicial proceeding are absolutely privileged, notwithstanding the motive with which they are made, so long as they are material and pertinent to the issue to be resolved in the proceeding”” (Kilkenny v Law Off. of Cushner & Garvey, LLP, 76 AD3d 512, 513; see Wiener v Weintraub, 22 NY2d 330; Sinrod v Stone, 20 AD3d 560, 561). Here, the allegedly defamatory statements were made in the course of either a judicial or quasi-judicial proceeding and, as a matter of law, were material and pertinent to the issue to be resolved therein (see Kilkenny v Law Off. of Cushner & Garvey, LLP, 76 AD3d at 513). Accordingly, the Supreme Court properly determined that those statements were absolutely privileged (see Wiener v Weintraub, 22 NY2d at 331-332; Sinrod v Stone, 20 AD3d at 561). Therefore, the Supreme Court properly granted that branch of defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging defamation. [*2]

The plaintiff’s remaining contentions are without merit.

FLORIO, J.P., LEVENTHAL, AUSTIN and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Brennan v Salkow            2011-04540         2012 NY Slip Op 08474    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

PETER B. SKELOS, J.P.

RUTH C. BALKIN

THOMAS A. DICKERSON

SYLVIA HINDS-RADIX, JJ.

2011-04540

2012-02661

(Index No. 7447/07)

[*1]Thomas Brennan, et al., appellants,

v

Maria Salkow, respondent.

Kitson & Schuyler LLP, Croton-on-Hudson, N.Y. (Peter Schuyler

and Roseann K. Schuyler of counsel), for appellants.

DECISION & ORDER

In an action pursuant to RPAPL article 15 to compel the determination of a claim to certain real property, in which the plaintiffs sought, inter alia, a judgment declaring that the plaintiffs have an easement by implication or necessity over the subject property, the plaintiffs appeal (1), as limited by their brief, from so much of a judgment of the Supreme Court, Westchester County (Goethels, Ct. Atty. Ref.), entered March 25, 2011, as, upon the parties’ stipulation that the matter be referred to a court attorney referee to hear and determine, and upon evidentiary submissions and oral argument, adjudged that the plaintiffs are not entitled to an easement of ingress or egress over the subject property, and (2) from an order of the same court entered February 16, 2012, which denied their motion pursuant to CPLR 5015(a)(3) to vacate the judgment.

ORDERED that the judgment entered March 25, 2011, is affirmed insofar as appealed from, without costs or disbursements; and it is further,

ORDERED that the order entered February 16, 2012, is affirmed, without costs or disbursements.

Contrary to the plaintiffs’ contention, the record does not show that the subject property benefits from an easement implied by grant. “”[W]hen property is described in a conveyance with reference to a subdivision map showing streets abutting the lot conveyed, easements in the private streets appurtenant to the lot generally pass with the grant”” (Bogan v Town of Mt. Pleasant, 278 AD2d 264, 264-265; see H.S. Farrell, Inc. v Formica Constr. Co., Inc., 41 AD3d 652, 654; Nassau Point Prop. Owners Assn., Inc. v Tirado, 29 AD3d 754, 757). In addition, in general, a “”deed describing the land being conveyed as bounded by a road owned by the grantor creates an easement by implication in that road”” (H.S. Farrell, Inc. v Formica Constr. Co., Inc., 41 AD3d at 654), “”unless the intention of the parties is to the contrary,”” based on the circumstances (Cashman v Shutter, 226 AD2d 961, 962, quoting Heim v Conroy, 211 AD2d 868, 870; see Glennon v Mayo, 221 AD2d 504, 505).

Here, contrary to the plaintiffs’ contention, the mere descriptive reference to a “”right-of-way”” in a 1966 deed to the plaintiffs’ predecessor did not give rise to an easement by implied [*2]grant benefitting the plaintiffs’ property (see Palma v Mastroianni, 276 AD2d 894, 894-895; see also Michalski v Decker, 16 AD3d 469). The plaintiffs’ argument regarding an easement implied from a 1920 grant of part of their property is without merit (see Palma v Mastroianni, 276 AD2d at 894-895; see also Michalski v Decker, 16 AD3d 469).

Further, as the Supreme Court determined, the plaintiffs failed to establish the existence of an easement implied from preexisting use upon severance of title (see Sadowski v Taylor, 56 AD3d 991, 993-994; Beretz v Diehl, 302 AD2d 808, 810-811) or the existence of an easement by necessity (see Silvercrest v St. Christopher-Ottile, 194 AD2d 720, 721).

The Supreme Court did not err in denying the plaintiffs’ motion pursuant to CPLR 5015(a)(3) to vacate the judgment based on fraud, misrepresentation, or other misconduct, as the plaintiffs failed to present any evidence of fraud, misrepresentation, or other misconduct by the defendant (see CPLR 5015; Tornheim v Blue & White Food Prods. Corp., 88 AD3d 869, 869; Abacuus Real Estate Fin. Co. v P.A.R. Constr. & Maintenance Corp., 128 AD2d 821).

SKELOS, J.P., BALKIN, DICKERSON and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Breytman v Schechter   2011-08689         2012 NY Slip Op 08475    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

REINALDO E. RIVERA, J.P.

CHERYL E. CHAMBERS

L. PRISCILLA HALL

PLUMMER E. LOTT, JJ.

2011-08689

2011-10834

2011-10837

2011-10840

(Index No. 1719/09)

[*1]Alexander Breytman, appellant,

v

Roberta S. Schechter, as executor of the estate of Donald Schechter, et al., respondents, et al., defendant. Alexander Breytman, Brooklyn, N.Y., appellant pro se.

Catalano Gallardo & Petropoulos, LLP, Jericho, N.Y. (Matthew

K. Flanagan and Jennifer B. Ettenger of counsel), for respondents.

DECISION & ORDER

In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals (1), as limited by his brief, from so much of an order of the Supreme Court, Kings County (Schack, J.), dated February 8, 2011, as granted the motion of the defendants Roberta S. Schechter, as executor of the estate of Donald Schechter, and Donald Schechter, P.C., for summary judgment dismissing the complaint insofar as asserted against them, and to enjoin him from commencing any further actions against the defendants Roberta S. Schechter, as executor of the estate of Donald Schechter, and Donald Schechter, P.C., without approval of the “”appropriate Administrative Justice or Judge,”” (2) from a judgment of the same court dated April 28, 2011, entered upon the order dated February 8, 2011, (3), as limited by his brief, from so much of an order of the same court dated June 14, 2011, as denied those branches of his motion which were for leave to reargue his opposition to the motion of the defendants Roberta S. Schechter, as executor of the estate of Donald Schechter, and Donald Schechter, P.C., among other things, for summary judgment dismissing the complaint insofar as asserted against them, and for recusal, and (4) from an order of the same court dated July 22, 2011, which, after a hearing, directed the plaintiff to pay sanctions in the sums of $1,700 to the defendants Roberta S. Schechter, as executor of the estate of Donald Schechter, and Donald Schechter, P.C., and $2,500 to the Lawyers’ Fund for Client Protection pursuant to 22 NYCRR 130-1.1.

ORDERED that the appeal from the order dated February 8, 2011, is dismissed; and it is further,

ORDERED that the judgment is affirmed; and it is further,

ORDERED that the appeal from so much of the order dated June 14, 2011, as denied that branch of the plaintiff’s motion which was for leave to reargue his opposition to the motion of the defendants Roberta S. Schechter, as executor of the estate of Donald Schechter, and Donald [*2]Schechter, P.C., inter alia, for summary judgment dismissing the complaint insofar as asserted against them is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order dated June 14, 2011, is affirmed insofar as reviewed; and it is further,

ORDERED that the order dated July 22, 2011, is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the defendants Roberta S. Schechter, as executor of the estate of Donald Schechter, and Donald Schechter, P.C.

The appeal from the intermediate order dated February 8, 2011, must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241). The issues raised on the appeal from the order dated February 8, 2011, are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).

In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442). Here, the defendants Roberta S. Schechter, as executor of the estate of Donald Schechter, and Donald Schechter, P.C. (hereinafter together the Schechter defendants), satisfied their prima facie burden of establishing their entitlement to judgment as a matter of law dismissing the causes of action alleging legal malpractice. In opposition thereto, the plaintiff failed to raise a triable issue of fact (see Natale v Samel & Assoc., 308 AD2d 568, 569; Schadoff v Russ, 278 AD2d 222, 223).

As for the remaining causes of action, the Schechter defendants also made a prima facie showing of entitlement to judgment in their favor, in response to which the plaintiff failed to raise a triable issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562).

The plaintiff failed to set forth any proof of the Supreme Court’s bias or prejudice which would support recusal (see Walter v Walter, 62 AD3d 787, 788).

The Supreme Court properly imposed a sanction upon the plaintiff for his frivolous conduct in connection with his motion, inter alia, for leave to reargue his opposition to the Schechter defendants’ motion, among other things, for summary judgment dismissing the complaint insofar as asserted against them, as the plaintiff’s motion was completely without merit in law and was undertaken primarily to harass Roberta S. Schechter (see 22 NYCRR 130-1.1).

Finally, while public policy mandates free access to the courts, “”when a litigant is abusing the judicial process by hagriding individuals solely out of ill will or spite, equity may enjoin such vexatious litigation'”” (Matter of Simpson v Ptaszynska, 41 AD3d 607, 608, quoting Matter of Shreve v Shreve, 229 AD2d 1005, 1006 [internal quotation marks omitted]). Here, the Supreme Court properly directed the plaintiff to seek leave of the “”appropriate Administrative Justice or Judge”” before filing any additional actions against the Schechter defendants (see Matter of Simpson v Ptaszynska, 41 AD3d at 608; Matter of Pignataro v Davis, 8 AD3d 487, 489).

The plaintiff’s remaining contentions are without merit.

RIVERA, J.P., CHAMBERS, HALL and LOTT, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Bruno v Capetola             2012-01948         2012 NY Slip Op 08476    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

ANITA R. FLORIO, J.P.

JOHN M. LEVENTHAL

L. PRISCILLA HALL

SHERI S. ROMAN, JJ.

2012-01948

(Index No. 21597/09)

[*1]Christopher Bruno, respondent,

v

Anthony A. Capetola, et al., appellants.

Anthony A. Capetola, Williston Park, N.Y. (Robert P. Johnson of

counsel), appellant pro se, and for appellant Law Offices of

Anthony A. Capetola.

Elliot S. Martin, Brooklyn, N.Y., for respondent.

DECISION & ORDER

In an action, inter alia, to impose a constructive trust, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated January 30, 2012, as granted the plaintiff’s motion pursuant to CPLR 602 to join for trial in Supreme Court, Kings County, this action and two actions, both entitled Capetola v Bruno, pending in the Supreme Court, Nassau County, under Index Nos. 22123/09 and 22125/09.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff in this action, which was commenced in Supreme Court, Kings County, seeks equitable relief relating to his assignment to the defendants of a note and mortgage that he previously held on certain real property located in Kings County, and notes and mortgages he executed in favor of the defendants relating to two parcels of real property he owned in Nassau County. The defendants asserted a counterclaim seeking to foreclose the mortgage on the property located in Kings County. Subsequent to the commencement of this action, the defendants commenced, in Supreme Court, Nassau County, two actions to foreclose the mortgages on the plaintiff’s Nassau County properties. The plaintiff moved pursuant to CPLR 602 to join for trial in Kings County this action and the two actions pending in the Supreme Court, Nassau County. The Supreme Court granted the plaintiff’s motion, and the defendants appeal.

The Supreme Court did not improvidently exercise its discretion in granting the plaintiff’s motion for a joint trial of the three actions in Supreme Court, Kings County. “”Where common questions of law or fact exist, a motion to consolidate [or for a joint trial] should be granted absent a showing of prejudice to a substantial right by the party opposing the motion”” (Kally v Mount Sinai Hosp., 44 AD3d 1010, 1010; see CPLR 602; Nigro v Pickett, 39 AD3d 720, 721). Consolidation or joint trials are “”favored by the courts in serving the interests of justice and judicial economy”” (Flaherty v RCP Assoc., 208 AD2d 496, 498; see Shanley v Callanan Indus., 54 NY2d 52, 57; Mideal Homes Corp. v L & C Concrete Work, 90 AD2d 789). The plaintiff demonstrated that the issues raised in his action are identical to the defenses and counterclaims he raised in the mortgage foreclosure actions. [*2]

Contrary to the defendants’ contentions, the requirement of CPLR 507 that “”action[s] in which the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property”” be tried in the county in which the property is situated does not prevent joinder of these actions for trial. CPLR 502 provides that “”[w]here, because of joinder of claims or parties, there is a conflict of provisions under this article, the court, upon motion, shall order as the place of trial one proper under this article as to at least one of the parties or claims.”” The legislative history of this provision reveals that it was “”designed to make it clear that where an otherwise proper joinder of claims or parties results in a conflict in the applicable venue provisions, this is not an objection to the joinder and the court may make an appropriate order as to venue”” (1957 Rep of Temp Comm on Cts to Governor and Legis of St of NY, First Prelim Rep of Advisory Comm on Prac and Proc at 17). Thus, denial of the plaintiff’s motion for a joint trial was not required, despite the resulting “”conflict of [venue] provisions”” (CPLR 502).

Additionally, the defendants failed to demonstrate prejudice to a substantial right. The defendants have not demonstrated that, as they claim, they will be unable to file a notice of pendency in Nassau County (see CPLR 6511; see also RPAPL 1331). Further, although certainty of title records is an important consideration (see Craig v Clifton Springs Country Club, 26 AD2d 903; Reichenbach v Corn Exch. Bank Trust Co., 249 App Div 539, 541), a certified copy of any judgment or final order rendered by the Supreme Court, Kings County, affecting the title to, or possession, use, or enjoyment of, the Nassau County properties can be recorded in the office of the recording officer of Nassau County (see Real Property Law § 297-b).

The defendants’ remaining contentions are without merit.

FLORIO, J.P., LEVENTHAL, HALL and ROMAN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Carey v Carey    2011-06197         2012 NY Slip Op 08477    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

PETER B. SKELOS, J.P.

THOMAS A. DICKERSON

L. PRISCILLA HALL

SHERI S. ROMAN, JJ.

2011-06197

2011-06198

(Index No. 13480/09)

[*1]Kenneth Carey, et al., appellants,

v

June Carey, respondent, et al., defendant.

Jason M. Krellenstein, PLLC, South Salem, N.Y., for appellants.

McCarthy Fingar, LLP, White Plains, N.Y. (Robert H. Rosh of

counsel), for respondent.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract and breach of fiduciary duty, the plaintiffs appeal (1) from an order of the Supreme Court, Westchester County (Bellantoni, J.), entered May 26, 2011, and (2), as limited by their brief, from so much of an order of the same court entered June 10, 2011, as denied their motion for summary judgment on the first through seventh causes of action.

ORDERED that the appeal from the order entered May 26, 2011, is dismissed as abandoned; and it is further,

ORDERED that the order entered June 10, 2011, is modified, on the law, (1) by deleting the provision thereof denying that branch of the plaintiffs’ motion which was for summary judgment on so much of the first cause of action, to recover damages for breach of contract, as was predicated on the failure of the defendant June Carey to conduct the business of the John Carey Family Limited Partnership separate and apart from that of her own and to keep the John Carey Family Limited Partnership in good standing under Delaware law, and substituting therefor a provision granting that branch of the plaintiffs’ motion, (2) by deleting the provision thereof denying that branch of the plaintiffs’ motion which was for summary judgment on so much of the fifth cause of action, to recover damages for breach of fiduciary duty, as was predicated on distributions of the assets of the John Carey Family Limited Partnership made by the defendant June Carey for her own benefit prior to October 2008, and substituting therefor a provision granting that branch of the plaintiffs’ motion, and (3) by deleting the provision thereof denying that branch of the plaintiffs’ motion which was for summary judgment on so much of the sixth cause of action as was for a judgment declaring that the defendant June Carey is not entitled to indemnification from the John Carey Family Limited Partnership in connection with this action, and substituting therefor a provision granting that branch of the plaintiffs’ motion; as so modified, the order entered June 10, 2011, is affirmed insofar as appealed from, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings on the complaint and, thereafter, for the entry of a judgment, inter alia, declaring that the defendant June Carey is not entitled to indemnification from [*2]the John Carey Family Limited Partnership in connection with this action; and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs, payable by the defendant June Carey.

In December 1997, the John Carey Family Limited Partnership (hereinafter the partnership) was formed under Delaware law pursuant to a limited partnership agreement executed by John Carey and his son, the defendant Roger Carey. Under the partnership agreement, John and Roger were the general partners as well as the only limited partners. John conveyed two parcels of real property to the partnership, a residence and an office building located in Pleasantville. Thereafter, John assigned a 6% interest in the partnership to each of his children, Roger, the plaintiff Janice Carey, and the plaintiff Kenneth Carey, and a 3% interest each to two grandchildren, the plaintiffs Sherri Carey and Nicole Carey, retaining a 76% interest for himself. Pursuant to the partnership agreement, these assignments of partnership interests made Janice, Kenneth, Sherri, and Nicole (hereinafter collectively the plaintiffs) limited partners in the partnership. The residential property was sold in 1999 for $325,000, and the office building was sold in 2002 for $761,000.

In January 2003, John died and his will bequeathed his 76% interest in the partnership to his second wife, the defendant June Carey. June was also appointed the executor of John’s estate. In July 2003, at the suggestion of an attorney representing June, Roger executed an instrument pursuant to which June was appointed as a general partner and he resigned as a general partner. When June executed the instrument in August 2003, thereby agreeing to be bound by the terms of the partnership agreement, the partnership had approximately $365,935 in its Bank of New York account. At the time of this transfer of authority, the partnership had made significant loans to Roger that remained outstanding.

During the next two years, June made two distributions of the partnership’s assets, a $32,000 distribution to herself and a $10,000 distribution to John’s estate. In November 2005, June withdrew the full balance of the partnership’s Bank of New York account, $326,149.38, placed the money in her personal Sleepy Hollow Bank account, and then placed the money in two separate accounts with TD Ameritrade (hereinafter TDA) and American Funds. The TDA and American Funds accounts were opened in her name and designated individual rather than partnership accounts. Over the course of approximately three years, June made three withdrawals from each account. She withdrew a total of $10,626.14 from the TDA account and transferred that money into her personal Sleepy Hollow Bank account. June also withdrew a total of $35,000 from the American Funds account, including one $30,000 withdrawal that she used to pay for a vacation.

Subsequently, the plaintiffs, individually and derivatively on behalf of the partnership, commenced this action, inter alia, against June to recover damages for, among other things, breach of contract, fraud and conversion, unjust enrichment, and breach of fiduciary duty. The plaintiffs also sought an accounting, as well as declaratory and injunctive relief. In an order entered June 10, 2011, the Supreme Court, inter alia, denied the plaintiffs’ motion for summary judgment on these causes of action, determining that a triable issue of fact existed as to whether two exculpatory provisions in the partnership agreement could relieve June from liability. The plaintiffs appeal.

Under Delaware law, “”limited partnership agreements are to be construed in accordance with their literal terms”” (Matter of Nantucket Is. Assoc. Ltd. Partnership Unitholders Litig., 810 A2d 351, 361 [Del Ch 2002]). Here, section 7.4(d) of the partnership agreement governs a general partner’s liability: “”No General Partner shall be liable to the Partnership or to any of the Partners, in damages or otherwise, for any error of judgment, for any mistake of fact of law [sic], or for any for [sic] other act or omission performed or omitted by the General Partner in connection with the business and affairs of the Partnership, except if such act or omission results from willful misconduct, fraud, bad faith, or similar breach of fiduciary duty, and further except for breaches of contractual obligations or agreements between the General Partners and the Partnership.””

The terms of the two exculpatory provisions relied upon by June, sections 4.4 and 10.3(e) of the partnership agreement, do not relieve her of liability from the plaintiffs’ causes of [*3]action. Section 4.4, entitled “”Interest on and Return of Capital Contributions: Limitation on Liability,”” provides, in relevant part, that “”[t]he General Partners shall not be liable for the return of the capital contributions of the Limited Partners, nor for the return of any Partnership assets.”” By its terms, this provision is applicable only to relieve a general partner of liability for the return of a limited partner’s capital contribution or other asset given to the partnership. Here, the plaintiffs are not seeking the return of any assets in the partnership, but rather, they seek damages, inter alia, for breach of fiduciary duty and breach of contract.

Section 10.3(e), appearing in the article of the partnership agreement governing dissolution and termination, provides that “”[i]f the Partnership is dissolved and the remaining Partners do not elect to continue its business . . . [e]ach Partner shall look solely to the assets of the Partnership for all distributions with respect to the Partnership and its capital contribution thereto and share of Profits and Losses thereof and shall have no recourse therefor (upon dissolution or otherwise) against the General Partner.”” This provision is inapplicable here because the partnership has not been dissolved. Moreover, the provision merely states that a partner shall have no recourse against a general partner with respect to distributions, capital contributions, and profits and losses. It says nothing about damages resulting from a general partner’s willful misconduct, fraud, bad faith, breach of fiduciary duty, or breach of a contractual obligation. Accordingly, neither provision relied upon by June serves as a bar to liability with respect to the plaintiffs’ causes of action at issue here.

With respect to the first cause of action, alleging breach of contract, the plaintiffs established their prima facie entitlement to summary judgment on so much of that cause of action as was predicated on June’s failure to conduct the business of the partnership separate and apart from that of her own, and to keep the partnership in good standing under Delaware law. In this regard, the plaintiffs submitted evidence demonstrating that June moved the partnership’s assets into her personal bank account and then into the TDA and American Funds accounts in her own name, without informing the plaintiffs, in violation of her contractual obligations, inter alia, to conduct the business of the partnership “”separate and apart from that of any General Partner,”” to segregate partnership assets from her own, and to refrain from commingling partnership assets with her own. By taking these actions, June deprived the plaintiffs of their proportional share of the partnership’s assets at the time the funds were removed from the partnership’s account. Furthermore, the plaintiffs demonstrated that June breached her contractual obligation to ensure the continued existence of the partnership in good standing under Delaware law by failing to pay franchise taxes, which the plaintiffs have since paid.

In opposition, June failed to raise a triable issue of fact as to these breaches of her contractual obligations. Accordingly, the Supreme Court should have granted that branch of the plaintiffs’ motion which was for summary judgment on so much of the first cause of action, to recover damages for breach of contract, as was predicated on June’s failure to conduct the business of the partnership separate and apart from that of her own, and to keep the partnership in good standing under Delaware law.

Turning to the breach of fiduciary duty cause of action, contrary to June’s contention, section 7.4(c) of the partnership agreement expressly provides that a general partner owes traditional fiduciary duties of care and loyalty, and the agreement does not otherwise modify or eliminate any aspect of traditional fiduciary duties (see Gotham Partners, L.P. v Hallwood Realty Partners, L.P., 817 A2d 160, 170 [Del 2002]; Miller v American Real Estate Partners, L.P., 2001 WL 1045643, 2001 Del Ch LEXIS 116 [Del Ch]; RJ Assoc. Inc. v Health Payors’ Org. Ltd. Partnership, HPA, Inc., 1999 WL 550350, 1999 Del Ch LEXIS 161, [Del Ch]; cf. Gelfman v Weeden Investors, L.P., 792 A2d 977, 987 [Del Ch]). Under Delaware law, the fiduciary duty of loyalty requires a general partner to “”manage the partnership in the best interests of the partnership and deal fairly with the limited partners”” (McGovern v General Holding, Inc., 2006 WL 1468850, *18, 2006 Del Ch LEXIS 93, *57 [Del Ch]).

Here, the plaintiffs established their prima facie entitlement to judgment as a matter of law on so much of their fifth cause of action, to recover damages for breach of fiduciary duty, as was predicated on June’s distributions of the partnership’s assets for her own benefit prior to October [*4]2008. In support of that branch of their motion, the plaintiffs submitted evidence demonstrating that, prior to October 2008, June made a number of distributions to herself and John’s estate without making distributions to the plaintiffs for their proportional share.

In opposition, June failed to raise a triable issue of fact as to whether she fulfilled her fiduciary duty of loyalty with respect to the distributions made by her for her own benefit (see Alvarez v Prospect Hosp., 68 NY2d 320, 324). Accordingly, the Supreme Court should have granted the aforementioned branch of the plaintiffs’ motion. However, the plaintiffs failed to establish, prima facie, that June breached her fiduciary duty of care or loyalty in failing to pursue and collect Roger’s debts to the partnership.

The plaintiffs also established their prima facie entitlement to judgment as a matter of law on so much of their sixth cause of action as was for a judgment declaring that June is not entitled to indemnification from the partnership in connection with this action. In support of that branch of their motion, the plaintiffs submitted the partnership agreement, which expressly provides that the partnership is not required to indemnify a general partner for damages and expenses suffered as a result of, inter alia, her breach of fiduciary duty or if she illegally gained a financial profit. In opposition, June failed to raise a triable issue of fact.

The plaintiffs’ remaining contentions are without merit.

Since this is, in part, a declaratory judgment action, the matter must be remitted to the Supreme Court, Westchester County, for further proceedings on the complaint and, thereafter, for the entry of a judgment, inter alia, declaring that June is not entitled to indemnification from the partnership in connection with this action (see Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901).

SKELOS, J.P., DICKERSON, HALL and ROMAN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Chang v Chen    2011-07234         2012 NY Slip Op 08478    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

ANITA R. FLORIO, J.P.

RUTH C. BALKIN

L. PRISCILLA HALL

ROBERT J. MILLER, JJ.

2011-07234

(Index No. 5268/08)

[*1]Anna Chang, et al., plaintiffs, David Doo, appellant,

v

John Chen, respondent, et al., defendants. David Doo, New York, N.Y., appellant pro se.

DECISION & ORDER

In a shareholders’ derivative action, inter alia, to recover damages for breach of fiduciary duty, the plaintiff David Doo appeals, as limited by his brief and an order on application of this Court dated February 17, 2012, from so much of an order of the Supreme Court, Queens County (Lane, J.), dated May 3, 2011, as, sua sponte, in effect, directed the dismissal of the amended complaint insofar as asserted against the defendant John Chen.

ORDERED that the appeal is dismissed, without costs or disbursements.

The portion of the order appealed from sua sponte, in effect, directed the dismissal of the amended complaint insofar as asserted against the defendant John Chen. As no appeal lies as of right from that part of an order which does not decide a motion made on notice (see CPLR 5701[a][2]; Mohler v Nardone, 53 AD3d 600; Young v Young, 49 AD3d 720), and since, under the circumstances of this case, we decline to grant leave to appeal (see CPLR 5701[c]), the appeal must be dismissed.

FLORIO, J.P., BALKIN, HALL and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

“Chase Home Fin., LLC v Quinn”                2011-05640         2012 NY Slip Op 08479    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

MARK C. DILLON, J.P.

JOHN M. LEVENTHAL

LEONARD B. AUSTIN

ROBERT J. MILLER, JJ.

2011-05640

(Index No. 21747/07)

[*1]Chase Home Finance, LLC, respondent,

v

Miguel Quinn, et al., appellants. Walter T. Ramsey, Brooklyn, N.Y., for appellants.

Stein, Wiener & Roth, LLP, Carle Place, N.Y. (Jonathan M.

Cohen of counsel), for respondent.

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Miguel Quinn and Blanca Quezada Ahmed appeal from an order of the Supreme Court, Nassau County (Adams, J.), entered April 13, 2011, which denied their motion to vacate a judgment of foreclosure and sale of the same court entered September 5, 2008, upon their default in appearing or answering.

ORDERED that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in denying the appellants’ motion to vacate a judgment of foreclosure and sale. The appellants failed to proffer any evidence that the plaintiff procured the judgment of foreclosure and sale by fraud, misrepresentation, or other misconduct (see CPLR 5015[a][3]; Wells Fargo Bank N.A. v Hornes, 94 AD3d 755). Furthermore, a letter dated January 25, 2011, which was not in existence at the time the judgment of foreclosure and sale was entered, does not meet the criteria for newly discovered evidence pursuant to CPLR 5015(a)(2) (see Coastal Sheet Metal Corp. v RJR Mech. Inc., 85 AD3d 420, 421; Matter of Ayodele Ademoli J., 57 AD3d 668, 669).

The appellants’ remaining contentions are without merit.

DILLON, J.P., LEVENTHAL, AUSTIN and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Chiarello v Rio    2012-03978         2012 NY Slip Op 08480    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

ANITA R. FLORIO, J.P.

JOHN M. LEVENTHAL

LEONARD B. AUSTIN

JEFFREY A. COHEN, JJ.

2012-03978

(Index No. 20512/10)

[*1]Michael Chiarello, etc., et al., plaintiffs-respondents,

v

Frank Rio, et al., defendants third-party plaintiffs- respondents; Encompass Insurance Company of America, third-party defendant-appellant.

Feeney & Associates, PLLC, Hauppauge, N.Y. (Rosa M. Feeney

of counsel), for third-party defendant-appellant.

Devitt Spellman Barrett, LLP, Smithtown, N.Y. (John M. Denby

of counsel), for plaintiffs-respondents.

Wolinsky, Parnell & Montgomery, LLP, Lake Ronkonkoma,

N.Y. (Bruce F. Parnell of counsel), for

defendants third-party plaintiffs-

respondents.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the third-party defendant appeals from an order of the Supreme Court, Suffolk County (Molia, J.), dated January 6, 2012, which denied, with leave to renew, its motion for summary judgment dismissing the third-party complaint, or, in the alternative, for severance of the third-party action from the main action.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying, with leave to renew, that branch of the third-party defendant’s motion which was for summary judgment dismissing the second cause of action in the third-party complaint, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.

On July 18, 2007, the infant plaintiff allegedly was injured while operating an all-terrain vehicle (hereinafter ATV) owned by the defendants third-party plaintiffs, Frank Rio and Lori Rio (hereinafter together the Rios). The infant plaintiff was a guest of the Rios’ teenage son at the Rios’ vacation home, located in Galway, New York. At the time of the incident, the Rios’ vacation home was insured under a policy issued by the third-party defendant, Encompass Insurance Company of America (hereinafter Encompass).

In June 2010, the Rios were served with copies of a summons and verified complaint in an action commenced by the infant plaintiff and his mother. The complaint alleged that the infant plaintiff was injured on the Rios’ premises while operating their ATV, and that the Rios were negligent, inter alia, with respect to the maintenance of their property. [*2]

On July 23, 2010, Encompass received a copy of the summons and complaint from the Rios. By letter dated August 5, 2010, Encompass disclaimed coverage for the plaintiffs’ action on the ground that the Rios failed to notify Encompass of the occurrence within a reasonable time, and that the occurrence fell within certain exclusions of the policy.

The Rios commenced a third-party action against Encompass for indemnification, seeking to recover damages for breach of contract and negligence. After answering the third-party complaint, Encompass moved for summary judgment dismissing the third-party complaint or, in the alternative, for severance of the third-party action from the main action.

The Supreme Court denied Encompass’s motion in its entirety, with leave to renew upon completion of disclosure. Encompass appeals.

The policy that Encompass issued to the Rios recited that Encompass did not have a duty to provide coverage under the policy unless the insured notified it of the occurrence “”as soon as practical.”” Accordingly, notice is a condition precedent to the receipt of benefits under the subject policy (see Sorbara Constr. Corp. v AIU Ins. Co., 11 NY3d 805, 806; Great Canal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d 742, 743; Argo Corp. v Greater N.Y. Mutual Ins. Co., 4 NY3d 332, 339; Courduff’s Oakwood Rd. Gardens & Landscaping Co., Inc. v Merchants Mut. Ins. Co., 84 AD3d 717; McGovern-Barbash Assoc., LLC v Everest Natl. Ins. Co., 79 AD3d 981, 982-983). Since the subject policy was issued before January 17, 2009, which was the effective date of an amendment to the Insurance Law requiring an insurer to establish prejudice in order to effectively disclaim coverage based on late notice of an occurrence, Encompass does not have to establish that it was prejudiced by the failure of the Rios to comply with the notice provision in order to disclaim coverage (see Insurance Law § 3420[c][2][A]; Zimmerman v Peerless Ins. Co., 85 AD3d 1021, 1023; Ponok Realty Corp. v United Natl. Specialty Ins. Co., 69 AD3d 596, 596-597).

“”The insured’s failure to satisfy the notice requirement constitutes a failure to comply with a condition precedent which, as a matter of law, vitiates the contract'”” (Columbia Univ. Press, Inc. v Travelers Indem. Co. of Am., 89 AD3d 667, 667, quoting Argo Corp. v Greater N.Y. Mutual Ins. Co., 4 NY3d at 339; see McGovern-Barbash Assoc., LLC v Everest Natl. Ins. Co., 79 AD3d at 983; Ponok Realty Corp. v United Nat. Specialty Ins. Co., 69 AD3d at 597). Failure or delay in giving notice may be excused if the insured lacked knowledge that the accident had occurred or had a good faith and reasonable belief of his or her nonliability (see Ocean Gardens Nursing Facility, Inc. v Travelers Cos., Inc., 91 AD3d 734, 736; Ponok Realty Corp. v United Natl. Specialty Ins. Co., 69 AD3d at 597). The insured has the burden of establishing that there was a reasonable excuse for the delay (see Ocean Gardens Nursing Facility, Inc. v Travelers Cos., Inc., 91 AD3d at 736; Tower Ins. Co. of N.Y. v Alvarado, 84 AD3d 1354, 1355). The reasonableness of an insured’s good faith belief in nonliability is a matter ordinarily left for trial (see Argentina v Otsego Mut. Fire Ins. Co., 86 NY2d 748, 750; Deso v London & Lancashire Indem. Co. of Am., 3 NY2d 127, 129; St. James Mech., Inc. v Royal & Sunalliance, 44 AD3d 1030, 1031), and will only be determined as a matter of law where the evidence, when construed in favor of the insured, establishes that the belief was inherently unreasonable or formed in bad faith (see Zimmerman v Peerless Ins. Co., 85 AD3d 1021, 1024; Courduff’s Oakwood Rd. Gardens & Landscaping Co., Inc. v Merchants Mut. Ins. Co., 84 AD3d 717; McGovern-Barbash Assoc., LLC v Everest Natl. Ins. Co., 79 AD3d at 983; Ponok Realty Corp. v United Natl. Specialty Ins. Co., 69 AD3d at 597).

Here, Encompass established its prima facie entitlement to judgment as a matter of law by showing that the Rios did not provide it with notice of the infant plaintiff’s accident until three years after the accident had occurred (see Utica First Ins. Co. v Vazquez, 92 AD3d 866, 867; Bigman Bros., Inc. v QBE Ins. Corp., 73 AD3d 1110, 1112). In opposition, however, the Rios raised a triable issue of fact. In an affidavit, Frank Rio stated that the infant plaintiff took and operated the ATV without the Rios’ knowledge, and contrary to their instructions. He also averred that, after the accident, they were informed that the infant plaintiff was injured while attempting to traverse a “”sand pit,”” which was not located on their property. Frank Rio further maintained that, after the accident, the infant plaintiff was solely concerned about his own potential liability for property damage to the ATV and for trespassing onto another person’s property, and did not indicate any intent to assert a [*3]claim against the Rios.

In addition, the subject policy excluded coverage for any accident involving the ATV while the ATV was not being operated on the Rios’ property. Given that Frank Rio allegedly warned the infant plaintiff not to drive in the sand pit, which was not on the Rios’ property, and that the infant plaintiff informed Frank Rio that the accident had occurred in the sand pit, the Rios’ opposition raised a triable issue of fact as to whether it was reasonable for them to refrain from reporting the occurrence until they received a copy of the summons and complaint, which, for the first time, put them on notice that the plaintiffs alleged that the accident occurred on their property. Accordingly, the Supreme Court properly denied that branch of Encompass’s motion which was for summary judgment dismissing the first cause of action of the third-party complaint, which sought indemnification and coverage based on an alleged breach of contract.

However, the Supreme Court improperly denied that branch of Encompass’s motion which was for summary judgment dismissing the second cause of action of the third-party complaint, which sought coverage and indemnification based on alleged negligence. A claim founded on breach of contract does not give rise to an action in tort unless a legal duty independent of the contract has been violated (see Abacus Fed. Sav. Bank v ADT Sec. Servs., Inc., 18 NY3d 675, 685; Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 389; Weinstein v Natalie Weinstein Design Assocs., Inc., 86 AD3d 641, 643). In separating tort claims from contract claims, the courts have “”considered the nature of the injury, the manner in which the injury occurred and the resulting harm”” (Sommer v Federal Signal Corp., 79 NY2d 540, 552). Here, the Rios, in their second cause of action, do not seek damages separate from those arising from Encompass’s alleged breach of its contractual obligations under the insurance policy. Accordingly, the Supreme Court should have granted that branch of Encompass’s motion which was for summary judgment dismissing that cause of action.

Further, the Supreme Court providently exercised its discretion in denying that branch of Encompass’s motion which, in the alternative, sought severance of the third-party action from the main action. The grant or denial of a request for severance is a matter of judicial discretion, which should not be disturbed on appeal absent a showing of prejudice to a substantial right of the party seeking severance (see Bentoria Holdings, Inc. v Travelers Indem. Co., 84 AD3d 1135, 1137, revd on other grounds,NY3d, 2012 NY Slip Op 07141 [2012]; Naylor v Knoll Farms of Suffolk County, Inc., 31 AD3d 726, 727). Although Encompass established the potential for prejudice since the issue of insurance coverage might be raised in the context of the underlying personal injury action (see Christensen v Weeks, 15 AD3d 330, 331-332; Schorr Bros. Dev. Corp. v Continental Ins. Co., 174 AD2d 722), that prejudice was outweighed by the possibility of inconsistent verdicts in the event that the actions were tried separately, specifically with respect to the issue of whether the accident occurred on the Rios’ property, an issue common to both actions (see Pierre-Louis v DeLonghi Am., Inc., 66 AD3d 855, 855). Any “”prejudice to [Encompass] can be mitigated by the trial court with the appropriate jury instructions”” (id. at 856).

Encompass’s remaining contentions are without merit.

FLORIO, J.P., LEVENTHAL, AUSTIN and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

“Congregation Beth Medrosh of Monsey, Inc. v Rolling Acres Chestnut Ridge, LLC”           2011-09209         2012 NY Slip Op 08481    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

REINALDO E. RIVERA, J.P.

DANIEL D. ANGIOLILLO

CHERYL E. CHAMBERS

SHERI S. ROMAN, JJ.

2011-09209

(Index No. 1022/10)

[*1]Congregation Beth Medrosh of Monsey, Inc., respondent,

v

Rolling Acres Chestnut Ridge, LLC, et al., defendants, Empire State Bank, N.A., appellant (and a third-party action).

The Dorf Law Firm, LLP, Mamaroneck, N.Y. (Jonathan B.

Nelson of counsel), for appellant.

Isabel L. Becker, LLC, New City, N.Y. (James E. Sterns of

counsel), for respondent.

DECISION & ORDER

In an action to foreclose a mortgage and, in effect, for a judgment declaring the relative priority of mortgages on the subject property, the defendant Empire State Bank, N.A., appeals, as limited by its brief, from so much of an amended order of the Supreme Court, Rockland County (Alfieri, Jr., J.), entered August 19, 2011, as granted that branch of the plaintiff’s motion which was for summary judgment on the amended complaint insofar as asserted against it and denied its cross motion to extend discovery.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the plaintiff’s motion which was for summary judgment on so much of the amended complaint insofar as asserted against the defendant Empire State Bank, N.A., as, in effect, sought a declaration that the plaintiff’s mortgage was entitled to priority over the previously recorded assigned mortgage of the defendant Empire State Bank, N.A., in the sum of $1 million, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, upon searching the record, summary judgment is awarded to the defendant Empire State Bank, N.A., declaring that its mortgage in the sum of $1 million is entitled to priority over the plaintiff’s mortgage, and the matter is remitted to the Supreme Court, Rockland County, for the entry of a judgment, inter alia, declaring that the mortgage of the defendant Empire State Bank, N.A., in the sum of $1 million has priority over the plaintiff’s mortgage, and that plaintiff’s mortgage has priority over the $2,425,000 mortgage of the defendant Empire State Bank, N.A.

In November 2005, the defendants Rolling Acres Chestnut Ridge, LLC, and Rolling Acres Developers, LLC, executed a mortgage note in the sum of $1.2 million. As security for the note, they executed and delivered to the plaintiff a mortgage covering two parcels of property, which was recorded on November 21, 2005. Previously, a $1 million mortgage on the first of the two parcels identified in the plaintiff’s mortgage had been delivered to FKF3, LLC, which was recorded on July 14, 2005. Subsequently, the plaintiff received a payment of $450,000 on the note, leaving [*2]a balance of $750,000, and released the second parcel from the mortgage lien.

On March 11, 2007, FKF3, LLC, assigned its mortgage to the defendant Empire State Bank, N.A. (hereinafter Empire). Two days later, Rolling Acres Chestnut Ridge, LLC, delivered to Empire a new mortgage on the property for $2,425,000, and Empire entered into an agreement consolidating its two mortgages for a total lien of $3,425,000. Empire alleges that in entering these transactions, it relied on the representation of its title insurer, supported by a purported letter from the plaintiff’s treasurer, that the plaintiff’s $750,000 mortgage had been satisfied. However, no satisfaction of mortgage was ever recorded. Empire’s consolidated mortgage was recorded on May 25, 2007.

In May 2009, Empire commenced an action to foreclose on its consolidated mortgage. To settle the matter, in November 2009, Empire accepted a deed in lieu of foreclosure. In January 2010, the plaintiff commenced this action, inter alia, to foreclose on its mortgage. The plaintiff joined Empire as a defendant so as to obtain a declaration that its interest in the property was superior to that of Empire, alleging that Empire’s mortgage interest merged into its ownership interest upon acceptance of the deed in lieu of foreclosure, thereby extinguishing its mortgages. Thereafter, the plaintiff moved, among other things, for summary judgment on the amended complaint insofar as asserted against Empire, and Empire cross-moved to extend discovery. The Supreme Court, inter alia, granted that branch of the plaintiff’s motion which was for summary judgment on the amended complaint insofar as asserted against Empire and denied Empire’s cross motion.

The Supreme Court properly awarded summary judgment to the plaintiff on so much of the amended complaint as, in effect, sought a declaration that Empire’s $2,425,000 mortgage is subordinate to the plaintiff’s previously recorded mortgage. “”The recording of a transaction involving real property provides potential subsequent purchasers [and encumbrancers] with notice of previous conveyances and encumbrances that might affect their interests'”” (Stracham v Bresnick, 76 AD3d 1009, 1010, quoting Andy Assoc. v Bankers Trust Co., 49 NY2d 13, 20). “”If the [encumbrancer] fails to use due diligence in examining the title, he or she is chargeable, as a matter of law, with notice of the facts which a proper inquiry would have disclosed”” (Fairmont Funding v Stefansky, 301 AD2d 562, 564). Here, the plaintiff demonstrated that its mortgage was recorded prior to Empire’s consolidated mortgage and, therefore, Empire had constructive notice of the plaintiff’s prior interest. In opposition, Empire failed to raise a triable issue of fact as to the priority between the plaintiff’s mortgage and its $2,425,000 mortgage. Whether Empire reasonably relied on the letter, purportedly from the plaintiff’s treasurer, stating that the plaintiff’s $750,000 mortgage had been satisfied, is irrelevant to the determination of priority of interests here. No satisfaction of mortgage was recorded.

However, the Supreme Court improperly awarded summary judgment to the plaintiff on so much of the amended complaint as, in effect, sought a declaration that the plaintiff’s mortgage was entitled to priority over Empire’s previously recorded $1 million assigned mortgage. “”As a general rule of law, a mortgage may become merged and extinguished where title to the land and ownership of the mortgage become vested in the same person”” (Cambridge Factors v Thompson, 215 AD2d 427, 427). Nevertheless, the doctrine of merger is disfavored (see Jemzura v Jemzura, 36 NY2d 496, 502; Dunkum v Maceck Bldg. Corp., 256 NY 275, 281), and “”equity will intervene to bar a merger where such was the intent of the mortgagee or if justice so requires,”” in the absence of intervening rights of creditors and third parties (Cambridge Factors v Thompson, 215 AD2d at 427; see Dunkum v Maceck Bldg. Corp., 256 NY at 281; Matter of Long Is. Light. Co. v Commissioner of Taxation & Fin. of State of N.Y., 235 AD2d 637, 638). “”Thus, the determinative issue is whether the owner intended there be a merger, which must be discerned from all the circumstances, including the effect a merger would have on the owner’s interest”” (Matter of Long Is. Light. Co. v Commissioner of Taxation & Fin. of State of N.Y., 235 AD2d 638). Here, the plaintiff submitted no evidence of Empire’s intent to merge its mortgage and ownership interests when it accepted the deed in lieu of foreclosure. Moreover, a merger would injure Empire by subordinating its prior assigned mortgage to the plaintiff’s subsequent mortgage, and the plaintiff would not be unjustly injured if a merger is not recognized, given that it accepted its mortgage [*3]interest with the knowledge that the previously recorded assigned mortgage was superior. Accordingly, justice requires that a merger be prevented here, and, upon searching the record, we award summary judgment to Empire declaring that its $1 million assigned mortgage is entitled to priority over the plaintiff’s mortgage.

Empire also contends that further discovery is required to determine whether the plaintiff’s mortgage is invalid and unenforceable for its failure, as a religious Type B not-for-profit corporation, to obtain leave of the Supreme Court to make the loan in accordance with Not-For-Profit Corporation Law §§ 510 and 511. However, since Empire is not a member of the plaintiff, it lacks standing to challenge the alleged statutory violation (see Congregation Atzei Chaim v 26 Adar N.B. Corp., 27 AD3d 412, 412-413; Matter of Bridge to Spiritual Freedom, 304 AD2d 574; Matter of Friends World Coll. v Nicklin, 249 AD2d 393; see also Female Academy of the Sacred Heart v Doane Stuart School, 91 AD3d 1254, 1256).

Since this is, in part, a declaratory judgment action, the matter must be remitted to the Supreme Court, Rockland County, for the entry of a judgment, inter alia, declaring that Empire’s mortgage in the sum of $1 million has priority over the plaintiff’s mortgage, and that the plaintiff’s

mortgage has priority over Empire’s $2,425,000 mortgage (see Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901).

RIVERA, J.P., ANGIOLILLO, CHAMBERS and ROMAN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Fidan v NAYCI Contr. & Custom Cabinetry Corp. 2009-06365         2012 NY Slip Op 08482    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

RANDALL T. ENG, P.J.

PETER B. SKELOS

MARK C. DILLON

L. PRISCILLA HALL, JJ.

2009-06365

(Index No. 26493/05)

[*1]Hassan Turan Fidan, appellant,

v

NAYCI Contracting & Custom Cabinetry Corporation, respondent.

Loanzon Sheikh, LLC, New York, N.Y. (Tristan C. Loanzon of

counsel), for appellant.

Glenn J. Wurzel, Hempstead, N.Y., for respondent.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from a judgment of the Supreme Court, Queens County (Geller, S.R.), entered April 29, 2009, which, upon a decision of the same court dated March 5, 2009, made after a nonjury trial, is in favor of the defendant and against him on the counterclaim to recover damages for breach of contract in the principal sum of $23,000.

ORDERED that the judgment is modified, on the law and the facts, by reducing the award on the counterclaim from the principal sum of $23,000 to the principal sum of $16,000; as so modified, the judgment is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for the entry of an appropriate amended judgment.

In reviewing a determination made after a nonjury trial, the power of this Court is as broad as that of the trial court, and this Court may render the judgment it finds “”warranted by the facts,”” bearing in mind that in a close case, the trial judge had the advantage of seeing the witnesses and hearing the testimony (Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499). Here, the Supreme Court’s determination that the plaintiff breached his contract with the defendant by not allowing the defendant to complete the renovations of his apartment was warranted by the facts (see Felix Contr. Corp. v Oakridge Land & Prop. Corp., 106 AD2d 488; Austin v Afzal, 24 Misc 3d 128[A]).

However, the Supreme Court erred in calculating that the defendant was entitled to damages on its counterclaim in the principal sum of $23,000. The agreed-upon contract price for the renovation work was the sum of $20,000, and the plaintiff presented documentary proof that he paid the sum of $4,000 to the defendant, leaving an unpaid balance in the sum of $16,000. Under these circumstances, the defendant is entitled to recover the principal sum of $16,000.

The parties’ remaining contentions either are without merit, are improperly raised for the first time on appeal, or need not be reached in light of our determination. [*2]

ENG, P.J., SKELOS, DILLON and HALL, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Five Star Elec. Corp. v Zurich Am. Ins. Co.              2011-09265         2012 NY Slip Op 08483    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

RUTH C. BALKIN, J.P.

SHERI S. ROMAN

SANDRA L. SGROI

JEFFREY A. COHEN, JJ.

2011-09265

(Index No. 34378/09)

[*1]Five Star Electric Corporation, appellant,

v

Zurich American Insurance Company, et al., respondents.

Ochs & Goldberg, LLP, New York, N.Y. (Edwin L. Doernberger

and Gregory D. Podolak of counsel), for appellant.

Mound Cotton Wollan & Greengrass, New York, N.Y. (Philip

C. Silverberg, Daniel Markewich, and

Hilary M. Henkind of counsel), for

respondents.

DECISION & ORDER

In an action to recover damages under a builder’s risk insurance policy, the plaintiff appeals from an order of the Supreme Court, Queens County (Kitzes, J.), entered July 25, 2011, which denied its motion for summary judgment, in effect, on the issue of whether the plaintiff was an additional insured, and granted the defendants’ cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

In February 2007, the plaintiff entered into a subcontract with a general contractor, nonparty Hunt/Bovis Lend Lease Alliance II, to perform electrical work for the CitiField construction project. In connection with the construction project, the owner instituted an “”Owner Controlled Insurance Program”” (hereinafter OCIP), in which the plaintiff did not participate. During the course of the project, the plaintiff’s work allegedly was damaged by the actions of other subcontractors. As a result, the plaintiff commenced this action to recover amounts allegedly due to the plaintiff under a builder’s risk insurance policy issued by the defendants.

Thereafter, the plaintiff moved for summary judgment, in effect, on the issue of whether the plaintiff was an additional insured under the subject builder’s risk insurance policy, arguing, inter alia, that although it did not participate in the OCIP, the builder’s risk insurance policy and the OCIP policies were separate and distinct from one another, and the plaintiff was intended to be covered as an additional insured under the builder’s risk insurance policy. The defendants, in turn, cross-moved for summary judgment dismissing the complaint. In an order entered July 25, 2011, the Supreme Court denied the plaintiff’s motion and granted the defendants’ cross motion. The plaintiff appeals.

“”[A] written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms”” (Greenfield v Philles Records, 98 NY2d 562, 569; see St. John’s Univ., N.Y. v Butler Rogers Baskett Architects, P.C., 92 AD3d 761, 765). Here, the defendants established their prima facie entitlement to summary judgment dismissing the complaint by submitting the builder’s risk insurance policy and the plaintiff’s subcontract, which [*2]demonstrated that the plaintiff was not an additional insured under the builder’s risk policy (cf. Carlisle SoHo E. Trust v Lexington Ins. Co., 49 AD3d 272).

In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff’s contention that builder’s risk insurance was not coverage provided by the OCIP, and that it was not obligated to procure such insurance, is unavailing. The plaintiff’s subcontract provided that the plaintiff “”shall always be responsible to provide insurance coverage,”” and that it “”shall obtain and maintain, at its expense, at least the insurance coverage specified in Exhibit C attached hereto.”” Exhibit C, the OCIP manual, specified the insurance coverage OCIP provided to enrolled members, which included builder’s risk insurance. Thus, the plaintiff was required under the terms of its subcontract to procure and maintain, at its own expense, a builder’s risk insurance policy.

The plaintiff’s remaining contention is without merit.

Accordingly, the Supreme Court properly denied the plaintiff’s motion for summary judgment, and granted the defendants’ cross motion for summary judgment dismissing the complaint.

BALKIN, J.P., ROMAN, SGROI and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Flynn v City of New York               2010-07200         2012 NY Slip Op 08484    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

PETER B. SKELOS, J.P.

THOMAS A. DICKERSON

L. PRISCILLA HALL

SHERI S. ROMAN, JJ.

2010-07200

2011-05781

(Index No. 29059/95)

[*1]William Flynn, appellant-respondent,

v

City of New York, respondent-appellant.

Leahey & Johnson, P.C., New York, N.Y. (Gabriel M. Krausman,

Peter James Johnson, James P. Tenney, Joanne Filiberti, and Peter

James Johnson, Jr., of counsel), for appellant-respondent.

Michael A. Cardozo, Corporation Counsel, New York, N.Y.

(Edward F.X. Hart and Tahirih M.

Sadrieh of counsel), for respondent-

appellant.

DECISION & ORDER

In an action to recover damages for personal injuries, (1) the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Velasquez, J.), dated June 16, 2010, as, in effect, denied that branch of his motion which was pursuant to CPLR 3126 to strike the defendant’s answer, and the defendant cross-appeals, as limited by its brief, from so much of the same order dated June 16, 2010, as, sua sponte, directed it to produce all documents in its possession pertaining to protective clothing for firefighters known as “”bunker gear,”” in accordance with a schedule to be determined by a court-appointed referee, and (2) the plaintiff separately appeals, as limited by his brief, from so much of an order of the same court dated June 2, 2011, as, upon renewal, adhered to its original determination in the order dated June 16, 2010, denying that branch of his motion which was pursuant to CPLR 3126 to strike the defendant’s answer, and the defendant separately cross-appeals, as limited by its brief, from so much of the same order dated June 2, 2011, as, sua sponte, directed it to comply with an order of a court-appointed referee dated July 23, 2010, directing it to produce all documents concerning “”bunker gear,”” and precluding it from introducing at trial any evidence relating to a person identified and described as “”the other Lt. Flynn,”” who is “”not the same Lt. Flynn as plaintiff.””

ORDERED that the appeal and cross appeal from the order dated June 16, 2010, and the cross appeal from the order dated June 2, 2011, are dismissed; and it is further,

ORDERED that the order dated June 2, 2011, is reversed insofar as appealed from, on the facts and in the exercise of discretion, upon renewal, the determination in the order dated June 16, 2010, denying that branch of the plaintiff’s motion which was pursuant to CPLR 3126 to strike the defendant’s answer is vacated, that branch of the motion is thereupon granted, and the matter is remitted to the Supreme Court, Kings County, for an inquest on the issue of damages; and it is further, [*2]

ORDERED that one bill of costs is awarded to the plaintiff.

The appeal from so much of the order dated June 16, 2010, as denied that branch of the plaintiff’s motion which was pursuant to CPLR 3126 to strike the answer must be dismissed, as that portion of the order was superseded by so much of the order dated June 2, 2011, as was made upon renewal. The cross appeals from so much of the order dated June 16, 2010, as, sua sponte, directed the defendant to produce certain documentation and so much of the order dated June 2, 2011, as, sua sponte, directed the defendant to comply with an order of a court-appointed referee dated July 23, 2010, must be dismissed because no cross appeal lies as of right from these portions of the orders dated June 16, 2010, and June 2, 2011, which did not result from motions made on notice, and leave to cross-appeal has not been granted (see Cascardo v Stacchini, _____AD3d_____, 2012 NY Slip Op 07616, *2 [2d Dept 2012]; Faello v Faello, 45 AD3d 728; Warren v Hyman, 19 AD3d 481, 481-482).

“” Generally, the trial court is afforded broad discretion in supervising disclosure and its determination will not be disturbed unless that discretion has been clearly abused . . . However, the Appellate Division is vested with its own discretion and corresponding power to substitute its own discretion for that of the trial court, even in the absence of abuse'”” (Byam v City of New York, 68 AD3d 798, 800, quoting Matter of Astor, 62 AD3d 867, 868 [internal quotation marks omitted]).

Actions should be resolved on the merits wherever possible (see Maiorino v City of New York, 39 AD3d 601, 601). However, the striking of a pleading may be an appropriate sanction where there is a clear showing that the failure to comply with discovery demands is willful or contumacious (see Montemurro v Memorial Sloan-Kettering Cancer Ctr., 94 AD3d 1066, 1066; Byam v City of New York, 68 AD3d at 801). The willful or contumacious character of a party’s conduct can be inferred from the party’s repeated failure to respond to demands or to comply with discovery orders (see Montemurro v Memorial Sloan-Kettering Cancer Ctr., 94 AD3d at 1066).

Here, the willful and contumacious conduct of the defendant, City of New York, can be inferred from its repeated failures—over an extended period of time and without an adequate excuse—to comply with the plaintiff’s discovery demands for the disclosure of “”all”” of the documents in the possession of the New York City Fire Department (hereinafter the FDNY) relating to the FDNY’s determination to provide its members with protective “”bunker gear,”” including documents dated prior to 1990, as well as to comply with several discovery orders mandating such disclosure (see Montemurro v Memorial Sloan-Kettering Cancer Ctr., 94 AD3d at 1066-1067; Pirro Group, LLC v One Point St., Inc., 71 AD3d 654, 655; Byam v City of New York, 68 AD3d at 801). Accordingly, upon renewal, that branch of the plaintiff’s motion which was to strike the defendant’s answer should have been granted. We, thus, remit the matter to the Supreme Court, Kings County, for an inquest on the issue of damages.

In view of our determination, we need not address the parties’ remaining contentions.

SKELOS, J.P., DICKERSON, HALL and ROMAN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Formica v Formica            2011-08629         2012 NY Slip Op 08485    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

REINALDO E. RIVERA, J.P.

MARK C. DILLON

JOHN M. LEVENTHAL

CHERYL E. CHAMBERS, JJ.

2011-08629

(Index No. 16904/09)

[*1]Vittoria Formica, appellant,

v

Cesarino Formica, respondent.

Courten & Villar, PLLC, Hauppauge, N.Y. (Dorothy A. Courten

of counsel), for appellant.

Victor F. Villacara, Patchogue, N.Y., for respondent.

DECISION & ORDER

In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by her brief, from stated portions of a judgment of the Supreme Court, Suffolk County (Kent III, J.), entered August 16, 2011, which, upon, among other things, a decision of the same court dated August 12, 2011, made after a nonjury trial, inter alia, (a) determined that the appreciation in the value of the marital residence constituted the defendant’s separate property, (b) failed to equitably distribute certain personal property, the value of certain bank accounts, and the defendant’s pension and the value of his IRA account, and (c) awarded the defendant an attorney’s fee in the sum of $5,000.

ORDERED that the judgment is affirmed insofar as appealed from, with costs.

“”[I]n order for appreciation in the value of separate property to be deemed marital property subject to equitable distribution, the nontitled spouse must demonstrate the manner in which his [or her] contributions resulted in the increase in value and the amount of the increase which was attributable to his [or her] efforts”” (Embury v Embury, 49 AD3d 802, 804 [citations and internal quotation marks omitted]; see Price v Price, 69 NY2d 8, 18; Imhof v Imhof, 259 AD2d 666, 667). Here, although the appellant does not take issue with the Supreme Court’s determination that the marital residence is the separate property of the defendant, she argues that she is entitled to a portion of the appreciation in its value over the course of the marriage. Contrary to the appellant’s contention, she failed to sustain her burden of demonstrating the manner in which her contributions resulted in the increase in the value of the marital residence over the course of the marriage (see Embury v Embury, 49 AD3d at 804; cf. Imhof v Imhof, 259 AD2d at 667). Accordingly, the Supreme Court properly determined that the appreciation in the value of the marital residence constituted the defendant’s separate property.

With respect to certain personal property and bank accounts, and the defendant’s pension and IRA account, the Supreme Court providently exercised its discretion in evaluating the credibility of the witnesses in making its equitable distribution determination after a nonjury trial, and the court’s assessment of the credibility of the witnesses is entitled to great weight on appeal (see Scher v Scher, 91 AD3d 842, 846; Schwartz v Schwartz, 67 AD3d 989, 990). Under the circumstances here, we decline to disturb the Supreme Court’s determination with respect to the equitable distribution of that property. [*2]

“”It is within the Supreme Court’s sound discretion to determine whether a particular witness is qualified to testify as an expert, and its determination will not be disturbed in the absence of a serious mistake, an error of law, or an improvident exercise of discretion”” (Pignataro v Galarzia, 303 AD2d 667, 667-668; see Riccio v NHT Owners, LLC, 79 AD3d 998, 1000; Hutchinson v Crown Equip. Corp., 48 AD3d 421). An expert is qualified to proffer an opinion if he or she possesses “”the requisite skill, training, education, knowledge, or experience to render a reliable opinion”” (Pignataro v Galarzia, 303 AD2d at 668; see Riccio v NHT Owners, LLC, 79 AD3d at 1000). “”The competence of an expert in a particular subject may derive from long observation and real world experience, and is not dependent upon formal training or attainment of an academic degree in the subject”” (Riccio v NHT Owners, LLC, 79 AD3d at 1000 [internal quotation marks omitted]). Contrary to the appellant’s contention, the Supreme Court providently exercised its discretion in determining that one of the defendant’s witnesses, a certified residential appraiser with more than 10 years of experience, was qualified to testify as an expert with respect to valuation of the parties’ respective residential properties (see Langer v Miller, 305 AD2d 270, 271).

The Supreme Court properly awarded the defendant an attorney’s fee in the sum of $5,000, based on the relative financial circumstances of the parties, the relative merits of their positions at trial, and its finding that the appellant’s actions prolonged the litigation (see Domestic Relations Law § 237[a]; Johnson v Chapin, 12 NY3d 461, 467; Quinn v Quinn, 73 AD3d 887).

The appellant’s remaining contentions are either unpreserved for appellate review or without merit.

RIVERA, J.P., DILLON, LEVENTHAL and CHAMBERS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Forssell v Lerner               2011-03606         2012 NY Slip Op 08486    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

WILLIAM F. MASTRO, J.P.

PLUMMER E. LOTT

LEONARD B. AUSTIN

JEFFREY A. COHEN, JJ.

2011-03606

2012-00470

(Index No. 37077/09)

[*1]Mark Forssell, respondent,

v

Randy Lerner, et al., appellants.

Freshfields Bruckhaus Deringer US LLP, New York, N.Y. (Benito

Romano of counsel), for appellant Randy Lerner.

London Fischer LLP, New York, N.Y. (Bernard London and

Matthew K. Finkelstein of counsel),

for appellant Makita U.S.A., Inc.

Ancona Associates, Mineola, N.Y. (Dustin A. Levine of

counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, (1) the defendant Randy Lerner appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Rebolini, J.), dated February 16, 2011, as denied his motion for summary judgment dismissing the complaint insofar as asserted against him, and the defendant Makita U.S.A., Inc., separately appeals from so much of the same order as denied its motion for summary judgment dismissing the complaint insofar as asserted against it, and (2) the defendant Makita U.S.A., Inc., appeals from so much of an order of the same court dated November 28, 2011, as denied that branch of its motion which was for leave to renew its prior motion.

ORDERED that the orders are affirmed insofar as appealed from, with one bill of costs.

The plaintiff allegedly was injured while working as a carpenter at a construction project on property owned by the defendant Randy Lerner. He alleged in the complaint that he was injured while using his table saw, which he had plugged into an electrical outlet that was also being used to power five other electrical devices. He alleged that the “”overload”” caused a power surge, which caused the table saw to “”skip,”” causing his hand to come in contact with the saw blade.

The plaintiff commenced this action against Lerner, alleging common-law negligence and a violation of Labor Law § 200, and against the defendant Makita U.S.A., Inc. (hereinafter Makita), the manufacturer of the table saw, alleging, among other things, negligence and strict products liability based upon a design defect. In his response to Makita’s interrogatories, the plaintiff claimed, among other things, that the table saw was not equipped with a blade guard when he bought it from a coworker, and that “”[t]he failure to include a blade guard bolted to the table saw constitutes a design defect.”” [*2]

After issue was joined, Makita moved for summary judgment dismissing the complaint insofar as asserted against it, arguing that the saw had been distributed with a blade guard attached, and it could not be held liable for injuries resulting from a subsequent substantial modification of the table saw. Lerner separately moved for summary judgment dismissing the complaint insofar as asserted against him. The Supreme Court denied the motions, and subsequently denied Makita’s motion, inter alia, for leave to renew.

A cause of action sounding in violation of Labor Law § 200 or common-law negligence may arise from dangerous or defective conditions of the premises, or the manner in which the work is performed (see Pilato v 866 U.N. Plaza Assoc., LLC, 77 AD3d 644, 646; Ortega v Puccia, 57 AD3d 54, 61). Further, in rare cases, both theories of liability may be implicated (see Reyes v Wentworth Mgt. Corp., 83 AD3d 47, 50-52). In this case, the plaintiff’s injuries allegedly arose from the manner in which the work was performed, and not from any dangerous or defective condition on the premises (see Cody v State of New York, 82 AD3d 925, 926; Pilato v 866 U.N. Plaza Assoc., LLC, 77 AD3d at 645-646). Where, as here, a claim arises out of the means and methods of the work, a property owner may be held liable for common-law negligence or a violation of Labor Law § 200 only if he or she had “”the authority to supervise or control the performance of the work”” (Ortega v Puccia, 57 AD3d at 61; see Cody v State of New York, 82 AD3d at 927; Pilato v 866 U.N. Plaza Assoc., LLC, 77 AD3d at 646). Contrary to Lerner’s contention, the vague and conclusory assertions in his affidavit in support of his motion were insufficient to make a prima facie showing that he did not have the authority to supervise or control the performance of the plaintiff’s work (see County of Nassau v Velasquez, 44 AD3d 987; McDonald v Sunstone Assoc., 39 AD3d 603, 605; Berchini v Silverite Constr. Co., 289 AD2d 434). Accordingly, Lerner’s motion for summary judgment dismissing the complaint insofar as asserted against him was properly denied, regardless of the sufficiency of the plaintiff’s opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

The Supreme Court also properly denied Makita’s motion for summary judgment dismissing the complaint insofar as asserted against it. “”[A] manufacturer of a product may not be cast in damages, either on a strict products liability or negligence cause of action, where, after the product leaves the possession and control of the manufacturer, there is a subsequent modification which substantially alters the product and is the proximate cause of plaintiff’s injuries”” (Robinson v Reed-Prentice Div. of Package Mach. Co., 49 NY2d 471, 475; see Fernandez v Mark Andy, Inc., 7 AD3d 484, 485). While Makita’s submissions established that the table saw was distributed with a blade guard, there was also evidence that the blade guard was removable and that the table saw was operable without it. Thus, a triable issue of fact exists as to whether the table saw was purposely designed to permit use without the blade guard (see Fernandez v Mark Andy, Inc., 7 AD3d at 485; Eiss v Sears, Roebuck & Co., 275 AD2d 919, 919-920; cf. Masiello v Efficiency Devices, 6 AD3d 672, 673; Wyda v Makita Elec. Works, 232 AD2d 407).

Moreover, that branch of Makita’s subsequent motion which was for leave to renew its motion for summary judgment was properly denied. “”[I]n general, a motion for leave to renew must be based upon new facts not offered on the prior motion that would change the prior determination, and must set forth a reasonable justification for the failure to present such facts on the prior motion”” (Bazile v City of New York, 94 AD3d 929, 930-931 [internal quotation marks omitted]; see CPLR 2221[e]; Ramirez v Khan, 60 AD3d 748, 748). Here, Makita did not demonstrate a reasonable justification for failing to submit the affidavit of its expert on the prior motion (see Bazile v City of New York, 94 AD3d at 931; Ramirez v Khan, 60 AD3d at 748-749). Contrary to Makita’s contention, the affidavit did not address issues which had been raised, sua sponte, by the Supreme Court in its initial order (cf. Wilder v May Dept. Stores Co., 23 AD3d 646, 648).

The parties’ remaining contentions either are without merit or need not be reached in light of our determination.

MASTRO, J.P., LOTT, AUSTIN and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

“Green v Lakeside Manor Home for Adults, Inc.”              2011-08580         2012 NY Slip Op 08487    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

ANITA R. FLORIO, J.P.

RUTH C. BALKIN

L. PRISCILLA HALL

ROBERT J. MILLER, JJ.

2011-08580

(Index No. 104359/07)

[*1]Barry Green, et al., appellants,

v

Lakeside Manor Home for Adults, Inc., et al., respondents. Jeanette Zelhof, New York, N.Y. (Jota Borgmann of counsel), for appellants.

O’Connell and Aronowitz, Albany, N.Y. (Kurt E. Bratten of

counsel), for respondents.

DECISION & ORDER

In an action, inter alia, for injunctive relief and to recover damages for breach of contract, breach of the warranty of habitability, and violations of the federal Fair Housing Act, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Richmond County (Minardo, J.), dated July 6, 2011, as granted the defendants’ motion for summary judgment dismissing the complaint.

ORDERED that the order is modified, on the law, by deleting the provisions thereof granting those branches of the defendants’ motion which were for summary judgment dismissing the first and third causes of action, and substituting therefor provisions denying those branches of the defendants’ motion; as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiffs.

Pursuant to Social Services Law § 461-c(1), “”[e]very operator of an adult care facility . . . shall execute with each applicant for admission a written admission agreement, dated and signed by the operator and the parties to be charged, which shall contain the entire agreement of the parties and such other information as department regulations shall require”” (Social Services Law § 461-c[1]; see 18 NYCRR § 487.5[d][1][i]). “”The admission agreement shall, at a minimum . . . enumerate the services, material, equipment and food required by law or regulation”” (18 NYCRR § 487.5[d][6][iii]).

The plaintiffs are persons with disabilities who are, or were, residents of an adult care facility operated by the defendants in Staten Island. The written admission agreement that each plaintiff entered into with the defendants recited that the “”facility is an adult care facility providing lodging, board, housekeeping, personal care and supervision services to the resident in accordance with New York State Social Services Law and the Regulations of the New York Department of Social Services.”” Each agreement provided that “”[t]he resident . . . agree[s] to pay and the operator agrees to accept the [specified payment amount] in full satisfaction of the services which the operator must provide according to law and regulation.””

In 2007, the plaintiffs commenced this action, asserting three causes of action. The [*2]first cause of action alleged that the defendants breached the written admission agreements by, inter alia, failing to provide adequate telephone service in accordance with the regulations of the New York State Department of Social Services (hereinafter the Department). The applicable regulation provides that “”[a]ll facilities shall . . . have at least one telephone available for outside calls for every 40 residents or portion thereof”” (18 NYCRR § 487.11[l][15]). The second cause of action alleged that the failure to provide the required level of telephone service breached the statutory warranty of habitability (see Social Services Law § 461-c[2-a][a]). The third cause of action alleged that the defendants discriminated against the plaintiffs on account of their disabilities, in violation of the federal Fair Housing Act (42 USC § 3601 et seq.). The plaintiffs alleged that they sustained damages as a result of these violations and sought, inter alia, compensatory and injunctive relief.

The defendants moved for summary judgment dismissing the complaint. In support of their motion, they argued, among other things, that the Social Services Law did not provide the plaintiffs with a private right of action to enforce their admission agreements or the statute’s implied warranty of habitability. Further, the defendants submitted evidence that additional telephones had been installed subsequent to the commencement of this action. The plaintiffs opposed the defendants’ motion and cross-moved for summary judgment in their favor. The Supreme Court granted the defendants’ motion and denied the plaintiffs’ cross motion as academic. The plaintiffs appeal from so much of the order as granted the defendants’ motion.

First, we reject the defendants’ contention that the plaintiffs do not have a private right of action under the Social Services Law for violations of their admission agreements and breaches of the implied warranty of habitability. Social Services Law § 461-c(2-a)(b) expressly provides that “”[a]n action for breach of the warranty of habitability and any violation of a written admission agreement may be maintained in a court of competent jurisdiction by the resident or representative of the resident”” (Social Services Law § 461-c[2-a][b], [L 1994, ch 734, § 1]; see Carrier v Salvation Army, 88 NY2d 298, 304; Henry v Isaac, 214 AD2d 188, 193).

Furthermore, the defendants’ evidentiary submissions did not demonstrate, prima facie, the absence of triable issues of fact as to the cause of action alleging breach of contract. Evidence that the defendants installed additional telephone service after the commencement of this action did not establish that there had been no violation of the regulation, and, by incorporation, the admission agreements, before the action was commenced. Inasmuch as the defendants failed to meet their prima facie burden, that branch of their motion which was for summary judgment dismissing the first cause of action should have been denied without regard to the sufficiency of the plaintiffs’ papers in opposition (see Rush v Swimming Pools by Jack Anthony, Inc., 98 AD3d 728, 730).

Similarly, the defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the third cause of action, which alleged a violation of the federal Fair Housing Act (see 42 USC § 3601 et seq.; hereinafter the FHA). Under the FHA, it is unlawful “”[t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap of . . . that person”” (42 USC 3604[f][2][A]; see Magee v Boston Land Co. Mgmt. Servs., 90 Fed Appx 560, 561 [2d Cir]).

The defendants do not dispute that the plaintiffs are protected by the FHA or that adequate public telephone access constituted a service provided in connection with the rental of the residents’ dwelling units. The defendants contend, however, that the Supreme Court properly granted that branch of their motion which was for summary judgment dismissing that cause of action because there was no evidence that they discriminated against the plaintiffs because of their status as persons with disabilities. The defendants’ own submissions demonstrated the existence of a triable issue of fact as to whether the plaintiffs’ disabilities were a “”motivating factor”” behind the defendants’ alleged failure to provide the mandated level of telephone service (Smith & Lee Assocs. v City of Taylor, 102 F3d 781, 790 [6th Cir], quoting Vil. of Arlington Hgts v Metro. Hous. Dev. Corp., 429 US 252, 270; see Regional Economic Community Action Program v City of Middletown, 294 F3d 35, 49 [2d Cir], cert denied 537 US 813). Consequently, that branch of the defendants’ motion which was for summary judgment dismissing the third cause of action should have been denied [*3]without regard to the sufficiency of the plaintiffs’ papers submitted in opposition (see Rush v Swimming Pools by Jack Anthony, Inc., 98 AD3d at 730).

The parties’ remaining contentions are without merit or need not be addressed in light of our determination.

FLORIO, J.P., BALKIN, HALL and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

“Hendrickson v Philbor Motors, Inc.”      2010-07849         2012 NY Slip Op 08488    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

MARK C. DILLON, J.P.

PLUMMER E. LOTT

SHERI S. ROMAN

JEFFREY A. COHEN, JJ.

2010-07849

(Index Nos. 20507/07, 10700/08)

[*1]Roseanne Hendrickson, et al., plaintiffs,

v

Philbor Motors, Inc., doing business as Hempstead Ford, et al., defendants. (Action No. 1)

William Malone, plaintiff,

v

Philbor Motors, Inc., doing business as Hempstead Ford, et al., defendants, Cooper Tire and Rubber Company, appellant, Rosanne Hendrickson, respondent. (Action No. 2)

Devitt Spellman Barrett, LLP, Smithtown, N.Y. (Diane K. Farrell

and David H. Arntsen of counsel), for appellant.

Andrea G. Sawyers, Melville, N.Y. (Scott W. Driver of

counsel), for respondent.

DECISION & ORDER

In two related actions to recover damages for personal injuries, etc., which were joined for trial, Cooper Tire and Rubber Company, a defendant in both actions, appeals from an order of the Supreme Court, Nassau County (K. Murphy, J.), entered June 22, 2010, which granted the motion of Roseanne Hendrickson for summary judgment dismissing the complaint and all cross claims insofar as asserted against her in Action No. 2.

ORDERED that the appeal from so much of the order as granted those branches of the motion of Roseanne Hendrickson which were for summary judgment dismissing the complaint and the cross claims of Philbor Motors, Inc., doing business as Hempstead Ford, and Ford Motor Company insofar as asserted against her in Action No. 2 is dismissed, as the defendant Cooper Tire and Rubber Company is not aggrieved by those portions of the order (see CPLR 5511; Mixon v TBV, Inc., 76 AD3d 144, 159); and it is further,

ORDERED that the order is reversed insofar as reviewed, on the law, and that branch of the motion of Roseanne Hendrickson which was for summary judgment dismissing the cross claims of the defendant Cooper Tire and Rubber Company insofar asserted against her in Action No. 2 is denied; and it is further,

ORDERED that one bill of costs is awarded to the appellant.

“”Under the emergency doctrine, when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are [*2]reasonable and prudent in the emergency context'”” (Miloscia v New York City Bd. of Educ., 70 AD3d 904, 905, quoting Rivera v New York City Tr. Auth., 77 NY2d 322, 327; see Williams v City of New York, 88 AD3d 989). “”This is not to say that an emergency automatically absolves one from liability for his [or her] conduct. The standard then still remains that of a reasonable [person] under the given circumstances, except that the circumstances have changed”” (Ferrer v Harris, 55 NY2d 285, 293; see Pawlukiewicz v Boisson, 275 AD2d 446, 447). “”Both the existence of an emergency and the reasonableness of a party’s response thereto will ordinarily present questions of fact”” (Williams v City of New York, 88 AD3d at 990; see Crawford-Dunk v MV Transp., Inc., 83 AD3d 764).

Although the defendant Roseanne Hendrickson established that she was confronted with an emergency situation when the tire of the vehicle she was driving suddenly blew out, she failed to meet her prima facie burden of establishing that her subsequent actions were reasonable as a matter of law (see Zuckerman v City of New York, 49 NY2d 557, 560). Accordingly, that branch of her motion which was for summary judgment dismissing the cross claims asserted against her by the defendant Cooper Tire and Rubber Company (hereinafter Cooper Tire) should have been denied. In light of this determination, we need not examine the sufficiency of the papers submitted in opposition to her motion (see Alvarez v Prospect Hosp., 68 NY2d 320, 324).

Cooper Tire’s remaining contention is not properly before this Court.

DILLON, J.P., LOTT, ROMAN and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

“Hendrickson v Philbor Motors, Inc.”      2011-01567         2012 NY Slip Op 08489    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

MARK C. DILLON, J.P.

PLUMMER E. LOTT

SHERI S. ROMAN

JEFFREY A. COHEN, JJ.

2011-01567

(Index Nos. 20507/07, 10700/08)

[*1]Roseanne Hendrickson, et al., respondents,

v

Philbor Motors, Inc., doing business as Hempstead Ford, et al., defendants, Cooper Tire and Rubber Company, appellant. (Action No. 1)

William Malone, plaintiff,

v

Philbor Motors, Inc., doing business as Hempstead Ford, et al., defendants, Cooper Tire and Rubber Company, appellant, Rosanne Hendrickson, respondent. (Action No. 2)

APPEAL by Cooper Tire and Rubber Company, a defendant in two related actions to recover damages for personal injuries, etc., which were joined for trial, as limited by its brief, from so much of an order of the Supreme Court (Karen V. Murphy, J.), dated January 5, 2011, and entered in Nassau County, as granted those branches of the motion of Roseanne Hendrickson, a plaintiff in Action No. 1 and a defendant in Action No. 2, and Dennis Hendrickson, a plaintiff in Action No. 1, which were, in effect, pursuant to CPLR 3211(b) to dismiss its affirmative defense alleging that its liability is limited in both actions pursuant to CPLR article 16 based on the acts or omissions of Ford Motor Company, a defendant in both actions, and for summary judgment dismissing that affirmative defense.

Devitt Spellman Barrett, LLP, Smithtown, N.Y. (Diane K. Farrell

and David H. Arntsen of counsel), for appellant.

Kenneth J. Ready, Mineola, N.Y. (Anthony Orcel of counsel),

for respondents.

OPINION & ORDER

DILLON, J.P.We address, for the first time at an appellate level, whether a defendant’s failure to oppose a codefendant’s motion to dismiss a complaint and cross claims pursuant to CPLR 3211 precludes that party from later asserting that its liability is limited under CPLR article 16. For the reasons set forth below, we hold that, in this instance, it does not.

On August 4, 2005, the injured plaintiff in Action No. 1, Rosanne Hendrickson (hereinafter the injured plaintiff), was operating a 1996 Ford Explorer owned by her father, William Malone, on Interstate Route 80 in New Jersey, when the left rear tire of the vehicle sustained a tread separation, causing the vehicle to swerve across three lanes of travel, and ultimately roll over several times after leaving the highway. The vehicle was manufactured by the defendant Ford Motor Company (hereinafter Ford), and sold by the defendant Philbor Motors, Inc., doing business as [*2]Hempstead Ford (hereinafter Philbor). The subject tire had been manufactured by the defendant Cooper Tire and Rubber Company (hereinafter Cooper Tire). At the time of the accident, Malone was riding in the front passenger seat and his two grandchildren were riding in the back seat.

The injured plaintiff and her husband, Dennis Hendrickson, suing derivatively (hereinafter together the Hendricksons), commenced Action No. 1 against Philbor, Ford, and Cooper Tire. The causes of action asserted against Ford in Action No. 1 alleged defective design and defective manufacture of the vehicle, breach of warranty, failure to warn, strict products liability, and misrepresentation. Malone commenced a separate action (hereinafter Action No. 2) to recover damages against Philbor, Ford, Cooper Tire, and the injured plaintiff. In both actions, Cooper Tire asserted, as an affirmative defense, that its liability should be limited pursuant to CPLR article 16.

Philbor moved for summary judgment dismissing the complaints and all cross claims insofar as asserted against it in both actions. Although Ford answered the Hendricksons’ complaint in Action No. 1, it later cross-moved pursuant to CPLR 3211(a)(7) to dismiss the complaints and all cross claims insofar as asserted against it in both actions for failure to state a cause of action. Both Philbor’s motion and Ford’s cross motion were unopposed by any party. While the motion and cross motion were pending, the Hendricksons separately cross-moved, in effect, pursuant to CPLR 3211(b) to dismiss any affirmative defense asserted by Cooper Tire that was based on CPLR article 16, and for summary judgment dismissing any such affirmative defense, in the event that the respective motion and cross motion of Philbor and Ford were granted, and the complaints were dismissed insofar as asserted against each or both of them. Cooper Tire opposed the Hendricksons’ cross motion.

In an order dated January 5, 2011, the Supreme Court granted Philbor’s unopposed motion for summary judgment. In the same order, the Supreme Court granted Ford’s unopposed cross motion for “”Rule 3211(a)(7) summary judgment.””

The Supreme Court also granted the Hendricksons’ cross motion, thus barring Cooper Tire from seeking an apportionment of fault between Cooper Tire and either Philbor or Ford pursuant to CPLR article 16.

As limited by its brief, Cooper Tire appeals from so much of the order dated January 5, 2011, as granted that branch of the Hendricksons’ cross motion which was, in effect, pursuant to CPLR 3211(b) to dismiss its affirmative defense seeking to apportion fault and/or damages pursuant to CPLR article 16 with respect to Ford, and for summary judgment dismissing that affirmative defense. For the reasons set forth below, we reverse the order insofar as appealed from.

Subject to certain exceptions not applicable here (see CPLR 1602), CPLR 1601(1) limits the liability that can be imposed upon a defendant that is jointly and severally liable for noneconomic loss in instances where that defendant’s liability is found to be 50% or less of the total liability assigned to all persons liable (see Rangolan v County of Nassau, 96 NY2d 42, 45). Under such circumstances, the joint and several liability of such a defendant shall not exceed its proportionate share of the total liability for the noneconomic loss (see CPLR 1601[1]; Rangolan v County of Nassau, 96 NY2d at 46; Cole v Mandell Food Stores, 242 AD2d 552, 554, affd 93 NY2d 34). The assessment of a defendant’s equitable share, as a percentage of the total liability assigned to “”all persons liable”” (CPLR 1601[1]), must take account of not only persons who are parties to the action, but also persons who are nonparties over whom jurisdiction could be obtained (see Kharmah v Metropolitan Chiropractic Ctr., 288 AD2d 94; Brown v State of New York, 268 AD2d 548, 549; Siler v 146 Montague Assoc., 228 AD2d 33, 39; Zakshevsky v City of New York, 149 Misc 2d 52, 54; Siegel, NY Prac § 168C [5th ed]).

The Hendricksons argued before the Supreme Court, and now argue in response to Cooper Tire’s appeal, that because Cooper Tire failed to contest the award of “”summary judgment”” to Ford, Ford received the functional equivalent of a trial that collaterally estops Cooper Tire from attributing a portion of liability to Ford in calculating the apportionment otherwise required by CPLR article 16 (see Sellino v Kirtane, 73 AD3d 728, 729; Johnson v Peloro, 62 AD3d 955, 956-957; Drooker v South Nassau Communities Hosp., 175 Misc 2d 181, 183). Indeed, in Drooker, the Supreme Court specifically and correctly noted that since summary judgment is the “”functional equivalent”” of a trial, it follows that the limited liability benefits for defendants under CPLR article 16 are forfeited as to any codefendant who has been awarded summary judgment in its favor (Drooker v South Nassau Communities Hosp., 175 Misc 2d at 183).

Cooper Tire distinguishes the facts of the instant matter from the foregoing principles by arguing that the complaints and cross claims were dismissed against Ford not via summary [*3]judgment under CPLR 3212 but, rather, pursuant to CPLR 3211(a)(7) for the Hendricksons’ and Malone’s failure to state a cause of action against Ford. Since CPLR 3211(a)(7) dismissals merely address the adequacy of the complaint, and do not reach the substantive merits of a plaintiff’s cause of action or a defendant’s defenses, Cooper Tire argues that there has been no “”functional equivalent”” of a trial that would bar Ford’s inclusion in the calculus of CPLR 1601(1) that applies, as it does, to “”all persons liable”” (cf. Maurischat v County of Nassau, 81 AD3d 793, 794; Amsterdam Sav. Bank v Marine Midland Bank, 140 AD2d 781, 782).

Here, the issue Ford presented to the Supreme Court in its notice of cross motion was that the Hendricksons’ complaint “”failed to state a cause of action upon which relief can be granted,”” and that all cross claims should be dismissed as well. Thus, Ford sought relief pursuant to CPLR 3211(a)(7). While such motions are usually addressed to the sufficiency of a complaint, a third-party complaint, a cross claim, or a counterclaim, as set forth within the four corners of such a pleading, and the allegations of such a pleading, which must be afforded a liberal construction, are accepted as true (see Leon v Martinez, 84 NY2d 83, 87-88; Trotta v Ollivier, 91 AD3d 8; Winkler v Battery Trading, Inc., 89 AD3d 1016; Gioeli v Vlachos, 89 AD3d 984), Ford did not specifically argue in its cross motion that the Hendricksons’ complaint or any cross claim was deficient per se. Rather, Ford, which had earlier answered the Hendricksons’ complaint, supported its cross motion with a copy of the Hendricksons’ interrogatory responses, in which the Hendricksons conceded that the Ford automobile, as designed and manufactured, was not defective in a manner proximately related to the Hendricksons’ accident, and further conceded the absence of any breach of an expressed or implied warranty. They further conceded the absence of any failure to warn of any dangers inherent in the Ford automobile and that Ford did not fail to provide them with any instructions necessary to operate the automobile safely. A reading of Ford’s cross motion in its totality suggests a lack of clarity as to whether its cross motion was truly intended as a CPLR 3211(a)(7) cross motion to dismiss the complaints and all cross claims insofar as asserted against it and, thus, addressed only to the four corners of the pleadings, or whether it was, in reality, a CPLR 3212 cross motion for summary judgment that relied upon substantive discovery responses, and was merely mischaracterized by Ford as a cross motion governed by CPLR 3211.

Compounding the confusion over whether Ford’s cross motion was governed by CPLR 3211 or 3212, the Supreme Court’s order conflated the two concepts by reciting that it awarded “”Rule 3211(a)(7) summary judgment”” to Ford. The disposition is a contradiction in terms, as a successful CPLR 3211(a)(7) motion will result in the dismissal of a complaint or other pleading without addressing the merits, while a successful CPLR 3212 motion awards judgment to the moving party on the merits as a matter of law. At no time did the Supreme Court notify the parties that it was treating Ford’s cross motion as a cross motion for summary judgment, as courts are statutorily required to do under CPLR 3211(c) when a motion to dismiss a complaint or other pleading is to be treated as a motion for summary judgment dismissing a complaint or other pleading (see Moutafis v Osborne, 18 AD3d 723; Roth v Goldman, 254 AD2d 405).

We agree with Cooper Tire that if the granting of Ford’s cross motion was a result of the failure of the complaints or any other pleading to state a cause of action, then there has been no functional equivalent of a trial here, and Ford may be considered to be among “”all persons liable”” within the meaning of CPLR article 16. Conversely, we agree with the Hendricksons that if Ford’s cross motion were treated by the parties and the Supreme Court as one for summary judgment, then the functional equivalent of a trial has been held, and Ford cannot be assessed liability for the plaintiffs’ damages to any degree—not even by the application of CPLR 1602(1). Until now, no New York appellate court has been called upon to draw a distinction between the effect of dispositions under CPLR 3211 and 3212 in the context of CPLR article 16 limitations on liability.

The fact that Ford made its CPLR 3211(a)(7) cross motion after interposing its answer in Action No. 1, instead of making a pre-answer motion, is of no moment. All motions under CPLR 3211 are to be made “”[a]t any time before service of the responsive pleading”” (CPLR 3211[e]), except that CPLR 3211 motions may be made after service of the party’s answer in three circumstances: when the motion is based upon subdivision (a)(2) subject matter jurisdiction, (a)(7) failure to state a cause of action, or (a)(10) nonjoinder of a necessary party (see CPLR 3211[e]). Here, since Ford’s cross motion sought dismissal of the complaints pursuant to CPLR 3211(a)(7) for failure to state a cause of action, its post-answer timing does not necessarily or definitionally transform it into a motion for summary judgment.

Another question presented here is whether a CPLR 3211(a)(7) motion can be granted [*4]based upon the movant’s presentation of extrinsic documentation consisting of the plaintiffs’ discovery responses. Notably, Ford’s notice of cross motion never expressly referred to CPLR 3211(a)(1), which allows for the dismissal of a complaint or other pleading based on a defense founded upon documentary evidence. Had the cross motion been made under CPLR 3211(a)(1), it would have been untimely, as Ford’s answer to the complaint in Action No. 1 had already been served (see CPLR 3211[e]) and, thus, the only appropriate vehicle for seeking dispositive relief in Action No. 1 based upon the documentary evidence would have been by means of a CPLR 3212 summary judgment motion.

A court may, however, consider evidentiary material submitted by a defendant in support of a CPLR 3211(a)(7) motion to dismiss a complaint or other pleading (see CPLR 3211[c]). Where, as here, evidentiary materials, such as the plaintiffs’ sworn interrogatory responses, are submitted, the criterion becomes “”whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one”” (Guggenheimer v Ginzberg, 43 NY2d 268, 275; see Foley v D’Agostino, 21 AD2d 60, 64-65), but, “”unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it . . . dismissal should not eventuate”” (Guggenheimer v Ginzberg, 43 NY2d at 275; see Crane v BPC Mgt. Corp., 90 AD3d 692, 692-693). Accordingly, consideration of such evidentiary materials will almost never warrant dismissal under CPLR 3211(a)(7) unless the materials “” establish conclusively that [the plaintiff] has no [claim or] cause of action'”” (Lawrence v Graubard Miller, 11 NY3d 588, 595, quoting Rovello v Orofino Realty Co., 40 NY2d 633, 636). Nonetheless, under Guggenheimer, the Supreme Court could properly consider the plaintiffs’ sworn interrogatory responses in determining whether Ford conclusively established the absence of any cause of action. Accordingly, the inclusion of extrinsic evidence beyond the pleadings did not, in this case, transform Ford’s cross motion into a cross motion for summary judgment.

CPLR 3211(c) requires that if a court intends to treat a CPLR 3211 motion as one for summary judgment under CPLR 3212, it must give the parties notice of its intention to do so (see Mihlovan v Grozavu, 72 NY2d 506, 508; Matter of South Blossom Ventures, LLC v Town of Elma, 46 AD3d 1337, 1338; Kempf v Magida, 37 AD3d 763, 765). This makes sense given the res judicata effect of CPLR 3212 summary judgment determinations, which, for many CPLR 3211 dismissals, such as those under subdivision (a)(7), is not an issue. A court’s CPLR 3211(c) notice, therefore, alerts the parties to submit whatever evidentiary materials are required for the court to render a proper summary judgment determination.

There are nevertheless three circumstances under which a court’s failure to provide CPLR 3211(c) notice may be overlooked (see Four Seasons Hotels v Vinnik, 127 AD2d 310, 320-321). One circumstance is when CPLR 3211(c) treatment is specifically requested not by one party, but by all of the parties (see Four Seasons Hotels v Vinnik, 127 AD2d at 320-321), or is at least requested by the same party that is aggrieved by the summary judgment determination (see Wein v City of New York, 36 NY2d 610, 620-621). A second circumstance is when a dispute involves no questions of fact, but only issues of law argued by all parties (see Mihlovan v Grozavu, 72 NY2d at 508), such as in the context of declaratory judgment actions involving an issue of statutory construction (see O’Hara v Del Bello, 47 NY2d 363) or the application of an unambiguous contractual provision (see F & T Mgt. & Parking Corp. v Flushing Plumbing Supply Co., Inc., 68 AD3d 920, 923). The third circumstance is when the respective submissions of both parties demonstrate that they are laying bare their proof and deliberately charting a summary judgment course (see Sokol v Leader, 74 AD3d 1180, 1183; Hopper v McCollum, 65 AD3d 669, 670; Fischer v RWSP Realty, LLC, 53 AD3d 594; Mancuso v Rubin, 52 AD3d 580, 582; Tendler v Bais Knesses of New Hempstead, Inc., 52 AD3d 500, 502; Methal v City of New York, 50 AD3d 654; Harris v Hallberg, 36 AD3d 857, 858; Myers v BMR Bldg. Inspections, Inc., 29 AD3d 546; Jamison v Jamison, 18 AD3d 710, 711; O’Dette v Guzzardi, 204 AD2d 291, 292).

None of the aforesaid circumstances which could excuse the Supreme Court’s failure to provide CPLR 3211(c) notice applies to this matter. Since Ford’s cross motion was unopposed by all parties, including Cooper Tire, one cannot conclude that Cooper Tire viewed Ford’s cross motion as anything other than what it expressly stated itself to be—a cross motion to dismiss the complaints and all cross claims insofar as asserted against it under CPLR 3211(a)(7)—addressed to the alleged insufficiency of the pleadings for failure to state a cause of action. Absent the CPLR 3211(c) notice from the Supreme Court that it intended to treat Ford’s cross motion as one for summary judgment, Cooper Tire was never made aware that the Supreme Court’s disposition of the [*5]cross motion might later be argued as having been “”on the merits,”” or the “”functional equivalent of trial”” warranting the applicability of res judicata finality. Moreover, without such notice, the Supreme Court’s disposition of the cross motion cannot be considered as the functional equivalent of a trial unless Cooper Tire submitted papers making clear its intention to chart a summary judgment course. Cooper Tire cannot be said to have charted a summary judgment course, as it submitted no papers laying bare its proof in opposition to Ford’s cross motion. Finally, while the Hendricksons’ discovery responses might arguably appear to be material extrinsic to their complaint and therefore considered by the trial court on their merits, the content of those responses merely results, in effect, as a withdrawal of the Hendricksons’ causes of action against Ford, further supporting our conclusion that the Supreme Court’s order directing the dismissal of the complaint insofar as asserted against Ford, under these particular circumstances, was not the functional equivalent of a trial.

We hold, therefore, that the particular facts of this case, including the absence of a CPLR 3211(c) notice from the Supreme Court, and the absence of any evidence that Cooper Tire was charting a summary judgment course, require that we deem Ford’s cross motion to be a cross motion to dismiss the complaints and all cross claims insofar as asserted against it pursuant to CPLR 3211(a)(7). Since Ford’s cross motion was one for dismissal under CPLR 3211(a)(7), which is not the functional equivalent of a trial on the merits, Cooper Tire may seek to include any liability attributable to Ford as part of the total liability assigned to “”all persons liable”” for purposes of CPLR article 16. Accordingly, the Hendricksons failed to establish that the challenged affirmative defense was without merit (see CPLR 3211[b]), and failed to establish their prima facie entitlement to judgment as a matter of law dismissing that affirmative defense. Therefore, the Supreme Court should have denied those branches of their cross motion which were, in effect, pursuant to CPLR 3211(b) to dismiss Cooper Tire’s affirmative defense alleging that its liability is limited in both actions pursuant to CPLR article 16 based on Ford’s acts or omissions, and for summary judgment dismissing that affirmative defense.

We caution that some CPLR 3211 dismissals are considered to be on the merits, such as dismissals under subdivision (a)(5) for actions commenced beyond the applicable statute of limitations and actions barred by the statute of frauds (see e.g. Smith v Russell Sage Coll., 54 NY2d 185, 194; Cold Spring Harbor Area Civic Assn. v Board of Zoning Appeals of Town of Huntington, 305 AD2d 444, 445; Matter of Karmel v Delfino, 293 AD2d 473; Lake Anne Realty Corp. v Town of Blooming Grove, 262 AD2d 413). We, therefore, limit the scope of our determination here to uncontested motions brought under CPLR 3211(a)(7).

The parties’ remaining contentions either are without merit or have been rendered academic by our determination. In light of the foregoing, the order is reversed insofar as appealed from, on the law, and those branches of the Hendricksons’ motion which were, in effect, pursuant to CPLR 3211(b) to dismiss Cooper Tire’s affirmative defense alleging that its liability is limited in both actions pursuant to CPLR article 16 based on Ford’s acts or omissions, and for summary judgment dismissing that affirmative defense, are denied.

LOTT, ROMAN and COHEN, JJ., concur.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the motion of Roseanne Hendrickson and Dennis Hendrickson which were, in effect, pursuant to CPLR 3211(b) to dismiss Cooper Tire’s affirmative defense alleging that its liability is limited in both actions pursuant to CPLR article 16 based on the acts or omissions of Ford Motor Company, and for summary judgment dismissing that affirmative defense are denied.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Ingram v Long Is. Coll. Hosp.        2011-07727         2012 NY Slip Op 08490    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

REINALDO E. RIVERA, J.P.

MARK C. DILLON

JOHN M. LEVENTHAL

CHERYL E. CHAMBERS, JJ.

2011-07727

(Docket No. 36311/06)

[*1]Annie Ingram, plaintiff-respondent,

v

Long Island College Hospital, defendant third-party plaintiff- appellant-respondent; AFMSM, Inc., third-party defendant, Fresenius Medical Care, etc., third-party defendant-respondent-appellant.

Wilson Elser Moskowitz Edelman & Dicker, LLP, White Plains,

N.Y. (Melissa A. McCarthy of counsel), for defendant third-party

plaintiff-appellant-respondent.

Christopher P. Di Giulio, P.C., New York, N.Y. (William

Thymius of counsel), for third-party

defendant-respondent-appellant.

Joseph B. Strassman, Huntington, N.Y., for plaintiff-respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant third-party plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Battaglia J.), dated June 9, 2011, as denied those branches of its cross motion which were for summary judgment dismissing the complaint and on its third-party causes of action for contractual and common-law indemnification, and the third-party defendant Fresenius Medical Care cross-appeals, as limited by its brief, from so much of the same order as denied those branches of its motion which were for summary judgment dismissing the complaint and the third-party complaint insofar as asserted against it.

ORDERED that the order is reversed, on the law, with one bill of costs to the defendant third-party plaintiff and the third-party defendant Fresenius Medical Care, payable by the plaintiff, those branches of the cross motion of the defendant third-party plaintiff and the third-party defendant Fresenius Medical Care, which were for summary judgment dismissing the complaint are granted, that branch of the cross motion of the defendant third-party plaintiff which was for summary judgment on its third-party causes of action for contractual and common-law indemnification is denied as academic, and that branch of the motion of the third-party defendant Fresenius Medical Care which was for summary judgment dismissing the third-party complaint is granted.

The plaintiff allegedly tripped and fell over a piece of plastic used for bundling bed sheets while she was walking to her chair for treatment in the dialysis unit of the defendant third-party plaintiff, Long Island College Hospital (hereinafter LICH). Thereafter, the plaintiff commenced this action against LICH to recover damages for personal injuries, and LICH [*2]commenced a third-party action against, among others, Fresenius Medical Care (hereinafter FMC). Subsequently, FMC moved, inter alia, for summary judgment dismissing the complaint and the third-party complaint insofar as asserted against it, and LICH cross-moved, inter alia, for summary judgment dismissing the complaint and on its third-party causes of action for contractual and common-law indemnification.

In a trip-and-fall case, a plaintiff must demonstrate that the defendant had actual or constructive notice of the allegedly dangerous condition that caused the fall, or created that condition (see Teplin v Bonwit Inn, 64 AD3d 642, 642-643; Brown v Outback Steakhouse, 39 AD3d 450).

LICH and FMC satisfied their respective prima facie burdens of establishing their entitlement to summary judgment dismissing the complaint. They established that LICH did not create the allegedly dangerous condition by demonstrating that the employees of New York Dialysis Services, Inc., a nonparty, removed the plastic from the sheets (see Ameneiros v Seaside Co., LLC, 81 AD3d 760, 761). Further, it was demonstrated that LICH did not have actual or constructive notice of the alleged dangerous condition. Through the deposition testimony of Ramesh Deonarain, LICH’s housekeeper, and that of Alan Zwerin, FMC’s area manager, it was demonstrated that LICH had not received any complaints about plastic on the floor and had never observed that condition in the past. The unit in which the plaintiff received treatment was cleaned overnight, and she was one of the first patients in the unit at 6:00 A.M. on the day of her accident (see Gordon v American Museum of Natural History, 67 NY2d 836, 837). Neither the plaintiff nor the nonparty witness, Alice Moye, observed any plastic on the floor before the plaintiff’s accident (see Bravo v 564 Seneca Ave. Corp., 83 AD3d 633, 634; Crapanzano v Balkon Realty Co., 68 AD3d 1042, 1043; Doherty v Great Atl. & Pac. Tea Co., 265 AD2d 447, 448). It was also demonstrated that LICH did not have actual knowledge of an ongoing and recurring dangerous condition such that it should be charged with constructive notice of each specific reoccurrence of that condition (see Brown v Linden Plaza Hous. Co., Inc., 36 AD3d 742). Although the plaintiff previously had observed plastic on the floor, she admitted that she had never complained about it, and while Moye had written a letter complaining about the general condition of the unit, she never mentioned the specific condition at issue (see Anderson v Central Val. Realty Co., 300 AD2d 422, 423). In opposition to this prima facie showing, the plaintiff failed to raise a triable issue of fact.

Accordingly, the Supreme Court should have granted those branches of LICH’s cross motion and FMC’s motion which were for summary judgment dismissing the complaint.

In light of this determination, that branch of LICH’s cross motion which was for summary judgment on its third-party causes of action for contractual and common-law indemnification should have been denied as academic, and that branch of FMC’s motion which was for summary judgment dismissing the third-party complaint should have been granted (see Spence v Island Estates at Mt. Sinai II, LLC, 79 AD3d 936, 939; Hoover v International Bus. Machs. Corp., 35 AD3d 371, 372).

RIVERA, J.P., DILLON, LEVENTHAL and CHAMBERS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Hom v Hom        2011-02750         2012 NY Slip Op 08491    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

MARK C. DILLON, J.P.

ANITA R. FLORIO

PLUMMER E. LOTT

SANDRA L. SGROI, JJ.

2011-02750

(Index No. 6602/06)

[*1]Kai Hong Hom, respondent,

v

Bill Hom, appellant, et al., defendants.

Cyruli Shanks Hart & Zizmor, LLP, New York, N.Y. (James E.

Schwartz and Marc J. Schneider of counsel), for appellant.

Morton S. Minsley, New York, N.Y., for respondent.

DECISION & ORDER

In an action, inter alia, for a judgment declaring that the plaintiff is the sole owner of certain real property and the proceeds of two financial accounts, the defendant Bill Hom appeals from a judgment of the Supreme Court, Queens County (Risi, J.H.O.), entered March 10, 2011, which, after a nonjury trial, is in favor of the plaintiff and against him, inter alia, declaring that the plaintiff is the sole owner of the subject real property and financial accounts.

ORDERED that the judgment is affirmed, with costs.

The plaintiff owned real property with his late wife. In 1988 they executed a deed purporting to transfer the premises to themselves and their son, the appellant Bill Hom (hereinafter the appellant), as joint tenants with the right of survivorship. The plaintiff’s wife died two years later. In subsequent years, the plaintiff opened a bank account with Abacus Federal Savings Bank and a brokerage account with HSBC Brokerage, both of which were opened jointly in the names of the plaintiff and the appellant.

In 2006 the plaintiff commenced this action seeking, inter alia, a judgment declaring that he is the sole owner of the property and the two financial accounts, and directing that the appellant’s name be removed from all indicia and records of title or ownership. After a nonjury trial, the Supreme Court entered judgment in favor of the plaintiff and against the appellant, inter alia, declaring that the plaintiff is the sole owner of the property and the financial accounts. In determining that the plaintiff did not have a present intention to transfer an interest in the property to the appellant, despite having placed his name on the deed, the Supreme Court found that the appellant had not paid any consideration toward the purchase of the property, or any contribution toward its upkeep. Thus, the Supreme Court concluded that there was no completed inter vivos gift of an interest in the property. With respect to the financial accounts, the Supreme Court determined that the appellant’s name was added to the two accounts solely for convenience.

In reviewing a determination made after a nonjury trial, the power of this Court is as broad as that of the trial court, and this Court may render the judgment it finds “”warranted by the facts,”” bearing in mind that in a close case, the trial judge had the advantage of seeing the witnesses [*2]and hearing the testimony (Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499; see DePaula v State of New York, 82 AD3d 827; Kaygreen Realty Co. v IG Second Generation Partners, L.P., 68 AD3d 933). Here, the Supreme Court’s findings were warranted by the facts and will not be disturbed. The Supreme Court credited the plaintiff’s testimony that the appellant did not make any contributions toward the purchase of the premises or to have his name added to the deed, and discredited the appellant’s testimony to the contrary. “” Where the findings of fact rest in large measure on considerations relating to the credibility of witnesses, deference is owed to the trial court’s credibility determinations'”” (Papovitch v Papovitch, 84 AD3d 1045, 1046, quoting Praimnath v Torres, 59 AD3d 419, 419-420).

Moreover, the evidence supported the Supreme Court’s finding that there was no completed inter vivos gift of an interest in the premises. “”An inter vivos gift requires that the donor intend to make an irrevocable present transfer of ownership; if the intention is to make a testamentary disposition effective only after death, the gift is invalid unless made by will”” (Gruen v Gruen, 68 NY2d 48, 53; see Greene v Greene, 92 AD3d 838; Ross v Ross Metals Corp., 87 AD3d 573, 575). The plaintiff testified that the appellant’s name was added to the deed so that, upon the deaths of him and his wife, the premises would be transferred to the appellant, and not their daughters, in accordance with Chinese tradition. The appellant conceded that he heard his parents express this purpose to the attorney who prepared the deed. Further, the Supreme Court credited the plaintiff’s testimony that he continued to pay all expenses of the premises with no contribution from the appellant, and it was undisputed that the appellant never reported any rental income from the premises on his tax returns (see Byrd v Brown, 208 AD2d 582; cf. Pell St. Nineteen Corp. v Yue Er Liu Mah, 243 AD2d 121).

The Supreme Court’s finding that the appellant’s name was added to the bank and brokerage accounts solely for convenience also was warranted by the facts. In general, the deposit of funds into a joint bank or brokerage account constitutes prima facie evidence of an intent to create a joint tenancy (see Banking Law § 675; Matter of Yaros, 90 AD3d 1063; Matter of Corcoran, 63 AD3d 93, 96). The statutory presumption created by Banking Law § 675 can be rebutted, however, “” by providing direct proof that no joint tenancy was intended or substantial circumstantial proof that the joint account had been opened for convenience only'”” (Matter of Yaros, 90 AD3d at 1064, quoting Matter of Richichi, 38 AD3d 558, 559; see Crescimanno v Crescimanno, 33 AD3d 649; Fragetti v Fragetti, 262 AD2d 527; Matter of Phelps v Kramer, 102 AD2d 908).

The plaintiff testified that he added the appellant’s name to the accounts at the suggestion of bank officials, so that the appellant could retrieve the funds upon his death. Given the lack of documentary substantiation, the Supreme Court discredited the appellant’s testimony that he deposited any funds into either account, or into previous accounts which were the source for the initial deposits. The court credited the plaintiff’s testimony that the accounts were funded with his own money, without contribution by the appellant. Deference is owed to this credibility determination (see Papovitch v Papovitch, 84 AD3d 1045; Praimnath v Torres, 59 AD3d 419). Although the appellant made one withdrawal from the Abacus Federal Savings Bank account, such withdrawal was not raised at trial and was thus unexplained. The plaintiff made all other transactions, received all brokerage statements, and held the only passbook for the bank account. Further, the plaintiff had limited command of the English language and the appellant was the only child residing with him when the accounts were opened (see Plotnikoff v Finkelstein, 105 AD2d 10; Brezinski v Brezinski, 94 AD2d 969). Accordingly, the Supreme Court’s finding that the plaintiff rebutted the statutory presumption of Banking Law § 675 was warranted by the facts and will not be disturbed.

The appellant’s remaining contention is without merit.

DILLON, J.P., FLORIO, LOTT and SGROI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Kelley v Doaman              2011-03200         2012 NY Slip Op 08492    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

RANDALL T. ENG, P.J.

REINALDO E. RIVERA

PLUMMER E. LOTT

ROBERT J. MILLER, JJ.

2011-03200

2011-03206

(Index No. 2104/07)

[*1]Edward Kelley, etc., et al., appellants,

v

Ian Doaman, et al., respondents.

La Reddola, Lester & Associates, LLP, Garden City, N.Y. (Steven

M. Lester of counsel), for appellant Edward Kelley, and Storzer

& Greene, PLLC, New York, N.Y. (Robert L. Greene of counsel),

for appellants International Society for Krishna Consciousness, Inc.,

and the Governing Body Commission of the International Society

for Krishna Consciousness (one brief filed).

Chittur & Associates, P.C., New York, N.Y. (Krishnan S.

Chittur of counsel), for respondents.

DECISION & ORDER

In an action, inter alia, to enjoin an alleged trespass and usurpation of corporate authority, the plaintiffs appeal, as limited by their brief, from (1) so much of an order of the Supreme Court, Nassau County (Mahon, J.), dated January 28, 2011, as denied their motion to vacate so much of an order of a special referee dated July 19, 2010, as directed the plaintiffs to produce, within 21 days, certain documents pertaining to a California action entitled Bhaktivedanata Book Trust International, Inc. v International Society for Krishna Consciousness, Inc. (Los Angeles County, Super Ct No. BC170617), and (2) so much of an order of the same court, also dated January 28, 2011, as denied that branch of their motion which was to vacate so much of an order of the same court (Schellace, S. R.) dated June 25, 2010, as, upon reargument, adhered to an original determination in an order of the same court (Schellace, S. R.) dated May 4, 2010, in effect, granting that branch of the defendants’ motion which sought a determination that the plaintiffs failed to meet the discovery deadline set forth in an order of the same court (Mahon, J.) dated December 4, 2007.

ORDERED that the first order dated January 28, 2011, is reversed insofar as appealed from, on the facts and in the exercise of discretion, the plaintiffs’ motion to vacate so much of the order of the special referee dated July 19, 2010, as directed the plaintiffs to produce, within 21 days, certain documents pertaining to the California action is granted, and that portion of the order dated July 19, 2010, is vacated; and it is further,

ORDERED that the second order dated January 28, 2011, is reversed insofar as appealed from, on the facts, that branch of the plaintiffs’ motion which was to vacate so much of the order dated June 25, 2010, as, upon reargument, adhered to an original determination in an order dated May 4, 2010, in effect, granting that branch of the defendants’ motion which sought a determination that the plaintiffs failed to meet the discovery deadline set forth in the order dated December 4, 2007, is granted, that portion of the order dated June 25, 2010, is vacated, upon reargument, so much of the order dated May 4, 2010, as, in effect, granted that branch of the [*2]defendants’ motion which sought a determination that the plaintiffs failed to meet the discovery deadline set forth in the order dated December 4, 2007, is vacated, and that branch of the defendants’ motion is denied; and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs.

At issue on these appeals are several orders of a special referee (hereinafter the Referee) appointed by the Supreme Court to resolve certain questions and motions regarding discovery. In an order dated May 4, 2010, the Referee found that the plaintiffs had failed to meet a discovery deadline set by an order of the Supreme Court dated December 4, 2007, directing that they respond to the defendants’ first discovery demand by December 31, 2007. In an order dated June 25, 2010, the Referee, upon reargument, adhered to his determination in the order dated May 4, 2010. In another order dated July 19, 2010, the Referee directed the plaintiffs to produce, within 21 days, certain documents pertaining to a California case entitled Bhaktivedanata Book Trust International, Inc. v International Society for Krishna Consciousness, Inc. (Los Angeles County, Super Ct No. BC170617) (2010 WL 685320, 2010 Cal. App. Unpub. LEXIS 1435) (hereinafter the California litigation documents).

“”After commencement of an action, any party may serve on any other party a notice or on any other person a subpoena duces tecum: (i) to produce and permit the party seeking discovery . . . to inspect, copy, test or photograph any designated documents or any things which are in the possession, custody or control of the party or person served”” (CPLR 3120[1][I]). “”This section may be satisfied by telling the party seeking the discovery where the materials are and providing a reasonable opportunity for that party to look at them and make copies”” (Zegarelli v Hughes, 3 NY3d 64, 69).

Here, the defendants requested, pursuant to CPLR 3101, that the plaintiffs produce certain documents for inspection and copying at the offices of the defendants’ attorney. The Supreme Court’s order dated December 4, 2007, directed, inter alia, that the plaintiffs “”respond to”” the defendants’ discovery demands by December 31, 2007.

The plaintiffs established that they responded to the defendants’ discovery demands by December 31, 2007, and that they made the requested documents available for inspection and copying. Accordingly, contrary to the Referee’s determination made in his order dated May 4, 2010, the plaintiffs did not fail to “”timely comply with the order of December 4, 2007,”” and the Supreme Court should have, upon reargument, denied that branch of the defendants’ motion which sought a determination that the plaintiffs failed to meet the discovery deadline set forth in the order dated December 4, 2007.

Furthermore, under the circumstances of this case, we conclude that the Supreme Court improvidently exercised its discretion in denying the plaintiffs’ motion to vacate so much of the order of the Referee dated July 19, 2010, as directed the plaintiffs to produce, within 21 days, the documents pertaining to the California action (see Auto Collection, Inc. v C.P., 93 AD3d 621, 622; Maggio v RTI Donor Servs., Inc., 73 AD3d 711, 711-712).

ENG, P.J., RIVERA, LOTT and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

G.L. v Markowitz              2010-06329         2012 NY Slip Op 08493    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

PETER B. SKELOS, J.P.

RUTH C. BALKIN

JOHN M. LEVENTHAL

SHERI S. ROMAN, JJ.

2010-06329

(Index No. 9913/09)

[*1]G. L. (Anonymous), etc., appellant,

v

Shirley Markowitz, respondent.

Neal M. Sher, New York, N.Y., for appellant.

Goldman & Grossman, New York, N.Y. (Eleanor R. Goldman

and Jay S. Grossman of counsel), for

respondent.

DECISION & ORDER

In an action, inter alia, to recover damages for defamation, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (F. Rivera, J.), dated June 3, 2010, as granted that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the amended complaint.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion which was pursuant to CPLR 3211(a)(7) to dismiss the first cause of action, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiff.

This action was commenced to recover damages for defamation and negligent and intentional infliction of emotional distress. The amended complaint alleged that the defendant, who described herself as a community volunteer, “”recklessly, maliciously, and with flagrant disregard for the truth”” made the “”false”” and “”defamatory”” statement that the then 13-year-old plaintiff “”had sexual intercourse with her father.”” The amended complaint asserted that the defamatory statement was initially made in March 2005 and, “”upon information and belief,”” the defendant repeated the alleged defamatory statement to others, causing “”disgrace, humiliation, [and] disrespect”” to the plaintiff within her Orthodox Jewish community. Further, the amended complaint asserted that the defamatory statements allegedly made by the defendant constituted slander per se.

The defendant moved, inter alia, pursuant to CPLR 3211(a)(7) to dismiss the amended complaint for failure to state a cause of action, and the Supreme Court granted that branch of the motion.

On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the complaint a liberal construction (see CPLR 3026) and “” accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible [*2]favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory'”” (Nonnon v City of New York, 9 NY3d 825, 827, quoting Leon v Martinez, 84 NY2d 83, 87-88).

The Supreme Court properly granted that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the second cause of action, alleging negligent and intentional infliction of emotional distress. Accepting the allegations in the amended complaint as true, they fail to state a cause of action to recover damages for negligent or intentional infliction of emotional distress (see McGovern v Nassau County Dept. of Social Servs., 60 AD3d 1016, 1018; Tartaro v Allstate Indem. Co., 56 AD3d 758, 759).

However, the Supreme Court erred in granting that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the first cause of action, which sought to recover damages for defamation. “”Making a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion or disgrace constitutes defamation”” (Thomas H. v Paul B., 18 NY3d 580, 584; see Katapodis v Brooklyn Spectator, Inc., 287 NY 17, 20 [a statement is defamatory “”not only if it brings a party into hatred, ridicule or contempt by asserting some moral discredit upon his part, but also if it tends to make him be shunned or avoided, although it imputes no moral turpitude to him””]). While “”[s]lander as a rule is not actionable unless the plaintiff suffers special damage,”” an exception to that rule exists for statements “”imputing unchastity to a woman,”” which statements would constitute “”slander per se”” (Liberman v Gelstein, 80 NY2d 429, 434, 435). It is for the court to determine in the first instance whether the particular challenged statements are susceptible of a defamatory meaning (see Aronson v Wiersma, 65 NY2d 592, 593; Tracy v Newsday, Inc., 5 NY2d 134, 136; Knutt v Metro Intl., S.A., 91 AD3d 915, 916; ). “”If the contested statements are reasonably susceptible of a defamatory connotation, then it becomes the jury’s function to say whether that was the sense in which the words were likely to be understood by the ordinary and average [listener]'”” (James v Gannett Co., 40 NY2d 415, 419, quoting Mencher v Chesley, 297 NY 94, 100; see Knutt v Metro Intl., S.A., 91 AD3d at 916).

Applying these principles here, and accepting the facts alleged in the amended complaint as true, the plaintiff has alleged a statement made by the defendant that could be reasonably susceptible of a defamatory connotation, specifically, imputing unchastity to the infant plaintiff, so as to state a cause of action for slander per se. Furthermore, as required by CPLR 3016(a), the cause of action to recover damages for defamation set forth the “”particular words”” alleged to be false and defamatory.

Our dissenting colleague posits that the challenged statement cannot be reasonably understood as imputing unchastity to the infant plaintiff because “”unchastity cannot be imputed to a female as a result of intercourse involving the crimes of rape and incest.”” Conceivably, a statement asserting that a female had been the victim of a sex offense would not be susceptible of a defamatory meaning because it could not reasonably be interpreted by the ordinary listener as imputing unchastity to that individual. However, in assessing potential defamatory meaning, we must look to the particular words used, and, here, it was not alleged that the defendant stated that the plaintiff had been the victim of a sex offense, or even that the plaintiff’s father had engaged in inappropriate sexual conduct with her. Rather, as alleged in the complaint, the defendant stated that “”[the plaintiff] had engaged in sexual intercourse with her father.”” Of course, by operation of law, the plaintiff was incapable of consenting to such conduct (see Penal Law § 130.05[3]), and if such conduct did, in fact, occur, the plaintiff would have been the victim of rape (see Penal Law § 130.30[1]), among other offenses. However, the dissent’s position is entirely reliant upon this legal incapability of consenting to sexual conduct, whereas, in assessing potential defamatory meaning, the words must be “”tested against the understanding of the average reader [or listener]”” (Aronson v Wiersma, 65 NY2d at 594). The average listener, a lay person not trained in the law, upon hearing the statement “”[the plaintiff] had engaged in sexual intercourse with her father,”” might not interpret the statement to mean that the plaintiff had been the victim of rape due to her legal incapability of consenting to such conduct. The fact that any other interpretation would be incorrect from a legal standpoint does not alter our analysis of “”the understanding of the average [listener]”” (id.; see November v Time Inc., 13 NY2d 175, 178-179 [“”The words are to be construed not with the close precision expected from [*3]lawyers and judges but as they would be read and understood by the public to which they are addressed””]; see generally James v Gannett Co., 40 NY2d at 420 [“”It is the duty of the court, in an action for (defamation), to understand the publication in the same manner that others would naturally do”” (internal quotation marks omitted)]). Moreover, while it might ultimately be determined that another interpretation was not “”the sense in which the words were likely to be understood by the ordinary and average [listener],”” due to the plaintiff’s age or other contextual facts (James v Gannett Co., 40 NY2d at 419 [internal quotation marks omitted]), in the context of this CPLR 3211(a)(7) motion, the Court is limited to assessing whether the plaintiff’s allegations were sufficient to state a cause of action for defamation.

Additionally, the dissent invokes a definition of the term “”chaste”” and asserts that the plaintiff cannot be viewed as unchaste since she did not voluntarily have sexual intercourse. We note that the same dictionary our dissenting colleague relies on defines the term “”chastity”” as, inter alia, “”that virtue which prevents the unlawful intercourse of the sexes; the state of purity or abstinence from unlawful sexual connection”” (Black’s Law Dictionary 236 [6th ed 1990]). Thus, to the extent that a dictionary definition may be relied upon, the definition provided in the cited dictionary is ambiguous and inconclusive.

While the dissent further posits that permitting this action to survive past the pleading stage might have a chilling effect on the reporting of suspected cases of child abuse, our holding here is limited to the particular defamatory statement as alleged in the complaint. Again, that statement was that “”[the plaintiff] had engaged in sexual intercourse with her father.”” The complaint did not allege that the statement was intended as, or constituted, a report that the plaintiff had been the victim of a sex offense or of child abuse. We express no opinion as to the potential defamatory meaning of any statement other than that alleged in the complaint. We further note that a qualified privilege protects certain individuals from civil liability arising from reports of child abuse that are based on reasonable cause and made in good faith (see Social Services Law § 419; Biondo v Ossining Union Free School Dist., 66 AD3d 725).

In sum, in the context of this CPLR 3211(a)(7) motion, in which we determine only whether the allegations state a cognizable cause of action, we cannot say that the plaintiff’s allegations failed to state a cause of action to recover damages for slander per se.

SKELOS, J.P., BALKIN and LEVENTHAL, JJ., concur.

ROMAN, J., concurs in part and dissents in part, and votes to affirm the order insofar as appealed from, with the following memorandum:

I respectfully disagree with the majority’s conclusion that the amended complaint states a cause of action to recover damages for slander per se based upon a statement allegedly imputing unchastity to the plaintiff. The allegedly defamatory statement, which was made by the defendant to the then-13-year-old plaintiff’s grandmother and school officials, revealed that the plaintiff was being sexually abused by her father. As will be discussed in greater detail, unchastity cannot be imputed to a female as a result of intercourse involving the crimes of rape and incest. The allegedly defamatory statement thus does not qualify as slander per se, and the plaintiff has not pleaded special damages. Therefore, the defamation claim must be dismissed for failure to state a cause of action.

The amended complaint in this case alleged, in pertinent part, that in March 2005 the defendant, “”representing herself to be a representative of or in some way working with the Kiryas Joel Union Free School District . . . and/or the Beth Rachel School,”” placed a telephone call to the then-13-year-old plaintiff’s grandmother, R.L. During this phone call, the defendant allegedly “”recklessly, maliciously and with flagrant disregard for the truth, disseminated to [R.L.] the false, slanderous and defamatory allegation”” that the plaintiff “”had sexual intercourse with her father.”” The affidavit of the plaintiff’s grandmother, and the order appealed from, indicate that the plaintiff’s [*4]father allegedly confessed in June 2005 that he had sexual intercourse with the plaintiff, although he subsequently retracted his confession. The amended complaint alleged that “”one of the fundamental principles”” within the plaintiff’s community “”is the strict mandate that women and girls must remain chaste until they are married,”” and that “”allegations that an unmarried infant girl . . . had lost her virginity prior to marriage”” would cause “”irreparable damage to the young girl’s reputation and standing in the community.”” The amended complaint alleged that the statement at issue constituted slander per se. In addition, it was asserted, “”[u]pon information and belief,”” that the defendant repeated the alleged statement “”to other persons, including officials of the School District and Beth Rachel School,”” causing “”disgrace, humiliation, disrespect and extraordinary irreparable damage to Plaintiff’s reputation and standing in the community.””

“”Defamation is defined as a false statement that exposes a person to public contempt, ridicule, aversion or disgrace”” (Town of Massena v Healthcare Underwriters Mut. Ins. Co., 98 NY2d 435, 444; see Thomas H. v Paul B., 18 NY3d 580, 584). “”Whether particular words are defamatory presents a legal question to be resolved by the court in the first instance. The words must be construed in the context of the entire statement or publication as a whole, tested against the understanding of the average reader [or listener], and if not reasonably susceptible of a defamatory meaning, they are not actionable and cannot be made so by a strained or artificial construction”” (Aronson v Wiersma, 65 NY2d 592, 593-594 [citations omitted]; see James v Gannett Co., 40 NY2d 415, 419-420; Wilcox v Newark Val. Cent. School Dist., 74 AD3d 1558, 1560-1561; Allen v CH Energy Group, Inc., 58 AD3d 1102, 1103).

“”[A] plaintiff alleging slander must plead and prove that he or she has sustained special damages, i.e., the loss of something having economic or pecuniary value,'”” unless the defamatory statement falls into one of the categories of slander per se (Rufeh v Schwartz, 50 AD3d 1002, 1004, quoting Liberman v Gelstein, 80 NY2d 429, 434-435 [internal quotation marks omitted]; see Epifani v Johnson, 65 AD3d 224, 234). Among the recognized categories of slander per se, and the only one at issue here, are statements imputing unchastity to a woman (see Liberman v Gelstein, 80 NY2d at 435; Epifani v Johnson, 65 AD3d at 234).

Here, accepting the facts alleged in the amended complaint as true, and according the plaintiff the benefit of every favorable inference as required on a motion to dismiss pursuant to CPLR 3211(a)(7) (see Leon v Martinez, 84 NY2d 83, 87-88), I conclude that the amended complaint fails to state a cause of action to recover damages for slander per se.

The alleged statement, that the plaintiff “”had sexual intercourse with her father,”” was allegedly made by a representative of the plaintiff’s school district to school officials and the plaintiff’s paternal grandmother, R.L., in a private telephone conversation. No reasonable listener could have understood the statement to impute unchastity in the context in which the words were spoken (see Aronson v Wiersma, 65 NY2d at 594; see generally Qureshi v St. Barnabas Hosp. Ctr., 430 F Supp 2d 279, 288 [SD NY]). Indeed, the alleged defamatory statement revealed that the then-13-year-old plaintiff had been the victim of the crimes of rape and incest by the child’s father (see Penal Law §§ 130.30[1]; 255.26). The legal definition of “”chaste,”” as provided by Black’s Law Dictionary, is stated in toto as “”[n]ever voluntarily having had unlawful sexual intercourse”” (Black’s Law Dictionary 236 [6th ed 1990] [emphasis added]). Moreover, “”chastity”” is defined as the “”[q]uality or state of being chaste”” (id.). Unchastity may be imputed from statements alleging prostitution, promiscuity, or voluntary sexual behavior (see e.g., Walia v Vivek Purmasir & Assoc., Inc., 160 F Supp 2d 380, 394-395 [ED NY]; cf. James v Gannett Co, 40 NY2d at 420; Bement v N.Y.P. Holdings, 307 AD2d 86, 92; but see Rozanski v Fitch, 134 AD2d 944, 946). However, unchastity cannot be imputed to a woman as a result of having been the victim of a sex crime (see Snyder v Lamb, 2003 WL 1194903, *14, 2003 Cal App Unpub LEXIS 2558, *46 [Cal Ct App] [“”A victim of a sex crime is not considered unchaste””], citing Rocky Mountain News Printing Co. v Fridborn, 46 Colo 440, 450, 104 P 956, 960 [“”An unmarried female . . . who has been carnally known against her will, and as a result thereof becomes a mother, has not thereby lost her virtue, nor her chastity””]; cf. Lemacks v State of Georgia, 207 Ga App 160, 161, 427 SE2d 536, 537 [“”It is no reflection on character that one has been an unwilling victim of prior crimes””]; Summitt v State of Nevada, 101 Nev 159, 164, 697 P2d 1374, 1378 [Steffen, J., concurring in part and dissenting in [*5]part] [finding that the child-victim’s reputation would have been unaffected by a disclosure that she had been the victim of a prior sexual assault]). Here, since the plaintiff was under the age of 17, she was incapable, as a matter of law, of consenting to sexual contact (see Penal Law § 130.05[3][a]; Matter of Jessie C., 164 AD2d 731, 735).

Contrary to the majority’s conclusion, the alleged statement is not reasonably susceptible of a defamatory connotation, as the plaintiff was allegedly the victim of a sex crime. In fact, as noted by the motion court, if the statement was defamatory to any person, it was solely defamatory to the plaintiff’s father as the alleged perpetrator of the sexual abuse (see Cruz v Latin News Impacto Newspaper, 216 AD2d 50, 52 [“”Plaintiff’s claim that the statement, attributed to her, that her husband infected her as the result of patronizing prostitutes was defamatory, could be defamatory as to him, not her””]; see also Sarwer v Conde Nast Publs., 237 AD2d 191, 191 [statements published in the defendants’ magazine, Vanity Fair, in 1989, if referable to the plaintiff, were not susceptible of a defamatory connotation: “”the effect of the article as a whole being to leave the reader with only sympathy for plaintiff as a victim of child abuse””]).

Although in Katapodis v Brooklyn Spectator, Inc. (287 NY 17), the Court of Appeals held that a statement may be defamatory if it portrays the plaintiff as an object of pity, unlike the present case, Katapodis involved libel, and not the specific categories of slander per se (id. [addressing whether a written publication from 1940 referencing the plaintiff’s dire financial situation constituted libel]). Since the alleged statement did not impute unchastity to the plaintiff, and therefore, does not fall within a category of slander per se, the statement is not actionable in the absence of an allegation of special damages, regardless of whether the statement exposed the plaintiff to contempt and ridicule, or portrayed her as an object of pity (see Liberman v Gelstein, 80 NY2d at 435-436; Klein v McGauley, 29 AD2d 418, 421 [“”Contrary to the law of libel, the spoken word which results only in the victim being held up to ridicule and contempt is never actionable in a slander suit without proof of special damage, unless it falls within one of several clearly defined categories””]; Brzezinski v Tri-State Pub. Printing & Fulfillment, Inc., 2008 NY Slip Op 32754[U], *4 [Sup Ct, Suffolk County] [“”Any false publication by writing which exposes one to ridicule, hatred, contempt or obloquy, or causes him to be shunned or avoided, is libel per se, though if spoken it may be no slander. The definition of slander per se is not general, like that of libel, but is restricted and specific””]).

To find that the alleged statement is susceptible of the defamatory connotation that the plaintiff is unchaste could have a chilling effect on the reporting of suspected cases of child abuse (cf. Dombrowski v Bulson, 19 NY3d 347, 352 [expressing concern with the chilling effect of a ruling permitting the recovery of nonpecuniary damages for legal malpractice in a criminal case affecting the willingness of the defense bar to represent indigent defendants]). Such a result would run contrary to “”New York’s explicit and compelling public policy to protect children from the harmful conduct of adults”” (Matter of Binghamton City School Dist. [Peacock], 33 AD3d 1074, 1076). Indeed, New York requires certain persons, including school officials, to report cases of suspected child sexual abuse, and provides those persons with qualified immunity from civil liability in connection with such reports made in good faith (see Social Services Law §§ 413, 419; Mark G. v Sabol, 93 NY2d 710, 721; Matter of Kimberly S.M. v Bradford Cent. School, 226 AD2d 85, 88; see also Shapiro v Health Ins. Plan of Greater N.Y., 7 NY2d 56, 60, quoting Bingham v Gaynor, 203 NY 27, 31 [the qualified privilege “” grew out of the desirability in the public interest of encouraging a full and fair statement by persons having a legal or moral duty to communicate their knowledge and information about a person in whom they have an interest to another who also has an interest in such person'””]; Silverman v Clark, 35 AD3d 1, 11). This information may assist law enforcement officials in investigating and prosecuting child abuse cases (cf. People v Gearhart, 148 Misc 2d 249, 254).

The importance attached to the reporting of child abuse is critical, given that “”[c]hild abuse is one of the most difficult crimes to detect and prosecute, in large part because there often are no witnesses except the victim”” (Pennsylvania v Ritchie, 480 US 39, 60; see Matter of Philip M., 82 NY2d 238, 243). Moreover, the sexual abuse of children in family settings “”is difficult to detect because the acts are predominantly nonviolent and usually occur in secret rendering the child the [*6]only witness”” (Matter of Nicole V., 71 NY2d 112, 117). “”A child’s feelings of vulnerability and guilt and his or her unwillingness to come forward are particularly acute when the abuser is a parent”” (Pennsylvania v Ritchie, 480 US at 60). Therefore, it is essential that people be encouraged to report suspected cases of child sexual abuse (see Pearson v Miller, 211 F3d 57, 70-71 [3rd Cir]), without the fear of being subjected to litigation (see Gross v Haight, 496 So2d 1225, 1228 [La Ct App] [“”It would be most unfortunate if the threat of defamation claims should cast a chilling effect upon the willingness of persons to report suspected cases (of child abuse), where reasonable cause for suspicion exists””]).

Accordingly, based on the foregoing, I find that the amended complaint fails to state a cause of action to recover damages for slander per se, and would affirm the order insofar as appealed from.

ENTER:

Aprilanne Agostino

Clerk of the Court”

LeBlanc v Skinner             2011-03120         2012 NY Slip Op 08494    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

MARK C. DILLON, J.P.

DANIEL D. ANGIOLILLO

ANITA R. FLORIO

JEFFREY A. COHEN, JJ.

2011-03120

(Index No. 8310/08)

[*1]David LeBlanc, appellant-respondent,

v

Wayne Skinner, et al., respondents-appellants, et al., defendant.

APPEAL by the plaintiff, in an action to recover damages for defamation, as limited by his brief, from so much of an order of the Supreme Court (Elaine Slobod, J.), dated January 28, 2011, and entered in Orange County, as granted those branches of the motion of the defendants Wayne Skinner and Karen Skinner which were for summary judgment dismissing the third and fourth causes of action insofar as asserted against them, and CROSS APPEAL by the defendants Wayne Skinner and Karen Skinner, as limited by their notice of appeal and brief, from so much of the same order as denied those branches of their motion which were for summary judgment dismissing, as time-barred, the first and second causes of action insofar as asserted against them.

Calhelha & Doyle, LLC, Cornwall, N.Y. (Moacyr R. Calhelha

of counsel), for appellant-respondent.

Sussman & Watkins, Goshen, N.Y. (Christopher D. Watkins

of counsel), for respondents-

appellants.

OPINION & ORDER

COHEN, J.In this action to recover damages for defamation, we are asked to determine whether the applicable statute of limitations bars the consideration of certain allegedly defamatory statements posted on a publicly accessible Internet web log—or “”blog””—dedicated to the local community issues of Wawayanda, New York, located in Orange County, and on the local newspaper’s web site. We are also asked to determine, inter alia, whether the plaintiff was required to plead special damages regarding published accusations on these web sites that he was responsible for dumping a severed horse head into the swimming pool at a residence belonging to a member of the Town Board of the Town of Wawayanda (hereinafter the Town Board).

For the reasons stated below, we disagree with the Supreme Court’s determination that, absent a particularized allegation of special damages, the third cause of action was not actionable, but otherwise agree with its conclusions with respect to the first, second, and fourth causes of action. Accordingly, we modify the order appealed from.

Factual and Procedural Background

The defendant Wayne Skinner, a former Town Supervisor of the Town of Wawayanda, and his wife, the defendant Karen Skinner (hereinafter together the Skinner defendants), were involved in a number of Town policy disagreements with the plaintiff, David [*2]LeBlanc. Wayne Skinner was elected to his position as a Democrat. The plaintiff, a Wawayanda businessman, attended numerous Town Board meetings, voicing his concerns over a variety of issues, including property taxes, and donated money to one of Wayne Skinner’s Republican political rivals.

Nonparty Gail Soro was one of Wayne Skinner’s colleagues, and a Wawayanda Town Board member. Soro likewise was an elected Democrat. In July 2006, Soro discovered a severed horse head in her swimming pool. It was never determined who was responsible for the incident. Nonetheless, as could be expected after any incident with such cinematic bravado,[FN1] public comment ensued. Of relevance here were a number of blog entries posted on a web site allegedly dedicated to community issues and local government, and a number of comments on the local newspaper’s web site. These blog entries and comments accused the plaintiff of being responsible for the horse head incident.

The plaintiff filed a summons and complaint on July 28, 2008, commencing this action against Michael Hawkins, also known as “”wayguy,”” as well as against “”John Doe ( johnny500′),”” and “”John Doe ( wawayandafirst’),”” referencing the relevant blog profiles or monikers used by the individuals who posted the allegedly defamatory comments. Neither of the Skinner defendants was specifically identified by name in the original complaint. However, on September 18, 2008, Wayne Skinner was served with copies of the original summons and complaint as “”John Doe ( johnny500′)”” and “”John Doe ( wawayandafirst’).””

On October 20, 2008, the plaintiff filed an amended verified complaint. The amended verified complaint specifically identified Wayne Skinner as a defendant, and added Karen Skinner as a defendant. Copies of a supplemental summons and the amended verified complaint were served upon Karen Skinner on October 28, 2008.

In the amended complaint, the plaintiff alleged that, with the assistance of Hawkins, the Skinner defendants posted several defamatory statements on the Internet regarding the plaintiff. More specifically, the first and second causes of action in the amended verified complaint alleged that Hawkins, at the request and direction of the Skinner defendants, posted two allegedly defamatory statements regarding the plaintiff on August 29, 2007, and October 6, 2007, respectively, on the now-defunct web site http://www.wawayandafirst.blogspot.com (hereinafter the Wawayandafirst blogspot). In the third cause of action, the plaintiff alleged that the defendants had posted the following comment on October 30, 2007, at http://www.forums.recordonline.com, a site run by the area newspaper (hereinafter the newspaper site): “”We all know who was behind the Horse Head . . . there is only one man around town dumb enough, violent enough and with a vendetta to do that . . . Dave LeBlanc . . . I hope all this negative publicity on him destroys his business.”” The fourth cause of action alleged that the defendants posted the following comments on the newspaper site on October 30, 2007: “”Dave LeBlanc is a terrorist”” and “”Who was the one who threw the horse head in Gail’s pool . . . check it out: . . . wawayandafirstblogspot.com.””

Hawkins served a verified answer, asserting, inter alia, a cross claim against the Skinner defendants, in which he alleged that he was the “”agent and servant of the Skinner Defendants who performed actions”” at their “”request and direction.”” The Skinner defendants together answered the complaint, asserting, inter alia, an affirmative defense based on the statute of limitations, and separately answered Hawkins’s cross claim, denying the allegations thereof. Discovery ensued, including party depositions. At his deposition, Hawkins testified that the Skinner defendants were his aunt and uncle, and that they directed the creation and maintenance of the relevant blog profiles on the Wawayandafirst blogspot and the newspaper site. Hawkins also testified that the Skinner defendants controlled the subject matter of the postings, and that the Skinner defendants “”shared access”” to these created profiles. During their own respective [*3]depositions, the Skinner defendants disputed the allegations made by Hawkins, and contended that he acted of his own accord.

The plaintiff moved for summary judgment, among other things, on the complaint and dismissing the Skinner defendants’ fourth affirmative defense, which asserted that the first and second causes of action were barred by the applicable one-year statute of limitations set forth in CPLR 215(3). Hawkins opposed the motion. The Skinner defendants also opposed the motion, and cross-moved for summary judgment dismissing the complaint insofar as asserted against them, contending that all four causes of action insofar as asserted against them were time-barred. The Skinner defendants also contended that, since this is a defamation action, the plaintiff was required to allege special damages. They then submitted that the plaintiff had failed to allege special damages with particularity, and, thus, the defamation causes of action could not be sustained. The plaintiff opposed the cross motion, contending that the Skinner defendants were timely served with process. He further argued that the defamatory statements at issue were defamatory per se and, thus, the pleading of special damages was not required.

As relevant to the instant appeal, the Supreme Court, in an order dated January 28, 2011, determined that the third and fourth causes of action could not be sustained because the facts alleged therein did not constitute defamation per se, and the plaintiff failed to allege special damages with particularity. The plaintiff appeals from so much of the Supreme Court’s order as granted those branches of the Skinner defendants’ motion which were for summary judgment dismissing the third and fourth causes of action insofar as asserted against them.

The Supreme Court also denied those branches of the Skinner defendants’ cross motion which were for summary judgment dismissing, as time-barred, the first and second causes of action insofar as asserted against them. The Supreme Court found that copies of the summons and complaint had been timely served upon Wayne Skinner, as he was served with copies of the initial summons and complaint within 120 days of its timely filing. With regard to Karen Skinner, the court noted that it was undisputed that the first and second causes of action had not been timely interposed against her, but agreed with the plaintiff that Karen Skinner might be held vicariously liable for the publication of the subject statements by Hawkins and, therefore, had a unity of interest with him that was sufficient to avoid dismissal of the causes of action against her. The Skinner defendants cross-appeal from so much of the Supreme Court’s order as denied those branches of their motion which were for summary judgment dismissing, as time-barred, the first and second causes of action insofar as asserted against them.

Hawkins filed no brief with respect to the appeal or cross appeal.

The Statute of Limitations

The Skinner defendants contend that the Supreme Court erred in denying those branches of their motion which were for summary judgment dismissing, as time-barred, the first and second causes of action insofar as asserted against them.

At the outset, the Supreme Court properly concluded that the first and second causes of action were timely interposed against Wayne Skinner. The original complaint named, as defendants, “”Michael Hawkins, also known as wayguy’ ( Wayguy’), along with John Doe johnny500′ ( Johnny500′) and John Doe wawayandafirst’ ( Wawayandafirst’).”” The amended complaint, which named Wayne Skinner and Karen Skinner as defendants, noted that Hawkins was “”also known as Wayguy’ and Johnny500.'”” Accordingly, the remaining John Doe named by the original complaint—””John Doe wawayandafirst’ ( Wawayandafirst’)””—referred to Wayne Skinner, who was alleged in the complaint to be the individual responsible for issuing the Wawayandafirst blog posts. Under these circumstances, the original complaint was sufficient to have apprised Wayne Skinner that he was one of the intended defendants (see Bumpus v New York City Tr. Auth., 66 AD3d 26, 30; Rogers v Dunkirk Aviation Sales & Serv., Inc., 31 AD3d 1119, 1120). Thus, the original complaint must be deemed to have identified Wayne Skinner as one of the defendants (see CPLR 1024; Rogers v Dunkirk Aviation Sales & Serv., Inc., 31 AD3d at 1120), and the action was timely commenced against him upon the filing of the summons and complaint (see CPLR 304[a]). Moreover, copies of the summons and complaint were timely served upon Wayne Skinner within 120 days after the filing (see CPLR 306-b) and, thus, the Supreme Court properly denied that branch of the Skinner defendants’ motion which was for summary judgment dismissing, as time-barred, the first and second causes of action insofar as asserted against Wayne Skinner. [*4]

The Skinner defendants also moved for summary judgment dismissing, as time-barred, the first and second causes of action insofar as asserted against Karen Skinner. Clearly, at the time that Karen Skinner was served with copies of the supplemental summons and amended complaint on October 28, 2008, the defamation claims set forth in the first and second causes of action, which were premised on statements posted on August 29, 2007, and October 6, 2007, were in fact time-barred (see CPLR 215[3]). Karen Skinner thus met her burden of establishing, prima facie, that the statute of limitations had expired prior to the commencement of the action against her, at which point the burden shifted to the plaintiff to establish the applicability of the relation-back doctrine (see Xavier v RY Mgt. Co., Inc., 45 AD3d 677, 678).

In holding that the first and second causes of action were timely interposed against Karen Skinner, the Supreme Court, in effect, concluded that the relation-back doctrine was applicable (see CPLR 203[b]). Under the relation-back doctrine, a plaintiff may interpose a cause of action against a person or entity after the statute of limitations has expired, provided that the plaintiff had timely commenced the action against another defendant, served process upon that other defendant within the applicable statutory period, and established that the defendant previously named and served was “”united in interest”” with the person or entity sought to be added as a defendant (CPLR 203[b]). This Court has held that, in order to determine whether two defendants are united in interest—such that a plaintiff may invoke the relation-back doctrine to add a new defendant— it must be shown that:

“”(1) both claims arose out of the same conduct, transaction or occurrence, (2) the new party is united in interest’ with the original defendant, and by reason of that relationship he can be charged with such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits and (3) the new party knew or should have known that, but for an excusable mistake by plaintiff as to the identity of the proper parties, the action would have been brought against him as well”” (Brock v Bua, 83 AD2d 61, 69 [citations omitted]).

Subsequent to the issuance of this Court’s decision in Brock, the Court of Appeals held that a plaintiff’s mistake need not be “”excusable”” for the relation-back doctrine to apply (see Buran v Coupal, 87 NY2d 173, 178-182). In addition, whether parties are united in interest generally is a question of law, not a question of fact (see Connell v Hayden, 83 AD2d 30, 43). However, if the nature of the jural relationship between the defendants is disputed, then a question of fact is presented (see id. at 44).

In the instant matter, the key to the application of the relation-back doctrine is the determination of whether Karen Skinner is united in interest with an original defendant, so that, by reason of that relationship, she can be “”charged with such notice of the institution of the action that [she] will not be prejudiced in maintaining [her] defense on the merits”” (Brock v Bua, 83 AD2d at 69). Here, the plaintiff contends that Karen Skinner and her nephew Michael Hawkins shared the jural relationship of principal and agent.

Defendants are united in interest with one another only when their relationship with each other is such that their interest “”in the subject-matter [of the action] is such that [the defendants] stand or fall together and that judgment against one will similarly affect the other”” (Prudential Ins. Co. v Stone, 270 NY 154, 159). “”[T]he question of unity of interest is to be determined from an examination of (1) the jural relationship of the parties whose interests are said to be united and (2) the nature of the claim asserted against them by the plaintiff”” (Connell v Hayden, 83 AD2d at 42-43). However, defendants are not united in interest if there is the mere possibility that the new party could have a different defense than the original party (id. at 42, citing Stevens v Young, 272 App Div 784, 785). Accordingly, joint tortfeasors are generally not united in interest, since they frequently have different defenses, in that one tortfeasor usually will seek to show that he or she is not at fault, but that it was the other tortfeasor who is liable (see Connell v Hayden, 83 AD2d at 45, citing Maguire v Yellow Taxicab Corp., 253 App Div 249, 251, affd 278 NY 576). However, joint tortfeasors will be deemed to be united in interest where one is vicariously liable for the other (see Connell v Hayden, 83 AD2d at 45), such as where one tortfeasor is the agent of the other.

Accordingly, the parties are united in interest where there is a jural or legal relationship giving rise to potential vicarious liability. “”Underlying the doctrine of vicarious liability . . . is the notion of control. The person in a position to exercise some general authority or control over the wrongdoer must do so or bear the consequences”” (Kavanaugh v Nussbaum, 71 NY2d 535, 546). Agency is a jural relationship between a principal and an agent, “”which results from the [*5]manifestation of consent of one person to allow another to act on his or her behalf and subject to his or her control, and consent by the other so to act”” (Maurillo v Park Slope U-Haul, 194 AD2d 142, 146). While here, the Skinner defendants and Hawkins are related, as Hawkins is the Skinner defendants’ nephew, it is not any such intrafamilial relationship that gives rise to a purported agency relationship (see Struebel v Fladd, 75 AD3d 1164, 1166; Maurillo v Park Slope U-haul, 194 AD2d at 146). However, the fact that Hawkins is related to the Skinner defendants does not ipso facto defeat the possibility of an agency relationship, as “”members of a family may enter into a gratuitous agency relationship where there is no evidence of any payment incident to the agency relationship”” (Maurillo v Park Slope U-haul, 194 AD2d at 147).

Here, the plaintiff adduced sufficient facts which clearly raise a triable issue as to whether Hawkins was acting as an agent on behalf of the Skinner defendants. In his sworn testimony and averments, Hawkins explained that he “”would post comments verbatim from Wayne or Karen Skinner”” and that they asked him to post messages under the various pseudonyms set forth above. While Hawkins did “”not recall posting the alleged defamatory statements,”” he did not specifically deny posting them. Such an equivocal averment does not resolve the factual discrepancy as to whether Hawkins posted the alleged defamatory statements, and did so at the Skinner defendants’ request.

In a case such as this, where the jural relationship alleged is that of principal and agent, “”unity of interest does not turn upon whether the actual wrongdoer or the person or entity sought to be charged vicariously was served first”” (Matter of Parker v Port Auth. of N.Y. & N.J., 113 AD2d 763, 769 [internal quotation marks omitted]; see Connell v Hayden, 83 AD2d 30). At trial, the plaintiff may be required to establish his right to recovery against Karen Skinner, or perhaps both of the Skinner defendants, upon a theory of vicarious liability and, thus, will be obligated to prove that the wrongdoing which forms the basis of the action was committed within the scope of the Skinner defendants’ “”business.”” The defendants will likely continue to point fingers at each other, and the Skinner defendants will likely continue to deny that they are vicariously liable for any action taken by Hawkins. However, a defense that Hawkins’s alleged conduct in posting the subject statements exceeded the scope of his alleged agency relationship with the Skinner defendants does not go to the merits of the plaintiff’s defamation claims. Instead, it is a defense which “”puts the jural relationship itself at issue,”” and “”the law defers its determination to the trial at which time the defendant asserting it will be discharged by the substantive defense rather than by the Statute of Limitations”” (Matter of Parker v Port Auth. of N.Y. & N.J., 113 AD2d at 769 [citation and internal quotation marks omitted]).

On this summary judgment motion, we view the evidence in the light most favorable to the plaintiff, as the nonmoving party, and afford him the benefit of every favorable inference (see Ruiz v Griffin, 71 AD3d 1112, 1115; Franklin v 2 Guys From Long Pond, Inc., 50 AD3d 846). Moreover, a “”motion for summary judgment should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility'”” (Ruiz v Griffin, 71 AD3d at 1115, quoting Scott v Long Is. Power Auth., 294 AD2d 348, 348). “”Resolving questions of credibility, determining the accuracy of witnesses, and reconciling the testimony of witnesses are for the trier of fact”” (Gille v Long Beach City School Dist., 84 AD3d 1022, 1023; see Republic Long Is., Inc. v Andrew J. Vanacore, Inc., 29 AD3d 665; Harty v Kornish Distribs., 119 AD2d 729).

Applying these principles here, we conclude that a triable issue of fact exists as to whether the first and second causes of action in the amended complaint “”related back”” to the date of the timely filing of the original complaint against Hawkins (see CLPR 203[c]; 215[3]; see also Mondello v New York Blood Ctr.—Greater N.Y. Blood Program, 80 NY2d 219; Lancaster v Town of E. Hampton, 54 AD3d 906; Brock v Bua, 83 AD2d 61; Assad v City of New York, 238 AD2d 456, 457; Sargent v City of New York, 128 AD2d 693).

Accordingly, the Supreme Court properly denied those branches of the Skinner defendants’ motion which were for summary judgment dismissing, as time-barred, the first and second causes of action insofar as asserted against them.

Defamation Per Se

In each of the four causes of action, the plaintiff contended that the “”[d]efendants libeled Plaintiff and committed an act of defamation per se.”” The Supreme Court concluded that the defendants’ alleged conduct, as described in the third and fourth causes of action, did not constitute defamation per se and, thus, that the plaintiff’s failure to plead special damages with particularity [*6]required dismissal of those causes of action. The Supreme Court further concluded that certain epithets used to describe the plaintiff, as set forth in the fourth cause of action, were mere opinion and, hence, not actionable. The plaintiff appeals from that portion of the Supreme Court’s order which granted those branches of the Skinner defendants’ motion which were for summary judgment dismissing the third and fourth causes of action insofar as asserted against them, based on the plaintiff’s failure to plead special damages with particularity or properly allege that certain statements were fact rather than opinion.

Contrary to the plaintiff’s contention, the Supreme Court properly granted that branch of the Skinner defendants’ motion which was for summary judgment dismissing the fourth cause of action insofar as asserted against them. In the fourth cause of action, the plaintiff alleged that the defendants posted two separate comments on the newspaper site on the same date. The first comment was that “”Dave LeBlanc is a terrorist.”” The second comment asked, rhetorically, “”[w]ho was the one who threw the horse head in Gail’s pool? . . . check it out: . . . wawayandafirstblogspot.com.””

Internet forums are venues where citizens may participate and be heard in free debate involving civic concerns. It may be said that such forums are the newest form of the town meeting. We recognize that, although they are engaging in debate, persons posting to these sites assume aliases that conceal their identities or “”blog profiles.”” Nonetheless, falsity remains a necessary element in a defamation claim and, accordingly, “”only statements alleging facts can properly be the subject of a defamation action”” (600 W. 115th St. Corp. v Von Gutfeld, 80 NY2d 130, 139, cert denied 508 US 910; see Gross v New York Times Co., 82 NY2d 146, 153). Within this ambit, the Supreme Court correctly determined that the accusation on the newspaper site that the plaintiff was a “”terrorist”” was not actionable. Such a statement was likely to be perceived as “”rhetorical hyperbole, a vigorous epithet”” (Greenbelt Cooperative Publishing Assn., Inc. v Bresler, 398 US 6, 14; see Milkovich v Lorain Journal Co., 497 US 1; Immuno AG. v Moor—Jankowski, 77 NY2d 235, 254, cert denied 500 US 954). This conclusion is especially apt in the digital age, where it has been commented that readers give less credence to allegedly defamatory Internet communications than they would to statements made in other milieus (see Sandals Resorts Intl., Ltd. v Google, Inc., 86 AD3d 32, 43-44, quoting Jennifer O’Brien, Note, Putting a Face to a [Screen] Name: The First Amendment Implications of Compelling ISPS to Reveal the Identities of Anonymous Internet Speakers in Online Defamation Cases, 70 Fordham L. Rev. 2745 [2002]). Accordingly, we conclude that this statement constitued an expression of opinion, and, as such, is nonactionable.

Turning to the other posting described in the fourth cause of action, it is not clear on the face of the posting whom the poster was accusing of dumping a horse head in Gail Soro’s pool, as the posting is essentially just a cross-reference to the Wawayandafirst blogspot. Since the statements contained on the Wawayandafirst blogspot form the basis of the first and second causes of action, the mere reference to those statements is duplicative of those causes of action (see New York Univ. v Contintental Ins. Co., 87 NY2d 308, 320). Therefore, the Supreme Court correctly granted that branch of the Skinner defendants’ motion which was for summary judgment dismissing the fourth cause of action insofar as asserted against them.

However, the Supreme Court erred in granting that branch of the Skinner defendants’ motion which was for summary judgment dismissing the third cause of action insofar as asserted against them. While a plaintiff alleging defamation generally must plead and prove that he or she has sustained special damages (see Rufeh v Schwartz, 50 AD3d 1002, 1003; Liberman v Gelstein, 80 NY2d 429, 434-435), any written article is “”actionable without alleging special damages if it tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society”” (Sydney v Macfadden Newspaper Publ. Corp., 242 NY 208, 211-212; see Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 379, cert denied 434 US 969; Donati v Queens Ledger Newspaper Group, 240 AD2d 696). Our society has long recognized that when statements fall within one of these established categories of per se defamation, “”the law presumes that damages will result, and they need not be alleged or proven”” (Liberman v Gelstein, 80 NY2d 429, 435). Indeed, important social values underlie the law of defamation, as “”[s]ociety has a pervasive and strong interest in preventing and redressing attacks upon reputation”” (Rosenblatt v Baer, 383 US 75, 86). The published allegation that the plaintiff put a severed horse head in a Town Board member’s swimming pool constituted defamation per se under this standard and, therefore, did not require the plaintiff to plead special damages (see Donati v Queens Ledger Newspaper Group, 240 AD2d 696). [*7]Moreover, the accusation that the plaintiff placed a horse head in a political rival’s pool, if true, describes conduct that would constitute serious crimes. A false published allegation that a person committed a serious crime is also a ground for asserting a cause of action to recover damages for defamation per se (see Geraci v Probst, 15 NY3d 336, 344; Knutt v Metro Intern, S.A., 91 AD3d 915, 916), thus relieving the plaintiff from pleading special damages.

Accordingly, the order is modified, on the law, by deleting the provision thereof granting that branch of the motion of the defendants Wayne Skinner and Karen Skinner which was for summary judgment dismissing the third cause of action insofar as asserted against them, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from.

DILLON, J.P., ANGIOLILLO and FLORIO, JJ., concur.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion of the defendants Wayne Skinner and Karen Skinner which was for summary judgment dismissing the third cause of action insofar as asserted against them, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

ENTER:

Aprilanne Agostino

Clerk of the Court

Footnotes

Footnote 1:. While the discovery of any deliberately placed mutilated animal carcass in a family swimming pool would be shocking and noteworthy, the choice of a severed horse head immediately evokes to many the infamous scene from Mario Puzo’s novel, “”The Godfather,”” as immortalized in the film directed by Francis Ford Coppola. The scene, probably one of the most iconic in cinematic history, has come to exemplify an act of intimidation through violence, a reminder of power, and a warning that a request or “”offer”” from a Godfather or leader of an organized crime family should not be “”refused.”””

Lopreiato v Scotti             2011-10124         2012 NY Slip Op 08495    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

DANIEL D. ANGIOLILLO, J.P.

THOMAS A. DICKERSON

L. PRISCILLA HALL

LEONARD B. AUSTIN, JJ.

2011-10124

(Index No. 17456/07)

[*1]Onofrio Lopreiato, etc., et al., plaintiffs, Nicola Lopreiato, etc., et al., appellants,

v

Gavin Scotti, etc., et al., respondents.

Eric Turkewitz, New York, N.Y., for appellants.

Alan B. Brill, P.C., Suffern, N.Y. (Sheila S. Rosenrauch of

counsel), for respondents.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs Nicola Lopreiato and Vana Lopreiato appeal from an order of the Supreme Court, Westchester County (Liebowitz, J.), entered April 27, 2011, which, upon a jury verdict on the issue of damages finding that the plaintiff Nicola Lopreiato did not sustain a serious injury within the meaning of Insurance Law § 5102(d), denied their motion pursuant to CPLR 4404, inter alia, to set aside the verdict as against the weight of the evidence and for a new trial on the issue of damages.

ORDERED that the order is affirmed, with costs.

“”[A] jury verdict in favor of a defendant should not be set aside as contrary to the weight of the evidence unless the evidence preponderates so heavily in the plaintiff’s favor that the verdict could not have been reached on any fair interpretation of the evidence”” (Daniels v Simon, 99 AD3d 658, 659; see Lolik v Big V Supermarkets, 86 NY2d 744, 746). “”Whether a jury verdict should be set aside as contrary to the weight of the evidence does not involve a question of law, but rather requires a discretionary balancing of many factors”” (Jean-Louis v City of New York, 86 AD3d 628, 628-629; see Cohen v Hallmark Cards, 45 NY2d 493, 499; Nicastro v Park, 113 AD2d 129, 133). “” It is for the jury to make determinations as to the credibility of the witnesses, and great deference in this regard is accorded to the jury, which had the opportunity to see and hear the witnesses'”” (Jean-Louis v City of New York, 86 AD3d at 629, quoting Exarhouleas v Green 317 Madison, LLC, 46 AD3d 854, 855). Here, contrary to the contention of the plaintiffs Nicola Lopreiato and Vana Lopreiato (hereinafter together the appellants), the jury’s determination that Nicola Lopreiato did not sustain an injury under the 90/180 day category of Insurance Law § 5102(d) and, thus, that he did not sustain a serious injury within the meaning of that section, was not against the weight of the evidence.

The appellants’ remaining contentions either are without merit or not properly before this Court. [*2]

ANGIOLILLO, J.P., DICKERSON, HALL and AUSTIN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

“M.V.B. Collision, Inc. v Rovt”     2011-01866         2012 NY Slip Op 08496    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

MARK C. DILLON, J.P.

THOMAS A. DICKERSON

L. PRISCILLA HALL

LEONARD B. AUSTIN, JJ.

2011-01866

(Index No. 7326/10)

[*1]M.V.B. Collision, Inc., doing business as Mid Island Collision, respondent,

v

Olga Rovt, appellant.

Feldman & Feldman, LLP, Smithtown, N.Y. (Leonard B.

Feldman of counsel), for appellant.

Steven F. Goldstein, LLP, Carle Place, N.Y. (Gina M.

Arnedos of counsel), for respondent.

DECISION & ORDER

In an action to recover damages for breach of contract and on an account stated, the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Adams, J.), entered January 14, 2011, as denied her cross motion, inter alia, for summary judgment dismissing the complaint.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the defendant’s cross motion which was for summary judgment dismissing the cause of action to recover damages for breach of contract, and substituting therefor a provision granting that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

In May 2007, the defendant’s vehicle was brought to an automotive repair shop owned by the plaintiff, M.V.B. Collision, Inc., doing business as Mid Island Collision (hereinafter Mid Island). After the defendant’s insurance carrier offered to pay an amount less than that contained in Mid Island’s demand for payment, Mid Island served a notice of lien and sale upon the defendant. The defendant and the insurer of her vehicle then commenced a special proceeding against Mid Island pursuant to Lien Law § 201-a to challenge the validity of the lien. In January 2010, the parties to the special proceeding entered into a stipulation to discontinue the proceeding “”without prejudice.”” Thereafter, in April 2010, Mid Island commenced this action, asserting causes of action to recover damages for breach of contract and on an account stated. The plaintiff moved for summary judgment on the complaint, and the defendant cross-moved, inter alia, for summary judgment dismissing the complaint, contending, among other things, that this action was barred by the doctrines of collateral estoppel and the election of remedies. The Supreme Court, inter alia, denied the cross motion.

“”Collateral estoppel, or issue preclusion, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party [or those in privity], whether or not the tribunals or causes of action are the same'”” [*2](Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 349, quoting Ryan v New York Tel. Co., 62 NY2d 494, 500). “”This doctrine applies only if the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the plaintiff had a full and fair opportunity to litigate the issue in the earlier action'”” (City of New York v Welsbach Elec. Corp., 9 NY3d 124, 128, quoting Parker v Blauvelt Volunteer Fire Co., 93 NY2d at 349). “”[C]ollateral estoppel effect will only be given to matters actually litigated and determined in a prior action”” (Kaufman v Eli Lilly & Co., 65 NY2d 449, 456 [internal quotation marks omitted]). Here, the issues of the existence of a binding contract and an account stated were never determined in the prior special proceeding to challenge the validity of Mid Island’s lien. In addition, Mid Island’s stipulation to discontinue the proceeding cannot be construed as a determination following a full and fair opportunity to litigate the issues that would be necessary to collaterally estop Mid Island from establishing that the defendant breached the parties’ contract and was liable to Mid Island on an account stated (see Maybaum v Maybaum, 89 AD3d 692, 695; North Shore-Long Is. Jewish Health Sys., Inc. v Aetna US Healthcare, Inc., 27 AD3d 439, 441; Singleton Mgt. v Compere, 243 AD2d 213, 217-218). Accordingly, this action is not barred by the doctrine of collateral estoppel.

Furthermore, since the lien and the plenary action “”are not inconsistent, maintenance of the latter is not precluded under the doctrine of election of remedies”” (Corrao v Corrao, 133 AD2d 245, 248; cf. Simon v Boyer, 51 AD2d 879, affd 41 NY2d 822).

However, the Supreme Court should have granted that branch of the defendant’s cross motion which was for summary judgment dismissing the cause of action to recover damages for breach of contract on the ground that there was no binding contract. In support of her cross motion, the defendant demonstrated, prima facie, that the subject agreement did not constitute a binding contract since it did not set forth the cost of the services to be performed by the plaintiff (see Matter of Hall v Barnes, 225 AD2d 837, 838; General Motors Acceptance Corp. v Chase Collision, 140 Misc 2d 1083, 1086; see generally Matter of Express Indus. & Term. Corp. v New York State Dept. of Trans., 93 NY2d 584, 589), or specify any method by which such cost would be determined (see Cobble Hill Nursing Home v Henry & Warren Corp., 74 NY2d 475, 483-484, cert denied 498 US 816; Matter of McManus, 83 AD2d 553, 554, affd 55 NY2d 855). In opposition, the plaintiff failed to raise a triable issue of fact as to the existence of a binding contract (see Alvarez v Prospect Hosp., 68 NY2d 320, 324).

We do not consider the defendant’s contention that the cause of action to recover on an account stated should be dismissed on the ground that there was no agreement with respect to the amount of the balance due, since it was improperly raised for the first time in the defendant’s reply papers, and not considered by the Supreme Court (see Stock v Morizzo, 92 AD3d 672; Goldman v A & E Club Props., LLC, 89 AD3d 681, 683).

The defendant’s remaining contentions are without merit.

DILLON, J.P., DICKERSON, HALL and AUSTIN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

McElduff v McElduff       2012-01133         2012 NY Slip Op 08497    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

WILLIAM F. MASTRO, J.P.

DANIEL D. ANGIOLILLO

SANDRA L. SGROI

ROBERT J. MILLER, JJ.

2012-01133

(Index Nos. 10569/10, 13096/10)

[*1]Edith McElduff, plaintiff-appellant,

v

Edward McElduff, respondent; Nancy M. Eraca, nonparty- appellant. (Action No. 1) Edward McElduff, respondent, Edith Marie McElduff, defendant-appellant; Nancy M. Eraca, nonparty- appellant. (Action No. 2)

Edith McElduff, Elmira, N.Y., named in Action No. 2 as Edith

Marie McElduff, plaintiff-appellant pro se in Action No. 1and

defendant-appellant pro se in Action No. 2.

Nancy M. Eraca, Elmira, N.Y., nonparty-appellant pro se.

Larkin, Axelrod, Ingrassia & Tetenbaum, LLP, Newburgh,

N.Y. (William J. Larkin III of counsel),

for respondent.

DECISION & ORDER

In two related actions for a divorce and ancillary relief, the wife appeals, and nonparty Nancy M. Eraca separately appeals, as limited by their respective briefs, from so much of an order of the Supreme Court, Orange County (Ecker, J.), dated December 22, 2011, as granted that branch of the husband’s cross motion which was to disqualify Nancy M. Eraca as the wife’s attorney in both actions pursuant to the advocate-witness rule.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.

The nonparty-appellant’s contention, in effect, that the husband waived the right to seek disqualification, is without merit under the circumstances of this case (see M.A.C. Duff, Inc. v ASMAC, LLC, 61 AD3d 828; cf. Matter of Aaron W. v Shannon W., 96 AD3d 960; Matter of Lovitch v Lovitch, 64 AD3d 710).

“”The disqualification of an attorney is a matter that rests within the sound discretion of the Supreme Court”” (Trimarco v Data Treasury Corp., 91 AD3d 756, 756; see Nationscredit Fin. Servs. Corp. v Turcios, 41 AD3d 802). In order to disqualify counsel pursuant to the advocate-witness rule, the moving party must demonstrate that (1) the testimony of the opposing party’s counsel is necessary to his or her case, and (2) such testimony would be prejudicial to the opposing [*2]party (see S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437, 446; Trimarco v Data Treasury Corp., 91 AD3d at 757; Daniel Gale Assoc., Inc. v George, 8 AD3d 608, 609). Here, the husband demonstrated that disqualification of Nancy M. Eraca as the wife’s attorney was warranted. Accordingly, the Supreme Court properly granted that branch of the husband’s cross motion which was for disqualification.

MASTRO, J.P., ANGIOLILLO, SGROI and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

“Ozimek v Staten Is. Physicians Practice, P.C.”    2011-07149         2012 NY Slip Op 08498    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

DANIEL D. ANGIOLILLO, J.P.

RUTH C. BALKIN

PLUMMER E. LOTT

SHERI S. ROMAN, JJ.

2011-07149

(Index No. 150001/10)

[*1]Nancy A. Ozimek, et al., appellants,

v

Staten Island Physicians Practice, P.C., et al., defendants, Shashikant Kulkarni, etc., respondent. Powers & Santola, LLP, Albany, N.Y. (Michael J. Hutter of counsel), for appellants.

Gerspach Sikoscow, LLP, New York, N.Y. (Alexander Sikoscow

of counsel), for respondent.

DECISION & ORDER

In an action to recover damages for medical malpractice and lack of informed consent, etc., the plaintiffs appeal from an order of the Supreme Court, Richmond County (McMahon, J.), dated June 21, 2011, which granted the motion of the defendant Shashikant Kulkarni for summary judgment dismissing the complaint insofar as asserted against him as time-barred.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant Shashikant Kulkarni for summary judgment dismissing the complaint insofar as asserted against him as time-barred is denied.

On March 10, 2007, the plaintiff Nancy A. Ozimek (hereinafter the injured plaintiff) underwent a mammogram at the office of the defendant Staten Island Physicians Practice, P.C. (hereinafter SIPP). The mammogram was studied by the defendant Shashikant Kulkarni, a radiologist employed by SIPP. In letters to the injured plaintiff dated March 22, 2007, and June 9, 2007, respectively, Kulkarni informed the injured plaintiff that the mammogram “”showed a finding”” that required additional examination, and requested that the injured plaintiff contact his office to schedule an “”important follow-up visit.”” On July 10, 2007, the injured plaintiff returned to SIPP for a follow-up visit. A mammogram was performed, but because there was no radiologist on site, the defendant Taksin Ratnarathorn, another doctor at SIPP, recommended that the injured plaintiff undergo additional examination and an ultrasound at an additional follow-up visit. The injured plaintiff returned to SIPP for an ultrasound on July 27, 2007. In a report dated July 27, 2007, Ratnarathorn noted the existence of cysts and lymph nodes in and around the injured plaintiff’s breasts, but stated that these cysts and lymph nodes appeared benign. Ratnarathorn recommended a routine follow-up mammogram in one year. On August 9, 2008, the injured plaintiff returned to SIPP for a screening. In a report dated August 14, 2008, Robert Andrews, another doctor at SIPP, noted that the findings in the injured plaintiff’s breasts were “”benign in appearance,”” and recommended a routine follow-up mammogram in one year. The injured plaintiff was diagnosed with breast cancer in the spring of 2009.

On January 11, 2010, the plaintiffs commenced this action against Kulkarni, among others, alleging that Kulkarni was negligent in failing to appreciate the serious nature of the [*2]developing mass in the injured plaintiff’s right breast after the mammogram of March 10, 2007, and failing to timely recommend that the injured plaintiff go to a surgeon to biopsy the mass in the right breast after the mammogram of March 10, 2007. The Supreme Court granted Kulkarni’s motion for summary judgment dismissing the complaint insofar as asserted against him as time-barred, and the plaintiffs appeal.

Kulkarni established his prima facie entitlement to judgment as a matter of law by demonstrating that the action was commenced more than two years and six months after the alleged acts and omissions which constituted the malpractice cause of action insofar as asserted against him (see Cox v Kingsboro Med. Group, 88 NY2d 904, 906; Rosenthal v So, 72 AD3d 784, 784-785; Mule v Peloro, 60 AD3d 649, 650). However, in opposition, the plaintiffs raised a triable issue of fact as to whether the injured plaintiff was undergoing a continuous course of treatment with respect to the nodules in her breasts at least through July 27, 2007, which is less than two years and six months prior to the commencement of this action (see CPLR 214-a; Cherise v Braff, 50 AD3d 724, 726; Sosnoff v Jackman, 45 AD3d 568, 570; Texeria v BAB Nuclear Radiology, P.C., 43 AD3d 403, 404-405). Although Kulkarni presented evidence that he left the employ of SIPP on July 6, 2007, and did not personally treat the injured plaintiff after that date, the “” continuous treatment doctrine may be applied to a physician who has left a medical group, by imputing to him or her the continued treatment provided by subsequently-treating physicians in that group'”” (Mule v Peloro, 60 AD3d at 650, quoting Solomonik v Elahi, 282 AD2d 734, 735; see Watkins v Fromm, 108 AD2d 233, 239-242). Accordingly, the Supreme Court should have denied Kulkarni’s motion for summary judgment dismissing the complaint insofar as asserted against him as time-barred.

In light of our determination, we need not reach the plaintiffs’ remaining contention.

ANGIOLILLO, J.P., BALKIN, LOTT and ROMAN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Fryer   2011-01771         2012 NY Slip Op 08499    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

MARK C. DILLON, J.P.

CHERYL E. CHAMBERS

SANDRA L. SGROI

ROBERT J. MILLER, JJ.

2011-01771

[*1]People of State of New York, respondent,

v

Walter Dwight Fryer, appellant.

Kent V. Moston, Hempstead, N.Y. (Jeremy L. Goldberg and

Dori Cohen of counsel), for appellant.

Kathleen M. Rice, District Attorney, Mineola, N.Y. (Sarah S.

Rabinowitz of counsel; Jordan Hoch

on the brief), for respondent.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Nassau County (St. George, J.), dated January 14, 2011, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.

ORDERED that the order is affirmed, without costs or disbursements.

Only the defendant’s contention that he was improperly assessed 15 points under risk factor 11 for a history of drug and alcohol abuse on the ground that his more recent history was one of prolonged abstinence is preserved for appellate review (see People v Kyle, 64 AD3d 1177; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 15 [2006]). The defendant’s remaining contentions regarding this risk factor are unpreserved for appellate review since he failed to raise those grounds before the Supreme Court. In any event, the defendant’s contentions are without merit.

The Supreme Court properly assessed 15 points under risk factor 14 for the defendant’s release into the community without supervision (see People v Orengo, 40 AD3d 609, 610).

Correction Law § 168-n(3) requires a court making a risk level determination pursuant to the Sex Offender Registration Act (hereinafter SORA) to “”render an order setting forth its determinations and the findings of fact and conclusions of law on which the determinations are based.”” Here, the Supreme Court failed to adequately set forth findings of fact and conclusions of law to support its denial of the defendant’s request for a downward departure from his presumptive designation as a level three sex offender. However, remittal to the Supreme Court is not required, since the record is sufficient for this Court to make its own findings of fact and conclusions of law (see People v Watson, 95 AD3d 978).

A downward departure from a sex offender’s presumptive risk level generally is only warranted where there exists a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the SORA Guidelines (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]; People v Fernandez, 91 AD3d [*2]737). A defendant seeking a downward departure has the initial burden of (1) identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the SORA Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence (see People v Watson, 95 AD3d at 979). A court may choose to downwardly depart from the risk assessment “”in the appropriate case and in those instances where (i) the victim’s lack of consent is due only to inability to consent by virtue of age and (ii) scoring 25 points [for sexual contact with the victim, risk factor 2] results in an over-assessment of the offender’s risk to public safety”” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 9 [2006]). Here, although there was no evidence of forcible compulsion, a downward departure is not warranted given the age disparity between the 26-year-old defendant and the 13-year-old complainant (see People v Wyatt, 89 AD3d 112, 130; People v Modica, 80 AD3d 590, 592; cf. People v Goossens, 75 AD3d 1171; People v Brewer, 63 AD3d 1604).

The defendant’s remaining contentions are unpreserved for appellate review and, in any event, without merit.

DILLON, J.P., CHAMBERS, SGROI and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Jones  2011-00273         2012 NY Slip Op 08500    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

REINALDO E. RIVERA, J.P.

RUTH C. BALKIN

JOHN M. LEVENTHAL

SYLVIA HINDS-RADIX, JJ.

2011-00273

[*1]People of State of New York, respondent,

v

Parrish Jones, appellant.

Lynn W. L. Fahey, New York, N.Y. (William Kastin of counsel;

Miles Pope on the brief), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John

M. Castellano, Jeannette Lifschitz, and

Tina Grillo of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Grosso, J.), dated November 18, 2010, as, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

The Supreme Court’s determination, pursuant to Correction Law article 6-C, to assess the defendant 20 points for risk factor 6 was supported by clear and convincing evidence based, inter alia, on facts contained in the case summary prepared by the Board of Examiners of Sex Offenders and the risk assessment instrument (see People v Wiedeman, 51 AD3d 888, 888-889). The case summary establishes by clear and convincing evidence that, immediately preceding the sexual assault, the victim was choked until she fell to the floor, stopped moving, and was in and out of consciousness during the sexual assault. As such, she was physically helpless within the meaning of Penal Law § 130.00(7) when she was sexually assaulted (see generally People v Cecunjanin, 16 NY3d 488, 492; People v Battease, 74 AD3d 1571, 1573-1574; People v Chapman, 54 AD3d 507, 509-510; People v Green, 298 AD2d 143; People v Conto, 218 AD2d 665, 666; People v Huurre, 193 AD2d 305, 306-307, affd 84 NY2d 930).

The defendant’s contention that assessing him 20 points under risk factor 5 and 20 points under risk factor 6 constitutes improper double counting is unpreserved for appellate review (see People v Fredlund, 38 AD3d 636) and, in any event, without merit (see People v Caban, 61 AD3d 834, 835).

Accordingly, the defendant was properly designated a level three sex offender.

In light of our determination, we need not reach the defendant’s remaining contention.

RIVERA, J.P., BALKIN, LEVENTHAL and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Richardson       2010-03515         2012 NY Slip Op 08501    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

DANIEL D. ANGIOLILLO, J.P.

SANDRA L. SGROI

JEFFREY A. COHEN

ROBERT J. MILLER, JJ.

2010-03515

[*1]People of State of New York, respondent,

v

Levogie Richardson, appellant. Michael G. Paul, New City, N.Y., for appellant.

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Dutchess County (Dolan, J.), dated March 30, 2010, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.

ORDERED that the order is affirmed, without costs or disbursements.

The New York State Board of Examiners of Sex Offenders (hereinafter the Board) prepared a Risk Assessment Instrument (hereinafter the RAI) for the defendant which assessed points for various risk factors and rendered a total score which placed the defendant in presumptive risk level two under the Sex Offender Registration Act (hereinafter SORA) (see generally People v Johnson, 11 NY3d 416, 421; People v Wyatt, 89 AD3d 112, 117-119; Correction Law § 168-n[2], [3]). At the SORA risk level determination hearing, the County Court determined that the People established by clear and convincing evidence the facts in support of six risk factors for a point total of 100, within presumptive risk level two, and further departed upward to risk level three upon the application of the People and the Board’s recommendation.

The defendant contends that the County Court erred in assessing points for three of the six risk factors under which he was assessed points in the RAI. On an appeal from a risk level determination proceeding, where, as here, a sex offender disputes the points assessed under one or more risk factors, this Court must determine whether the People met their burden of establishing the facts in support of the determination by clear and convincing evidence (see People v Wyatt, 89 AD3d at 118).

The People met that burden here with evidence including the plea and sentencing minutes, the presentence report, psychiatric reports, the complainant’s medical records, and the Board’s case summary. The evidence established clearly and convincingly that the defendant inflicted physical injury on the victim, which supported the assessment of 15 points under risk factor 1 (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [2006 ed.] [hereinafter the Guidelines or Commentary] at 8; Penal Law § 10.00[9]; People v Chiddick, 8 NY3d 445, 447; People v Monserrate, 90 AD3d 785, 787), that the victim was asleep at the beginning of the sexual assault and, thus, physically helpless, which supported the assessment of 20 points under risk factor 6 (see Commentary at 11; Penal Law § 130.00[7]; People v Duff, 96 AD3d 1031, lv denied 19 NY3d 810; People v Howell, 82 AD3d 857), and that the defendant had a history of drug abuse, which supported the assessment of 15 points under risk factor 11 (see People v Crandall, 90 AD3d 628, 629-630). [*2]

The defendant further contends that the County Court erred in granting the People’s application, upon the recommendation of the Board, for an upward departure to risk level three. A court may exercise its discretion and depart upward from the presumptive risk level where “”it concludes that there exists an aggravating . . . factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines”” (Commentary at 4). The aggravating factor “”must tend to establish a higher likelihood of reoffense or danger to the community and be of a kind, or to a degree, that is otherwise not adequately taken into account by the Guidelines”” and “”the People must prove the facts in support of the aggravating factor by clear and convincing evidence”” (People v Wyatt, 89 AD3d at 123; see Correction Law § 168-n[3]).

Contrary to the defendant’s contention, the People demonstrated by clear and convincing evidence the existence of an aggravating factor that was not adequately taken into account by the Guidelines with evidence that the defendant suffered from a serious mental illness of longstanding and continuing duration which must be controlled by prescribed medication, that he had committed the instant sexual offense when he had failed to take prescribed medication and had recently been released from an emergency psychiatric clinic, that he had a history of frequent noncompliance with taking his medication, that he had difficulty in finding an appropriate residential setting when not incarcerated, and that his behavior was unpredictable and violent when he was not medicated or supervised (see People v Bogert, 91 AD3d 925, 926). Upon making this determination, the County Court providently exercised its discretion in adopting the Board’s recommendation and granting the People’s application for an upward departure (see People v Wyatt, 89 AD3d at 123).

ANGIOLILLO, J.P., SGROI, COHEN and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Tineo-Morales                2011-09640         2012 NY Slip Op 08502    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

REINALDO E. RIVERA, J.P.

RUTH C. BALKIN

JOHN M. LEVENTHAL

SYLVIA HINDS-RADIX, JJ.

2011-09640

(Index No. 56/10)

[*1]People of State of New York, respondent,

v

Leurys Tineo-Morales, appellant.

Robert C. Mitchell, Riverhead, N.Y. (James H. Miller III of

counsel), for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Edward A.

Bannan of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated September 27, 2011, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C.

ORDERED that the order is reversed, on the facts and in the exercise of discretion, without costs or disbursements, and the defendant is designated a level one sex offender.

At issue is whether the County Court properly rejected the recommendation of the Board of Examiners of Sex Offenders for a downward departure from the defendant’s presumptive risk level two designation to a risk level one designation. The evidence in the record established by a preponderance of the credible evidence the mitigating factors supporting that recommendation based upon information in the presentence report and the case summary (see People v Crandall, 90 AD3d 628, 629; People v Wyatt, 89 AD3d 112, 128). Moreover, “”based upon an examination of all [of the] circumstances relevant to the offender’s risk of reoffense and danger to the community”” (People v Madison, 98 AD3d 573, 574), we conclude that the presence of a number of factors reduce the defendant’s risk of reoffending. These factors include the fact that the defendant had no prior criminal background, that the defendant’s relationship with the victim was consensual, that the victim chose to maintain that relationship after she reached adulthood, and that the defendant appears to be close to his family. Accordingly, the defendant’s application for a downward departure from his presumptive risk level two designation to a risk level one designation should have been granted, and he should have been designated a level one sex offender.

RIVERA, J.P., BALKIN, LEVENTHAL and HINDS-RADIX, JJ., concur.

ENTER: [*2]

Aprilanne Agostino

Clerk of the Court”

People v Whidbee           2011-06053         2012 NY Slip Op 08503    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

PETER B. SKELOS, J.P.

L. PRISCILLA HALL

LEONARD B. AUSTIN

SYLVIA HINDS-RADIX, JJ.

2011-06053

[*1]People of State of New York, respondent,

v

Charles Whidbee, appellant. Robert C. Mitchell, Riverhead, N.Y. (James H. Miller III of counsel), for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Rosalind C.

Gray of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated May 18, 2011, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.

ORDERED that the order is affirmed, without costs or disbursements.

The County Court correctly determined that it lacked the discretion to downwardly depart from the presumptive risk level because the defendant failed to identify, as a matter of law, a mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the Sex Offender Registration Act Risk Assessment Guidelines and Commentary (2006 ed.) (hereinafter the Guidelines and Commentary) (see People v Wyatt, 89 AD3d 112, 124, 128). Specifically, contrary to the defendant’s contention, the fact that the defendant, of his own volition, did not complete his sex offense, was adequately taken into account by the assessment of 0 points for risk factor two: “”Sexual Contact with Victim.”” As suggested in the Commentary to the Guidelines, the direction to assess 0 points in that category where no sexual contact actually occurred contemplates the situation in which there was no sexual contact with the victim due to the defendant’s “”change of mind”” (Guidelines and Commentary at 9). Accordingly, the mitigating factor cited by the defendant has adequately been taken into account by the Guidelines and Commentary, and, therefore, cannot serve as the basis for a downward departure (see generally People v Wyatt, 89 AD3d at 124, 128).

SKELOS, J.P., HALL, AUSTIN and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino [*2]

Clerk of the Court”

Reed v Cornell Univ.       2011-09037         2012 NY Slip Op 08504    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

ANITA R. FLORIO, J.P.

JOHN M. LEVENTHAL

LEONARD B. AUSTIN

SHERI S. ROMAN, JJ.

2011-09037

2012-01326

(Index No. 5131/05)

[*1]Lynn Reed, appellant,

v

Cornell University, et al., respondents. Anthony J. Siano, White Plains, N.Y., for appellant.

Nelson E. Roth and Valerie Cross Dorn, Ithaca, N.Y., for

respondents (one brief filed).

DECISION & ORDER

In an action to recover damages for breach of contract and negligence, the plaintiff appeals from (1) an order of the Supreme Court, Dutchess County (Brands, J.), dated August 8, 2011, which granted the defendants’ motion, in effect, to strike the note of issue on the ground that the action had already been dismissed in 2007, and (2) so much of an order of the same court entered January 18, 2012, as denied that branch of her motion which was, in effect, to restore this action to the trial calendar.

ORDERED that the order dated August 8, 2011, is reversed, on the law, and the defendants’ motion, in effect, to strike the note of issue on the ground that the action had already been dismissed in 2007 is denied; and it is further,

ORDERED that the order entered January 18, 2012, is reversed insofar as appealed from, on the law, and that branch of the plaintiff’s motion which was, in effect, to restore this action to the trial calendar is granted; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

In October 2005, the plaintiff commenced this action against the defendants to recover damages for breach of contract and negligence. The defendants answered the complaint in December 2005, and the parties conducted discovery. The parties conducted depositions in June 2007, and the defendants thereafter served supplemental discovery demands upon the plaintiff.

While discovery was pending in this action, the plaintiff was involved as a respondent in another proceeding, entitled Matter of Morse Hill Associates, LLC, and commenced in the Supreme Court, Dutchess County, under Index No. 1621/04, to dissolve Morse Hill Associates, LLC, pursuant to Limited Liability Company Law § 702. A judgment in the amount of $75,000 was entered against her in the Morse Hill proceeding, and the Supreme Court in this action entered an order enjoining any payment of money damages in this action to the plaintiff while the Morse Hill judgment remained unsatisfied. The plaintiff appealed the judgment in the Morse Hill proceeding [*2]and this Court reversed the judgment in a decision and order dated April 15, 2008 (see Matter of Morse Hill Assoc., LLC, 50 AD3d 906). Subsequently, in an order dated January 12, 2010, the Supreme Court, as a consequence of the reversal of the judgment in the Morse Hill proceeding, lifted the injunction entered in this action.

On July 8, 2010, the plaintiff served the defendants with notice that she intended to call an expert witness at the time of trial. On October 22, 2010, the plaintiff served the defendants with a response to their supplemental and second supplemental discovery demands.

On April 12, 2011, the plaintiff filed a note of issue. The defendants moved, in effect, to strike the note of issue on the ground that discovery, which included a nonparty witness deposition and a supplemental response to their second supplemental discovery demand, remained outstanding.

The Supreme Court, in an order dated August 8, 2011, struck the note of issue on the ground that this case had already been dismissed in 2007. The order recited that the plaintiff “”would have to move to vacate the dismissal and restore the matter, and would have to provide the court with an explanation of what occurred and a legal basis to re-open this case.”” The plaintiff thereafter moved, inter alia, in effect, to restore this action to the trial calendar. In an order entered January 18, 2012, the Supreme Court denied the plaintiff’s motion on the ground that she did not provide a reasonable excuse for her delay in conducting discovery, and had engaged in willful and dilatory conduct by failing to provide the defendants with the deposition transcripts of their witnesses. The plaintiff appeals from both orders.

The Supreme Court incorrectly held that the case had been dismissed in 2007, and there is nothing in the record that would support such a conclusion (see Rakha v Pinnacle Bus Servs., 98 AD3d 657, 658; Matter of Transtechnology Corp. v Assessor, 71 AD3d 1034, 1037; Express Shipping, Ltd. v Gold, 63 AD3d 669, 671; see also Baczkowski v Collins Constr. Co., 89 NY2d 499, 504, 505; Tolmasova v Umarova, 90 AD3d 1028, 1029; Docteur v Interfaith Med. Ctr., 90 AD3d 814, 815; Patel v MBG Dev., Inc., 41 AD3d 682, 682-683). Thus, the Supreme Court improperly granted the defendants’ motion to strike the note of issue on the ground that the action had been dismissed in 2007, and, as a consequence, improperly imposed a requirement upon the plaintiff to move to vacate that dismissal. In light of the foregoing, the action should have been restored and the note of issue should not have been stricken. Accordingly, the Supreme Court should have granted that branch of the plaintiff’s motion which was, in effect, to restore this action to the trial calendar without considering whether the plaintiff had a reasonable excuse for the delay or whether she engaged in dilatory conduct (see Andre v Bonetto Realty Corp., 32 AD3d 973, 974-975; Corporate Visions, Inc. v Sterling Promotional Corp., 21 AD3d 983, 983; Klevanskaya v Khanimova, 21 AD3d 350, 350; Khaolaead v Leisure Video, 18 AD3d 820, 821; Bar-El v Key Food Stores Co., Inc., 11 AD3d 420, 421; Kallicharan v Coombes Props., Inc., 7 AD3d 578, 579; Farley v Danaher Corp., 295 AD2d 559, 560; Lopez v Imperial Delivery Serv., 282 AD2d 190, 200).

The defendants’ remaining contentions are without merit.

FLORIO, J.P., LEVENTHAL, AUSTIN and ROMAN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Reynolds v Thompson   2012-04250         2012 NY Slip Op 08505    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

PETER B. SKELOS, J.P.

CHERYL E. CHAMBERS

SANDRA L. SGROI

SYLVIA HINDS-RADIX, JJ.

2012-04250

(Index No. 15098/08)

[*1]Sherlock Reynolds, appellant,

v

Margreta Thompson, respondent.

Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for

appellant.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Agate, J.), entered February 24, 2012, which granted that branch of the defendant’s motion which was for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.

ORDERED that the order is affirmed, with costs.

The defendant met her prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). The defendant submitted competent medical evidence establishing, prima facie, that the alleged injuries to the cervical and lumbar regions of the plaintiff’s spine did not constitute serious injuries within the meaning of Insurance Law § 5102(d) (see Fudol v Sullivan, 38 AD3d 593, 594), and that the plaintiff did not sustain a serious injury under the 90/180-day category of Insurance Law § 5102(d) (see Richards v Tyson, 64 AD3d 760, 761).

The plaintiff failed to raise a triable issue of fact in opposition. Thus, the Supreme Court properly granted that branch of the defendant’s motion which was for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.

In view of the foregoing, we do not address the plaintiff’s remaining contention.

SKELOS, J.P., CHAMBERS, SGROI and HINDS-RADIX, JJ., concur.

ENTER: [*2]

Aprilanne Agostino

Clerk of the Court”

Rojas v Paine     2009-08375         2012 NY Slip Op 08506    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

RANDALL T. ENG, P.J.

PETER B. SKELOS

THOMAS A. DICKERSON

SANDRA L. SGROI, JJ.

2009-08375

2010-08138

(Index No. 27830/08)

[*1]Luis X. Rojas, et al., appellants,

v

Andrew Paine, et al., respondents, et al., defendants.

Peter Klose, Nyack, N.Y., for appellants.

Daniel H. Erskine, New York, N.Y., for respondents Andrew

Paine and Karen Paine.

Steinberg & Cavaliere, LLP, White Plains, N.Y. (Ronald W.

Weiner of counsel), for respondent

Joyce Danziger.

DECISION & ORDER

In an action, inter alia, to recover damages for fraud and for specific performance of a contract for the sale of real property, the plaintiffs appeal from (1) an order of the Supreme Court, Westchester County (Giacomo, J.), entered July 24, 2009, which granted those branches of the motion of the defendants Andrew Paine and Karen Paine which were pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint insofar as asserted against those defendants and denied that branch of the plaintiffs’ cross motion which was to compel the transfer of certain real property to them, and (2) an order of the same court entered June 28, 2010, which granted the motion of the defendant Joyce Danziger pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against her.

ORDERED that the orders are affirmed, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

In April 2005, the plaintiffs entered into a contract to purchase a one-family house in the Town of Greenburgh from the defendants Andrew Paine and Karen Paine (hereinafter together the Paines). The house was situated on property designated as Lot No. 8 on a subdivision map filed in the Westchester County Clerk’s office. The Paines were represented in the real estate transaction by the defendant attorney Joyce Danziger. At the closing on June 6, 2005, the Paines delivered to the plaintiffs a bargain and sale deed reciting that the property being granted was “”the same property”” as had been transferred to the Paines by two separate deeds, both recorded in the Westchester County Clerk’s office on March 4, 2005. However, the description of the property contained in Schedule A of the deed delivered on June 6, 2005, only contained the description of the portion of Lot No. 8 set forth in one of the two deeds previously recorded on March 4, 2005.

More than two years after the closing, the plaintiffs commenced this action against several parties, including the Paines and Danziger, claiming, inter alia, that the deed delivered on June 6, 2005, failed to convey all of Lot No. 8, and that the Paines and Danziger had intentionally concealed the fact that Lot No. 8 had been “”illegally subdivided”” by the two deeds recorded on [*2]March 4, 2005. The first cause of action, asserted against, among others, the Paines and Danziger, sought to recover damages for fraud, and the second cause of action, asserted solely against the Paines, sought specific performance of the contract of sale. The Paines moved, among other things, pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint insofar as asserted against them, and Danziger separately moved pursuant to CPLR 3211(a)(7) for the same relief. The plaintiffs cross-moved to compel the transfer of certain real property to them.

Contrary to the plaintiffs’ contention, the Supreme Court properly concluded that their first cause of action, seeking to recover damages for fraud, failed to state a cause of action against the Paines and Danziger. “”New York adheres to the doctrine of caveat emptor and imposes no duty on the seller or the seller’s agent to disclose any information concerning the premises where the parties deal at arm’s length, unless there is some conduct on the part of the seller or the seller’s agent which constitutes active concealment”” (Jablonski v Rapalje, 14 AD3d 484, 485; see Perez-Faringer v Heilman, 95 AD3d 853, 854; Laxer v Edelman, 75 AD3d 584, 585; Rozen v 7 Calf Cr., LLC, 52 AD3d 590, 592-593; Mancuso v Rubin, 52 AD3d 580, 584). Mere silence on the part of the seller, without some affirmative act of deception, is not actionable as fraud (see Rozen v 7 Calf Cr., LLC, 52 AD3d at 593). For concealment to be actionable as fraud, the plaintiff must show that the defendant “”thwarted”” the plaintiff’s efforts to fulfill his or her responsibilities imposed by the doctrine of caveat emptor (see Perez-Faringer v Heilman, 95 AD3d at 854; Beach 104 St. Realty, Inc. v Kisslev-Mazel Realty, LLC, 76 AD3d 661, 663-664). Where “”the facts represented are not matters peculiarly within the party’s knowledge, and the other party has the means available to him [or her] of knowing, by the exercise or ordinary intelligence, the truth or the real quality of the subject of the representation, he [or she] must make use of those means, or he [or she] will not be heard to complain that he [or she] was induced to enter into the transaction by misrepresentations”” (Danann Reality Corp. v Harris, 5 NY2d 317, 322; see Perez-Faringer v Heilman, 95 AD3d at 854; East End Cement & Stone, Inc. v Carnevale, 73 AD3d 974, 975).

Accepting the facts alleged in the complaint as true and according the plaintiffs the benefit of every possible favorable inference, as we must on a motion pursuant to CPLR 3211(a)(7) (see Leon v Martinez, 84 NY2d 83, 87-88; Rovello v Orofino Realty Co., 40 NY2d 633, 634), the first cause of action fails to state a cause of action to recover damages against the Paines and Danziger for fraud. The plaintiffs’ allegation that the Paines and Danziger intentionally concealed the fact that Lot No. 8 had been “”illegally subdivided”” by the two deeds recorded on March 4, 2005, is insufficient to support a fraudulent concealment claim because they had no duty, under the doctrine of caveat emptor, to disclose any information regarding the premises. Moreover, since the recorded deeds were matters of public record, not exclusively within the knowledge of the Paines and their attorney Danziger, the failure to disclose that the Paines had acquired title by two separate deeds, thereby subdividing Lot No. 8, did not constitute active concealment, and is not actionable as a fraud (see Perez-Faringer v Heilman, 95 AD3d at 854; Stollsteimer v Kohler, 77 AD3d 1259, 1260; Clearmont Prop., LLC v Eisner, 58 AD3d 1052, 1056; Rozen v 7 Calf Cr., LLC, 52 AD3d at 593; F.A.S.A. Constr. Corp. v Degenshein, 47 AD3d 877, 879; Homeside Dev. Corp. v Dassa Brill LLC, 27 AD3d 258, 259; Mosca v Kiner, 277 AD2d 937, 938; see also East End Cement & Stone, Inc. v Carnevale, 73 AD3d at 975). Accordingly, the Supreme Court properly granted Danziger’s motion pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against her, and properly granted that branch of the Paines’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the first cause of action insofar as asserted against them.

The Supreme Court also properly granted that branch of the Paines’ motion which was pursuant to CPLR 3211(a)(1) to dismiss the second cause of action, which was only asserted against them, seeking specific performance of a contract for the sale of real property. Specifically, the plaintiffs sought to compel the Paines to convey to them a portion of the subject property which allegedly was not effectively conveyed pursuant to the completed transaction, as it had been “”illegally subdivided”” from the properly conveyed portion of the property. “”A CPLR 3211(a)(1) motion to dismiss a complaint on the ground that a defense is founded on documentary evidence may be appropriately granted where the documentary evidence utterly refutes the plaintiff’s allegations, conclusively establishing a defense as a matter of law”” (Peter Williams Enters., Inc. v New York State Urban Dev. Corp., 90 AD3d 1007, 1008; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; Leon v Martinez, 84 NY2d at 88). Specific performance may be awarded only where there [*3]is a valid existing contract for which to compel performance (see Roland v Benson, 30 AD3d 398, 399). Here, the documentary evidence established that the sale of the property that was the subject of the contract had closed, and the deed had been delivered. Since title to the property had closed and the deed was delivered, in the absence of any clear intent by the parties that a relevant provision of the contract of sale would survive delivery of the deed, any claims the plaintiffs might have had arising from the contract of sale were extinguished by the doctrine of merger (see Lunal Realty LLC v DiSanto Realty, LLC, 88 AD3d 661, 662-663; Ka Foon Lo v Curis, 29 AD3d 525, 526; Crowley Mar. Assoc. v Nyconn Assoc., 292 AD2d 334, 335; Noufrios v Murat, 193 AD2d 791, 792; Davis v Weg, 104 AD2d 617, 619). Thus, specific performance was not available to the plaintiffs. Therefore, the Supreme Court properly granted that branch of the Paines’ motion which was pursuant to CPLR 3211(a)(1) to dismiss the second cause of action.

On this record, the plaintiffs failed to demonstrate entitlement to relief on that branch of their cross motion which was to compel the transfer of certain real property to them.

ENG, P.J., SKELOS, DICKERSON and SGROI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Smith v City of Mount Vernon    2011-09787         2012 NY Slip Op 08507    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

WILLIAM F. MASTRO, J.P.

PLUMMER E. LOTT

LEONARD B. AUSTIN

JEFFREY A. COHEN, JJ.

2011-09787

(Index No. 7402/10)

[*1]Gladys Smith, respondent,

v

City of Mount Vernon, appellant.

Nichelle A. Johnson, Corporation Counsel, Mount Vernon, N.Y.

(Joana H. Aggrey of counsel), for appellant.

Spar & Bernstein, P.C., New York, N.Y. (Jared R. Cooper of

counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Westchester County (Liebowitz, J.), entered September 16, 2011, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendant’s motion for summary judgment dismissing the complaint is granted.

On August 12, 2009, the plaintiff, then 64 years old, allegedly tripped and fell over a cracked sidewalk flag while walking on North Third Avenue in Mount Vernon. She commenced this action against the defendant, the City of Mount Vernon, to recover damages for her alleged injuries. After the plaintiff filed her note of issue and certificate of readiness, the City moved for summary judgment dismissing the complaint on the ground that it did not receive prior written notice of the defective condition which allegedly caused the plaintiff to trip and fall. The Supreme Court denied the motion, concluding that the City did not meet its prima facie burden.

On its motion for summary judgment dismissing the complaint, the City met its prima facie burden of establishing its entitlement to judgment as a matter of law by providing evidence that it did not receive prior written notice of the defective sidewalk flag upon which the plaintiff allegedly tripped, as required pursuant to section 265 of the Charter of the City of Mount Vernon (see Wiley v Incorporated Vil. of Garden City, 91 AD3d 764, 765; LiFrieri v Town of Smithtown, 72 AD3d 750, 752; Koehler v Incorporated Vil. of Lindenhurst, 42 AD3d 438; Silburn v City of Poughkeepsie, 28 AD3d 468, 469). In support of its motion, the City submitted, among other things, the affidavit and a transcript of the deposition testimony of Anthony Amiano, a skilled laborer employed by the City for 26 years whose job duties included, inter alia, handling all notices of claim received by the City, checking the City’s records for prior notices, and inspecting the areas complained of in the notices of claim. Amiano averred and testified that, upon searching the records of the Commissioner of Public Works, which were maintained at City Hall, he found no records of prior notices or complaints pertaining to the area where the plaintiff allegedly tripped and fell. Amiano also averred that the City did not perform any work in that area. Contrary to the plaintiff’s contention, Amiano’s affidavit and deposition testimony were sufficient to satisfy the City’s initial burden in moving for summary judgment. Consequently, the City demonstrated, prima facie, its entitlement to judgment as a matter of law. [*2]

In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff’s contention, even though Amiano’s title was that of skilled laborer, his testimony and affidavit sufficiently demonstrated that the City did not receive prior written notice (see Wiley v Incorporated Vil. of Garden City, 91 AD3d 764; Spanos v Town of Clarkstown, 81 AD3d 711,712; Foley v County of Suffolk, 80 AD3d 658, 659-660; Richards v Incorporated Vil. of Rockville Ctr., 80 AD3d 594, 594). Further, General Municipal Law § 50-g(2) does not require that the individual who performs a search of a municipality’s prior written notice records be the same person who is designated by statute, charter, or local law to maintain those records (see General Municipal Law § 50-g[2]; see e.g. Wiley v Incorporated Vil. of Garden City, 91 AD3d 764; Foley v County of Suffolk, 80 AD3d at 659-660).

Moreover, the plaintiff failed to raise a triable issue of fact as to whether the affirmative negligence exception to the statutory rule requiring prior written notice was applicable to this action. She did not provide any evidence tending to show that the City performed any work in the area which immediately resulted in the creation of the subject crack in the sidewalk flag (see Yarborough v City of New York, 10 NY3d 726, 728; Oboler v City of New York, 8 NY3d 888, 889; Wiley v Incorporated Vil. of Garden City, 91 AD3d at 766; Brown v County of Suffolk, 89 AD3d 661, 661; Richards v Incorporated Vil. of Rockville Ctr., 80 AD3d at 595; Jason v Town of N. Hempstead, 61 AD3d 936, 937). Any testimony by Amiano that the crack could have been caused over time by water erosion and the application of salt to the sidewalk following snowstorms was speculative and did not raise a triable issue of fact as to whether the City affirmatively caused the crack, thereby triggering the affirmative negligence exception.

The plaintiff’s remaining contentions are without merit.

Accordingly, the Supreme Court should have granted the City’s motion for summary judgment dismissing the complaint.

MASTRO, J.P., LOTT, AUSTIN and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

“Stony Brook Envtl. Conservancy, Inc. v State Univ. of N.Y.”         2011-05693         2012 NY Slip Op 08508    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

PETER B. SKELOS, J.P.

THOMAS A. DICKERSON

L. PRISCILLA HALL

SHERI S. ROMAN, JJ.

2011-05693

(Index No. 37754/10)

[*1]Stony Brook Environmental Conservancy, Inc., et al., appellants,

v

State University of New York, respondent.

George S. Locker, New York, N.Y., for appellants.

Eric T. Schneiderman, Attorney General, New York, N.Y.

(Cecelia C. Chang and Matthew W. Grieco

of counsel), for respondent.

DECISION & ORDER

In an action pursuant to State Finance Law § 123-b for certain declaratory and injunctive relief, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Gazzillo, J.), entered April 11, 2011, as granted that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(3) to dismiss the complaint insofar as asserted by Michelle Pizer and Muriel Weyl for lack of standing.

ORDERED that the appeal by the plaintiff Stony Brook Environmental Conservancy, Inc., is dismissed, as it is not aggrieved by the portion of the order appealed from (see CPLR 5511); and it is further,

ORDERED that the order is affirmed insofar as appealed from by the plaintiffs Michelle Pizer and Muriel Weyl; and it is further,

ORDERED that one bill of costs is awarded to the respondent.

On August 2, 1986, the New York State Legislature approved an act authorizing the defendant State University of New York (hereinafter SUNY) to enter into a contract or lease for the development and operation of a hotel/conference center facility on a portion of the campus of Stony Brook University (hereinafter the Enabling Act) (see L 1986, ch 830, as amended by L 1989, ch 200). On December 5, 1989, pursuant to and in accordance with the Enabling Act, SUNY entered into a ground lease with a nonparty, Stony Brook Foundation Realty, Inc. (hereinafter SBFR), pursuant to which SBFR, as tenant, agreed to construct and maintain, or, at its option, cause to be constructed and maintained, a hotel/conference center facility on the demised premises. On September 24, 2009, SBFR entered into a sublease with a nonparty, SBHC Private Equity IV, LLC (hereinafter SBHC), pursuant to which a hotel/conference center facility would be privately constructed and operated on the demised premises.

In December 2009 the plaintiffs, Stony Brook Environmental Conservancy, Inc., [*2]Michelle Pizer, and Muriel Weyl, commenced the instant action against SUNY pursuant to State Finance Law § 123-b seeking, inter alia, a judgment declaring, in effect, that the sublease was an unlawful disposition of state property to a private developer. SUNY moved, inter alia, pursuant to CPLR 3211(a)(3) to dismiss the complaint insofar as asserted by Pizer and Weyl for lack of standing, and the Supreme Court granted that branch of SUNY’s motion.

Pursuant to State Finance Law § 123-b “”any person, who is a citizen taxpayer . . . may maintain an action for equitable or declaratory relief, or both, against an officer or employee of the state who in the course of his or her duties has caused [an] illegal . . . disbursement of state property”” (State Finance Law § 123-b[1]). “”The statute is narrowly construed as a grant of standing to correct clear illegality of official action, but does not allow the interposition of litigating plaintiffs and the courts into the management and operation of public enterprises”” (Garber v Board of Trustees of State Univ. of N.Y., 38 AD3d 833, 834 [internal quotation marks omitted]; see Matter of Abrams v New York City Tr. Auth., 39 NY2d 990, 992). Stated another way, “”[t]he task . . . is to distinguish between cases that present a challenge to the expenditure of money [or the disposition of property] and those that use the expenditure of money [or the disposition of property] as a pretense to challenge a governmental decision”” (Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801, 813, cert denied 540 US 1017).

Here, although the plaintiffs allege in their complaint that the sublease is an unlawful disposition of state property to a private developer, the underlying basis of their claim is not that the lease, from which the sublease stems, itself is an unlawful disposition of state property. Rather, in alleging that the sublease is an unlawful disposition of state property, the plaintiffs challenge the manner in which SUNY, as lessor, chose to accomplish the construction and operation of a hotel/conference center facility on the demised premises, as well as SBFR’s failure to make payments in lieu of taxes to the extent required by the lease. Critically, however, neither of those claims, one involving SUNY’s discretionary decisions and the other involving an alleged breach of the lease by SBFR, make the lease itself, which fully complies with the Enabling Act (see L 1986, ch 830; L 1989, ch 200; Garber v Board of Trustees of State Univ. of N.Y., 38 AD3d at 834-835), or the resultant sublease, an illegal disposition of state property. Accordingly, the Supreme Court correctly determined that the individual plaintiffs Pizer and Weyl lack standing under State Finance Law § 123-b to maintain the instant action (see Saratoga County Chamber of Commerce v Pataki, 100 NY2d at 813-814; Matter of Transactive Corp. v New York State Dept. of Social Servs., 92 NY2d 579, 589; Garber v Board of Trustees of State Univ. of N.Y., 38 AD3d at 834-835).

SKELOS, J.P., DICKERSON, HALL and ROMAN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

“31-01 102nd St. Assoc., Inc. v Ace Eur. Ins. Group”          2011-02890         2012 NY Slip Op 08509    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

PETER B. SKELOS, J.P.

ANITA R. FLORIO

L. PRISCILLA HALL

SANDRA L. SGROI, JJ.

2011-02890

(Index No. 1460/10)

[*1]31-01 102nd Street Associates, Inc., plaintiff,

v

Ace European Insurance Group, also known as Ace European Insurance Company, respondent, et al., defendant, R & W Brokerage, Inc., et al., appellants.

Kral Clerkin Redmond Ryan Perry & Van Etten, LLP,

Melville, N.Y. (Michael G. Walker of counsel), for appellant R & W

Brokerage, Inc.

Keidel, Weldon & Cunningham, LLP, White Plains, N.Y.

(Stephen C. Cunningham and Stephen

J. Romano of counsel), for appellant

Thomas A. Petropole Insurance

Agency.

Cozen O’Connor, New York, N.Y. (Melissa F. Brill of counsel),

for respondent.

DECISION & ORDER

In an action, inter alia, for a judgment declaring that a loss to the plaintiff’s property, as claimed by the plaintiff, is covered under a certain insurance policy issued by the defendant Ace European Insurance Group, also known as Ace European Insurance Company, the defendants R & W Brokerage, Inc., and Thomas A. Petropole Insurance Agency separately appeal from an order of the Supreme Court, Queens County (Flaherty, J.), dated December 15, 2010, which granted the motion of the defendant Ace European Insurance Group, also known as Ace European Insurance Company, for summary judgment declaring that the loss to the plaintiff’s property, as claimed by the plaintiff, is not covered under the insurance policy and denied their respective cross motions, in effect, for summary judgment dismissing the third affirmative defense asserted by that defendant, which alleged that the plaintiff made a material misrepresentation in its application for insurance. Justice Hall has been substituted for former Justice Belen (see 22 NYCRR 670.1[c]).

ORDERED that the order is affirmed, with one bill of costs.

The defendant Ace European Insurance Group, also known as Ace European Insurance Company (hereinafter Ace), established, prima facie, that the plaintiff made a material misrepresentation in its application for insurance and that, based on the relevant underwriting policies, Ace would not have issued the subject policy to the plaintiff had the correct information been disclosed in the application. Thus, Ace made a prima facie showing that the subject insurance policy is void ab initio (see Insurance Law § 3105[b][1]; Barkan v New York Schools Ins. Reciprocal, 65 AD3d 1061, 1063). In opposition to Ace’s motion, the plaintiff and the appellants failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted Ace’s motion for summary judgment declaring that the loss to the plaintiff’s property, as claimed by the plaintiff, is not covered under the insurance policy that Ace issued to the plaintiff. For the same reason, the Supreme Court properly denied the appellants’ cross motions for summary judgment dismissing [*2]Ace’s third affirmative defense, which alleged that the plaintiff made a material misrepresentation in its application for insurance.

Since this is, in part, a declaratory judgment action, the matter must be remitted to the Supreme Court, Queens County, for the entry of a judgment declaring that the loss to the plaintiff’s property, as claimed by the plaintiff, is not covered under the insurance policy issued by Ace to the plaintiff (see Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901).

SKELOS, J.P., FLORIO, HALL and SGROI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Thomas v New York City Tr. Auth.             2011-03941         2012 NY Slip Op 08510    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

REINALDO E. RIVERA, J.P.

DANIEL D. ANGIOLILLO

CHERYL E. CHAMBERS

SHERI S. ROMAN, JJ.

2011-03941

(Index No. 13536/08)

[*1]Joyce Thomas, respondent,

v

New York City Transit Authority, appellant, et al., defendants.

Wallace D. Gossett, Brooklyn, N.Y. (Lawrence A. Silver of

counsel), for appellant.

Miller & Miller, Brooklyn, N.Y. (Andrew R. Miller of

counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant New York City Transit Authority appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Sherman, J.), dated February 16, 2011, as denied that branch of its motion which was for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendant New York City Transit Authority which was for summary judgment dismissing the complaint insofar as asserted against it is granted.

The plaintiff allegedly slipped and fell on a wet, “”slushy”” step as she was exiting the front door of a bus operated by an employee of the defendant New York City Transit Authority (hereinafter the NYCTA). It is undisputed that the accident occurred during an ongoing snowstorm.

The plaintiff commenced the instant action to recover damages for personal injuries allegedly sustained by her. Thereafter, the NYCTA moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against it, and the Supreme Court denied that branch of the NYCTA’s motion.

Initially, we take this opportunity to clarify the NYCTA’s duty of care under the circumstances presented herein. “”[A] common carrier is subject to the same duty of care as any other potential tortfeasor—reasonable care under all of the circumstances of the particular case”” (Bethel v New York City Tr. Auth., 92 NY2d 348, 356 [emphasis added]). In this regard, the NYCTA does, in fact, have a duty to maintain its property in a reasonably safe condition, in view of all of the circumstances (see Basso v Miller, 40 NY2d 233, 241).

Here, contrary to the Supreme Court’s determination, the NYCTA made a prima facie showing that it exercised reasonable care under the circumstances existing at the time of the accident and, in opposition, the plaintiff failed to demonstrate the existence of a triable issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562). Under the particular circumstances of this case, including the inclement weather conditions which existed at the time of the accident, it would be unreasonable to expect the NYCTA to constantly clean the steps of the subject bus (see [*2]Rayford v County of Westchester, 59 AD3d 508, 509; Robins v Metropolitan Tr. Auth., 58 AD3d 711; McKenzie v County of Westchester, 38 AD3d 855, 856). Accordingly, the Supreme Court should have granted that branch of the NYCTA’s motion which was for summary judgment dismissing the complaint insofar as asserted against it.

RIVERA, J.P., ANGIOLILLO, CHAMBERS and ROMAN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

“Volunteer Fire Assn. of Tappan, Inc. v County of Rockland”        2010-11956         2012 NY Slip Op 08511    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

WILLIAM F. MASTRO, J.P.

PETER B. SKELOS

L. PRISCILLA HALL

PLUMMER E. LOTT, JJ.

2010-11956

(Index No. 10907/07)

[*1]Volunteer Fire Association of Tappan, Inc., respondent-appellant,

v

County of Rockland, et al., appellants-respondents.

Harris Beach PLLC, White Plains, N.Y. (Darius P. Chafizadeh and

Robert A. Schaefer, Jr., of counsel), for appellants-respondents

County of Rockland, County of Rockland Highway Department,

and Andrew M. Connors.

Andrew Greene & Associates, P.C., White Plains, N.Y. (Paul

T. Vink of counsel), for appellant-

respondent Morano Brothers Corp.

Dwight D. Joyce, Stony Point, N.Y., for respondent-appellant.

DECISION & ORDER

In an action, inter alia, for injunctive relief and to recover damages for trespass and private nuisance, the defendants County of Rockland, County of Rockland Highway Department, and Andrew M. Connors appeal, and the defendant Morano Brothers Corp., separately appeals, as limited by their respective briefs, from so much of a judgment of the Supreme Court, Rockland County (Walsh II, J.), entered November 17, 2010, as, upon the denial of that branch of their motion pursuant to CPLR 4401 which was for judgment as a matter of law dismissing the causes of action to recover damages for trespass and private nuisance, made at the close of the plaintiff’s case, and upon a jury verdict finding that the plaintiff sustained damages in the principal sums of $10,000 for physical damage resulting from trespass, $20,000 for physical damage resulting from private nuisance, $30,000 for loss of use resulting from trespass, and $130,000 for loss of use resulting from private nuisance, is in favor of the plaintiff and against them in the principal sum of $190,000, and the plaintiff cross-appeals, as limited by its notice of appeal and brief, from so much of the judgment as, upon the granting of that branch of the defendants’ motion pursuant to CPLR 4401 which was for judgment as a matter of law dismissing the cause of action to recover damages pursuant to 42 USC § 1983, made at the close of the plaintiff’s case, in effect, dismissed that cause of action, and failed to award it punitive damages.

ORDERED that the judgment is modified, on the facts, by deleting the provisions thereof awarding damages in the principal sums of $30,000 for loss of use resulting from trespass and $130,000 for loss of use resulting from private nuisance, and substituting therefor a provision severing so much of the causes of action alleging trespass and private nuisance as were to recover damages for loss of use; as so modified, the judgment is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Rockland County, for a new trial on the issue of damages for loss of use resulting from trespass and loss of use resulting from private nuisance, and [*2]thereafter for the entry of an appropriate amended judgment.

In or about May 2000, the defendant County of Rockland undertook a project to rebuild county roads by reconstructing certain pavement, curbs, and sidewalks. The work was performed by the defendant Morano Brothers Corp. In November 2007, after the project had commenced, Andrew M. Connors, the Deputy Superintendent of the County of Rockland Highway Department, decided to construct a raised curb on approximately 57 feet of roadway in front of the plaintiff’s firehouse on Washington Street in the Town of Orangetown, and implemented a field change to the project accordingly. In response, the plaintiff commenced the instant action, inter alia, to recover damages for trespass, private nuisance, unlawful taking by eminent domain, and pursuant to 42 USC § 1983, contending, among other things, that the raised curb constituted a trespass upon its property and materially impeded access to and from its firehouse. Further construction work was halted on December 3, 2007, pursuant to a temporary restraining order.

By decision and order dated March 3, 2009, this Court awarded the plaintiff preliminary injunctive relief, and directed the defendants to remove the raised curb already installed, on the condition that the plaintiff post an undertaking pursuant to CPLR 6312(b) (see Volunteer Fire Assn. of Tappan, Inc. v County of Rockland, 60 AD3d 666). Since the plaintiff failed to post an undertaking, the area along Washington Street in front of the plaintiff’s property remained a construction site. Thereafter, on August 7, 2009, the parties entered into a stipulation of partial settlement, which allowed construction to proceed along the plaintiff’s property pursuant to earlier plans dated January 8, 2006. On October 21, 2009, the plaintiff’s property was restored to the condition it had been in prior to construction.

The action proceeded to trial before a jury. At the close of the plaintiff’s case, the trial court, upon the defendants’ motion pursuant to CPLR 4401, inter alia, directed the dismissal of the causes of action alleging unlawful taking by eminent domain and pursuant to 42 USC § 1983, and denied those branches of the motion which were for judgment as a matter of law dismissing the causes of action alleging trespass and private nuisance.

The jury found that the defendants trespassed onto the plaintiff’s property, resulting in physical damage to the plaintiff’s parking lot in the sum of $10,000 for the period from November 8, 2007, until December 3, 2007, and damages in the sum of $30,000 for loss of use of the parking lot for the period from November 8, 2007, until October 21, 2009. The jury further found that the defendants created a private nuisance, resulting in physical damage to the plaintiff’s parking lot in the sum of $20,000 for the period from November 8, 2007, until December 3, 2007, and damages in the sum of $130,000 for loss of use of the parking lot for the period from November 8, 2007, until October 21, 2009. The total amount of damages awarded was $190,000.

Contrary to the defendants’ contention, a municipality may be found liable for trespass and a private nuisance (see Seifert v City of Brooklyn, 101 NY 136, 142; M. C. D. Carbone, Inc. v Town of Bedford, 98 AD2d 714; Ebbets v City of New York, 111 App Div 364, 366). The elements of a cause of action sounding in trespass are an intentional entry onto the land of another without justification or permission (see Carlson v Zimmerman, 63 AD3d 772, 773; Woodhull v Town of Riverhead, 46 AD3d 802, 804), or a refusal to leave after permission has been granted but thereafter withdrawn (see Rager v McCloskey, 305 NY 75, 79; Navarro v Federal Paper Bd. Co., 185 AD2d 590, 592). Intent is defined as intending the act which produces the unlawful intrusion, where the intrusion is an immediate or inevitable consequence of that act (see Phillips v Sun Oil Co., 307 NY 328, 331). “”Liability may attach regardless of defendant’s mistaken belief that he or she had a right to enter”” (State of New York v Johnson, 45 AD3d 1016, 1019; see Curwin v Verizon Communications [LEC], 35 AD3d 645). A cause of action alleging trespass is distinguishable from a cause of action alleging a de facto taking, since a trespass may be temporary in nature, whereas a de facto taking is permanent (see Corsello v Verizon N.Y., Inc., 18 NY3d 777; Feder v Village of Monroe, 283 AD2d 548, 549). A cause of action alleging private nuisance is distinguishable from a cause of action alleging trespass in that trespass involves the invasion of the plaintiff’s interest in the exclusive possession of its land, while a private nuisance involves the invasion of the plaintiff’s right to the use and enjoyment of its land (see Bloomingdales, Inc. v New York City Tr. Auth., 13 [*3]NY3d 61; Copart Indus. v Consolidated Edison Co. of N.Y., 41 NY2d 564, 570). A private nuisance does not require any intrusion onto the plaintiff’s property (see JP Morgan Chase Bank v Whitmore, 41 AD3d 433).

The Supreme Court properly denied that branch of the defendants’ motion pursuant to CPLR 4401 which was for judgment as a matter of law dismissing the causes of action alleging trespass and private nuisance. To grant such a motion, the court must, viewing the evidence in the light most favorable to the plaintiff, conclude that there is no rational process by which the jury could base a finding in favor of the plaintiff (see CPLR 4401; Szczerbiak v Pilat, 90 NY2d 553, 556; Nestro v Harrison, 78 AD3d 1032, 1033). Here, there was a rational process by which the jury could find that the defendants were liable for trespass and private nuisance.

A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence (see Lolik v Big V Supermarkets, 86 NY2d 744, 745-746; Nicastro v Park, 113 AD2d 129, 130). A fair interpretation of the evidence adduced at the trial supports the jury’s conclusion that the defendants, in the course of their construction project, performed work outside of the boundaries of the municipal defendants’ right-of-way, causing physical damage to, and depriving the plaintiff of the use and enjoyment of, its property. Contrary to the defendants’ contention, consequential damages such as repair costs, depreciation, and damages caused by discomfort and inconvenience are recoverable in tort actions to recover damages for trespass and private nuisance (see Dixon v New York Trap Rock Corp., 293 NY 509, 514; Kronish Lieb Weiner & Hellman, LLP v Tahari, Ltd., 35 AD3d 317, 319; Taylor v Leardi, 120 AD2d 727).

On the question of damages, the $30,000 awarded for physical damage, consisting of $10,000 for trespass and $20,000 for private nuisance, was supported by the weight of the credible evidence. However, the award of damages for loss of use, comprising the sums of $30,000 for trespass and $130,000 for private nuisance, was contrary to the weight of the credible evidence.

The measure of damages for permanent injury to property is loss of market value, or the cost of restoration, while the measure of damages for loss of use is the “”decrease in the property’s rental value during the pendency of the injury”” (Jenkins v Etlinger, 55 NY2d 35, 40; see JP Morgan Chase Bank v Whitmore, 41 AD3d at 435; Franjo Transp. v B & K Fleet Serv., 226 AD2d 674; Putnam v State of New York, 223 AD2d 872, 874). Here, the plaintiff’s expert, over the defendants’ objection, calculated loss of use based upon a purported decrease in market value, notwithstanding that the injury to the plaintiff’s property was only for a period of approximately two years. Further, the plaintiff’s expert’s calculations commingled damages for loss of use attributable to trespass with damages for loss of use attributable to private nuisance, which may have resulted in a double recovery for the same wrong. Accordingly, we grant a new trial with respect to damages for loss of use resulting from trespass and private nuisance.

The Supreme Court properly declined to permit the jury to consider punitive damages, since punitive damages are not recoverable against subdivisions of the State (see e.g. Spano v Kings Park Cent. School Dist., 61 AD3d 666, citing Sharapata v Town of Islip, 56 NY2d 332). Moreover, the cause of action pursuant to 42 USC § 1983 was properly dismissed (see Bower Assoc. v Town of Pleasant Val., 2 NY3d 617, 628-629).

The parties’ remaining contentions are without merit or need not be addressed in light of our determination.

MASTRO, J.P., SKELOS, HALL and LOTT, JJ., concur.

ENTER: [*4]

Aprilanne Agostino

Clerk of the Court”

“Weill v East Sunset Park Realty, LLC”      2011-09014         2012 NY Slip Op 08512    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

DANIEL D. ANGIOLILLO, J.P.

SANDRA L. SGROI

JEFFREY A. COHEN

ROBERT J. MILLER, JJ.

2011-09014

(Index No. 30676/09)

[*1]Meyer Weill, et al., plaintiffs,

v

East Sunset Park Realty, LLC, et al., defendants, City of New York, et al., respondents, TitleVest Agency, Inc., appellant.

Tarter Krinsky & Drogin, LLP, New York, N.Y. (Andrew N.

Krinsky and Debra Bodian Bernstein of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York, N.Y.

(Susan Davidson of counsel), for

respondents.

DECISION & ORDER

In an action, inter alia, to foreclose a mortgage, the defendant TitleVest Agency, Inc., appeals from an order of the Supreme Court, Kings County (Martin, J.), dated July 5, 2011, which granted the motion of the defendants City of New York and New York City Department of Taxation and Finance for summary judgment dismissing its cross claim against them for contribution and indemnification.

ORDERED that the order is affirmed, with costs.

In this mortgage foreclosure action, the plaintiffs claimed that their mortgage was superior in priority to the interests claimed by the defendants East Sunset Park Realty, LLC (hereinafter East Sunset), and Flushing Preferred Funding Corp. (hereinafter Flushing), with respect to certain real property in Brooklyn. East Sunset and Flushing moved pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them, alleging that they did not have constructive or actual notice of the plaintiffs’ mortgage interest, which had been improperly recorded (see Weill v East Sunset Park Realty LLC,AD3d [Appellate Division Docket No. 2011-09364, decided herewith]). Thereafter, the plaintiffs served an amended complaint adding the defendant TitleVest Agency, Inc. (hereinafter TitleVest), alleging that the plaintiffs’ predecessor in interest had hired TitleVest to record their mortgage and that TitleVest had done so negligently, causing it to be misindexed under the incorrect lot number in the Office of the City Register of the City of New York, Department of Finance (hereinafter the City Register). In its answer to the amended complaint, TitleVest alleged that the misindexing was due to the negligence of the City Register and asserted a cross claim for contribution and indemnification against the defendants City of New York and New York City Department of Taxation and Finance (hereinafter together the City defendants).

The City defendants moved for summary judgment dismissing the cross claim, asserting that they were shielded from liability pursuant to the doctrine of governmental immunity and that they did not have a special relationship with TitleVest which would give rise to a special [*2]duty of care apart from any duty they might owe to the public in general. In opposition, TitleVest did not advance any contention relevant to the issue of special duty but contended that governmental immunity does not apply where the act complained of is the misindexing of a mortgage. The Supreme Court granted the City defendants’ motion for summary judgment dismissing the cross claim, and TitleVest appeals.

“”Government action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general”” (McLean v City of New York, 12 NY3d 194, 203; see Valdez v City of New York, 18 NY3d 69, 76-77; Pelaez v Seide, 2 NY3d 186, 199-200). Here, the Supreme Court held that the City defendants did not owe TitleVest a special duty of care and, thus, Titlevest could not recover on its cross claim against them. On appeal, TitleVest does not dispute that the subject conduct by the City defendants was ministerial in nature and, thus, a special duty must be shown to exist in order to impose liability on them. However, TitleVest contends that its cross claim is solely one for contribution predicated on the City defendants’ liability for an alleged breach of their special duty to the plaintiffs, rather than a special duty running to TitleVest. This contention is improperly raised for the first time on this appeal and, therefore, is not properly before this Court (see Waterman v Weinstein Mem. Chapel, 49 AD3d 717, 718). Accordingly, the Supreme Court properly granted the City defendants’ motion for summary judgment dismissing TitleVest’s cross claim against them.

ANGIOLILLO, J.P., SGROI, COHEN and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

“Weill v East Sunset Park Realty, LLC”      2011-09364         2012 NY Slip Op 08513    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

DANIEL D. ANGIOLILLO, J.P.

SANDRA L. SGROI

JEFFREY A. COHEN

ROBERT J. MILLER, JJ.

2011-09364

(Index No. 30676/09)

[*1]Meyer Weill, et al., appellants,

v

East Sunset Park Realty, LLC, et al., respondents, et al., defendants.

Asher Fensterheim, PLLC, Tarrytown, N.Y., for appellants.

Donald G. Davis, New York, N.Y., for respondents.

DECISION & ORDER

In an action, inter alia, to foreclose a mortgage, the plaintiffs appeal from so much of an order of the Supreme Court, Kings County (Martin, J.), dated July 5, 2011, as granted that branch of the motion of the defendants East Sunset Park Realty, LLC, and Flushing Preferred Funding Corp. which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them.

ORDERED that the order is reversed insofar as appealed from, with costs, and that branch of the motion of the defendants East Sunset Park Realty, LLC, and Flushing Preferred Funding Corp. which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them is denied.

On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must “”accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory”” (Leon v Martinez, 84 NY2d 83, 87-88). While a court is “”permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7)”” (Sokol v Leader, 74 AD3d 1180, 1181), where the motion is not converted to one for summary judgment, “”the criterion is whether the [plaintiff] has a cause of action, not whether he has stated one, and, unless it has been shown that a material fact as claimed by the [plaintiff] to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it . . . dismissal should not eventuate”” (Guggenheimer v Ginzberg, 43 NY2d 268, 275). “”[O]n a motion made pursuant to CPLR 3211(a)(7), the burden never shifts to the nonmoving party to rebut a defense asserted by the moving party”” (Sokol v Leader, 74 AD3d at 1181).

Here, the complaint alleged that the mortgage held by the plaintiffs was superior in priority to the interests claimed by the defendants East Sunset Park Realty, LLC (hereinafter East Sunset), and Flushing Preferred Funding Corp. (hereinafter Flushing). In support of that branch of their motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them, East Sunset and Flushing asserted that the plaintiffs’ interest should be deemed null and void with respect to them because they did not have constructive or actual notice of the plaintiffs’ mortgage interest, which had been improperly recorded (see generally Andy Assoc. v [*2]Bankers Trust Co., 49 NY2d 13), and submitted affidavits relevant to their contention that they lacked actual notice of the plaintiffs’ interest.

The evidentiary submissions of East Sunset and Flushing failed to demonstrate that the material fact as alleged by the plaintiffs with respect to the priority of their interest “”was undisputedly not a fact at all”” (Bokhour v GTI Retail Holdings, Inc., 94 AD3d 682, 683; see Jannetti v Whelan, 97 AD3d 797, 798). Accordingly, the Supreme Court should have denied that branch of the motion of East Sunset and Flushing which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them.

ANGIOLILLO, J.P., SGROI, COHEN and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

“Wells Fargo Bank, N.A. v Russell”            2011-09544         2012 NY Slip Op 08514    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

MARK C. DILLON, J.P.

RUTH C. BALKIN

JOHN M. LEVENTHAL

L. PRISCILLA HALL, JJ.

2011-09544

(Index No. 3765/07)

[*1]Wells Fargo Bank, N.A., etc., respondent,

v

Oswald Russell, appellant, et al., defendants.

Fuster Law, P.C., New York, N.Y. (J. A. Sanchez-Dorta of

counsel), for appellant.

Rosicki, Rosicki & Associates, P.C., Plainview, N.Y. (Owen

M. Robinson of counsel), for

respondent.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Oswald Russell appeals from an order of the Supreme Court, Queens County (Agate, J.), dated August 25, 2011, which denied his motion for leave to renew his prior motion pursuant to CPLR 5015 to vacate a judgment of foreclosure and sale of the same court entered July 22, 2010, upon his default in appearing or answering the complaint, and to extend his time to appear and answer.

ORDERED that the order is affirmed, with costs.

In this action to foreclose a mortgage, the defendant Oswald Russell defaulted in appearing and answering the complaint. Eventually, the plaintiff moved for a judgment of foreclosure and sale, and the Supreme Court granted the motion, without opposition. Subsequently, Russell moved to vacate his default and extend his time to appear and answer. The Supreme Court held that Russell had failed to establish a reasonable excuse for his default, and it denied his motion without considering whether he had demonstrated the existence of a potentially meritorious defense to the action. Russell did not take an appeal from the order denying his motion, but instead moved for leave to renew his motion. In support of his motion for leave to renew, Russell alleged, among other possible defenses, that the plaintiff lacked standing to commence the action and that it had obtained the judgment by fraud. The Supreme Court denied Russell’s motion for leave to renew, and Russell appeals.

“”A motion for leave to renew must (1) be based upon new facts not offered on a prior motion that would change the prior determination, and (2) set forth a reasonable justification for the failure to present such facts on the prior motion”” (Swedish v Beizer, 51 AD3d 1008, 1010, quoting Ellner v Schwed, 48 AD3d 739, 740; see CPLR 2221[e]; Yerushalmi v Yerushalmi, 82 AD3d 1217, 1217).

A defendant who seeks to vacate a default in appearing or answering must provide a reasonable excuse for the default and show a potentially meritorious defense (see U.S. Bank N. A. v Stewart, 97 AD3d 740, 740; Deutsche Bank Natl. Trust Co. v Rudman, 80 AD3d 651, 652; [*2]Maspeth Fed. Sav. & Loan Assn. v McGown, 77 AD3d 889, 890). The Supreme Court denied Russell’s motion to vacate his default on the ground that he had failed to provide a reasonable excuse for his default. Upon moving for leave to renew, Russell did not submit new facts that would cure that deficiency. Consequently, whatever the possible merit of the potentially meritorious defenses he offered in support of his motion for leave to renew (see Bank of N.Y. v Silverberg, 86 AD3d 274, 279; but cf. HSBC Bank, USA v Dammond, 59 AD3d 679), those contentions would not have changed the original determination. Accordingly, the Supreme Court properly denied Russell’s motion for leave to renew (see Reich v Redley, 96 AD3d 1038, 1039).

Russell’s remaining contentions are without merit or need not be addressed in light of our determination.

DILLON, J.P., BALKIN, LEVENTHAL and HALL, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Zastenchik v Knollwood Country Club     2011-07883         2012 NY Slip Op 08515    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

PETER B. SKELOS, J.P.

JOHN M. LEVENTHAL

CHERYL E. CHAMBERS

PLUMMER E. LOTT, JJ.

2011-07883

(Index No. 8004/08)

[*1]Andrew Zastenchik, plaintiff-respondent,

v

Knollwood Country Club, defendant third-party plaintiff-respondent, et al., defendant; Aqua Plumbing & Heating Corp., third-party defendant-appellant.

Stewart, Greenblatt, Manning & Baez (Montfort, Healey, McGuire

& Salley, Garden City, N.Y. [Michael A. Baranowicz and Donald

S. Neumann, Jr.], of counsel), for third-party defendant-appellant.

Worby Groner Edelman LLP, White Plains, N.Y. (Richard S.

Vecchio, Michael G. Del Vecchio, and

Sara Schepps Matschke of counsel),

for plaintiff-respondent.

Alan I. Lamer (McGaw, Alventosa & Zajac, Jericho, N.Y.

[Ross P. Masler], of counsel), for

defendant third-party plaintiff-

respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the third-party defendant, Aqua Plumbing & Heating Corp., appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Liebowitz, J.), entered July 7, 2011, as denied those branches of its motion which were for summary judgment dismissing the causes of action to recover damages for common-law negligence and violations of Labor Law §§ 200 and 241(6), in effect, denied that branch of its motion which was for summary judgment dismissing the cause of action to recover damages for a violation of Labor Law § 240(1), and granted that branch of the motion of the defendant third-party plaintiff, Knollwood Country Club, which was for summary judgment on its third-party cause of action for contractual indemnification.

ORDERED that order is modified, on the law, (1) by deleting the provisions thereof denying that branch of the motion of the third-party defendant, Aqua Plumbing and Heating Corp., which was for summary judgment dismissing the cause of action to recover damages for violation of Labor Law § 241(6), and, in effect, denying that branch of the motion of the third-party defendant, Aqua Plumbing and Heating Corp., which was for summary judgment dismissing the cause of action to recover damages for a violation of Labor Law § 240(1), and substituting therefor provisions granting those branches of the motion, and (2) by deleting the provision thereof granting that branch of the motion of the defendant third-party plaintiff, Knollwood Country Club, which was for summary judgment on its third-party cause of action for contractual indemnification, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff, a plumber, was allegedly injured when his foot became stuck in the mud [*2]to the depth of about 10 inches as he was retrieving pipes to be installed in a pro shop being constructed at a site owned by the Knollwood Country Club (hereinafter Knollwood). He commenced an action against Knollwood and Matell Contracting Company, Inc., the general contractor on the site, to recover damages for common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6). Knollwood commenced a third-party action seeking, inter alia, contractual indemnification against Aqua Plumbing and Heating Corp. (hereinafter Aqua), the plumbing subcontractor for the project, which employed the plaintiff.

“”To recover under Labor Law § 241(6), a plaintiff must establish the violation in connection with construction, demolition or excavation, of an Industrial Code provision which sets forth specific, applicable safety standards”” (Wein v Amato Props., LLC, 30 AD3d 506, 507; see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 503-505). Here, Aqua met its prima facie burden of establishing its entitlement to judgment as a matter of law dismissing the cause of action to recover damages for violation of Labor Law § 241(6), which was predicated on violations of Industrial Code sections 12 NYCRR 23-1.7(d), (e)(1), and (e)(2). Aqua made a prima facie showing that those sections are inapplicable, as the plaintiff did not slip or trip (see Urbano v Rockefeller Ctr. N., Inc., 91 AD3d 549, 550; Spence v Island Estates at Mt. Sinai II, LLC, 79 AD3d 936, 938; Pope v Safety & Quality Plus, Inc., 74 AD3d 1040, 1041; Cooper v State of New York, 72 AD3d 633, 635). In opposition thereto, the plaintiff failed to raise a triable issue of fact. Therefore, the Supreme Court should have granted that branch of Aqua’s motion which was for summary judgment dismissing the cause of action to recover damages for a violation of Labor Law § 241(6).

However, the Supreme Court correctly denied that branch of Aqua’s motion which was for summary judgment dismissing the causes of action to recover damages for common-law negligence and a violation of Labor Law § 200. “”Labor Law § 200 codifies the common-law duty of an owner or contractor to provide employees with a safe place to work”” (Lane v Fratello Constr. Co., 52 AD3d 575, 576). “”The statute applies, inter alia, to owners and contractors who either created a dangerous condition or had actual or constructive notice of it”” (Wein v Amato Props., LLC, 30 AD3d 506, 507). “”[P]roof that a dangerous condition is open and obvious does not preclude a finding of liability against a landowner for the failure to maintain the property in a safe condition but is relevant to the issue of the plaintiff’s comparative negligence”” (Cupo v Karfunkel, 1 AD3d 48, 52). Here, Aqua did not establish, prima facie, its entitlement to judgment as a matter of law dismissing the causes of action to recover damages for common-law negligence and a violation of Labor Law § 200, as it failed to demonstrate that the alleged defect, deep mud, did not constitute a dangerous condition (see Cupo v Karfunkel, 1 AD3d at 53; cf. Ulrich v Motor Parkway Props., LLC, 84 AD3d 1221, 1222-1223).

As the plaintiff correctly conceded in his affirmation in opposition to the motions by Knollwood and Aqua, his cause of action alleging a violation of Labor Law § 240(1) is not viable (see Spence v Island Estates at Mt. Sinai II, LLC, 79 AD3d at 937). Thus, the Supreme Court should have granted that branch of Aqua’s motion which was for summary judgment dismissing that cause of action.

The Supreme Court erred in granting that branch of Knollwood’s motion which was for summary judgment on its third-party cause of action for contractual indemnification. “”The right to contractual indemnification depends upon the specific language of the contract”” (Reisman v Bay Shore Union Free School Dist., 74 AD3d 772, 773 [internal quotation marks omitted]). Pursuant to the terms of the contractual indemnification provision at issue, Aqua is required to indemnify Knollwood against “”claims, damages, losses and expenses . . . only to the extent caused in whole or part by negligent acts or omissions of [Aqua].”” Since it has not been demonstrated that Aqua’s alleged negligence caused the plaintiff’s accident, Knollwood failed to establish its entitlement to contractual indemnification.

Aqua’s remaining contentions are without merit.

SKELOS, J.P., LEVENTHAL, CHAMBERS and LOTT, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Zherka v Gribler                2011-10293         2012 NY Slip Op 08516    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

RANDALL T. ENG, P.J.

JOHN M. LEVENTHAL

L. PRISCILLA HALL

PLUMMER E. LOTT, JJ.

2011-10293

(Index No. 24267/10)

[*1]Selim Zherka, appellant,

v

Larry Gribler, et al., respondents.

Selim Zherka, New Rochelle, N.Y., appellant pro se.

DECISION & ORDER

In an action, inter alia, to recover damages for defamation, the plaintiff appeals from an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered October 4, 2011, which granted the defendants’ motion pursuant to CPLR 3211(a)(7) to dismiss the second amended complaint.

ORDERED that the order is affirmed, without costs or disbursements.

The plaintiff commenced this action alleging, inter alia, that the defendants had made certain slanderous statements. “”Slander as a rule is not actionable unless the plaintiff suffers special damage. Special damages contemplate the loss of something having economic or pecuniary value”” (Liberman v Gelstein, 80 NY2d 429, 434-435 [internal quotation marks and citations omitted]). “”The four established exceptions [to the requirement of special damages] (collectively slander per se’) consist of statements (i) charging plaintiff with a serious crime; (ii) that tend to injure another in his or her trade, business or profession; (iii) that plaintiff has a loathsome disease; or (iv) imputing unchastity to a woman”” (id. at 435). Here, the plaintiff failed to plead that he suffered special damages with the requisite particularity (see Matherson v Marchello, 100 AD2d 233, 236). Moreover, contrary to the plaintiff’s contention, the second amended complaint failed to allege that the defendants charged him with committing a serious crime (see Caffee v Arnold, 104 AD2d 352, 353; Privitera v Town of Phelps, 79 AD2d 1, 4; Klein v McGauley, 29 AD2d 418, 421). Accordingly, the Supreme Court properly granted the defendants’ motion pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action.

In light of our determination, we need not reach the plaintiff’s remaining contention.

ENG, P.J., LEVENTHAL, HALL and LOTT, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Baribault v Sauvola     2012-00606         2012 NY Slip Op 08517    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

REINALDO E. RIVERA, J.P.

RUTH C. BALKIN

JOHN M. LEVENTHAL

SYLVIA HINDS-RADIX, JJ.

2012-00606

2012-00897

(Index No. 26410/03)

[*1]In the Matter of Kenneth Baribault, appellant,

v

Kendra Sauvola, respondent.

Sari M. Freidman, P.C., Garden City, N.Y. (Katherine Ryan of

counsel), for appellant.

Chas G. Cancellare, Hauppauge, N.Y. (Curtis R. Exum of

counsel), for respondent.

Donna England, Centereach, N.Y., attorney for the child.

DECISION & ORDER

In a custody proceeding, in effect, pursuant to Domestic Relations Law § 240(1), the father appeals from (1) an order of the Supreme Court, Suffolk County (MacKenzie, J.), dated December 6, 2011, which granted the mother’s motion for an award of an attorney’s fee, and (2) an order of the same court dated December 21, 2011, which, after a hearing, inter alia, granted the mother’s cross motion to modify a so-ordered stipulation of the same court (Bivona, J.) dated March 9, 2005, which awarded the parties joint legal custody of the parties’ child, so as to award the mother sole legal and physical custody of the parties’ child, and eliminated the father’s mid-week overnight visitation with the child.

ORDERED that the orders are affirmed, with one bill of costs.

Where the initial custody determination is made by the adoption of an agreement by the parties, custody may be modified where is it shown that, viewing the totality of the circumstances, a change in custody is in the child’s best interest (see Friederwitzer v Friederwitzer, 55 NY2d 89, 96). “”Custody determinations turn in large part on assessments of the credibility, character, temperament, and sincerity of the parties, and where a full evidentiary hearing has been held on the child’s best interests, the resultant findings will not be lightly set aside on appeal”” unless they lack a sound and substantial basis in the record (Matter of Roldan v Nieves, 76 AD3d 634, 635; see Eschbach v Eschbach, 56 NY2d 167, 173-174; Salvatore v Salvatore, 68 AD3d 966, 966-967; Matter of Berkham v Vessia, 63 AD3d 1155, 1156). Under the circumstances of this case, the Supreme Court’s determinations that joint legal custody was no longer feasible, to award sole custody to the mother, and to modify the father’s visitation were all supported by evidence of changes in circumstances warranting those determinations in the child’s best interest (see Matter of Boggio v Boggio, 96 AD3d 834, 835; Matter of Crowder v Austin, 90 AD3d 753, 754; see also Matter of Mohabir v Singh, 78 AD3d 1056, 1056-1057). Accordingly, those determinations have a sound and substantial basis in the record. [*2]

Contrary to the father’s contention, the Supreme Court providently exercised its discretion in determining that he was incompetent to testify at the hearing based upon the testimony of his treating physician (see People v Parks, 41 NY2d 36, 46; People v McGrady, 45 AD3d 1395, 1395-1396; see also Matter of Luz P., 189 AD2d 274, 277).

Further, the award of an attorney’s fee to the mother was a provident exercise of discretion (see Domestic Relations Law § 237[b]; Matter of Belle v DeMilia, 19 AD3d 691, 692), “”based on the financial circumstances of the parties and the circumstances of the case as a whole,”” including the relative merits of the parties’ positions (Matter of O’Neil v O’Neil, 193 AD2d 16, 20; see Matter of Dempsey v Dempsey, 78 AD3d 1179; Matter of Sullivan v Sullivan, 40 AD3d 865, 867; Matter of O’Shea v Parker, 16 AD3d 510).

The father’s remaining contentions are without merit.

RIVERA, J.P., BALKIN, LEVENTHAL and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Breytman v Lewis        “2012-04132,”    2012 NY Slip Op 08518    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

PETER B. SKELOS, J.P.

MARK C. DILLON

JOHN M. LEVENTHAL

SANDRA L. SGROI, JJ.

2012-04132 DECISION, ORDER & JUDGMENT

[*1]In the Matter of Alexander Breytman, petitioner,

v

Yvonne Lewis, etc., et al., respondents.

Alexander Breytman, Brooklyn, N.Y., petitioner pro se.

Proceeding pursuant to CPLR article 78, inter alia, in the nature of mandamus to compel the respondent Yvonne Lewis, a Justice of the Supreme Court, Kings County, to determine certain motions pending before her, and application by the petitioner for poor person relief.

ORDERED that the application for poor person relief is granted to the extent that the filing fee imposed by CPLR 8022(b) is waived, and the application is otherwise denied as academic; and it is further,

ADJUDGED that the petition is denied and the proceeding is dismissed, without costs or disbursements.

The petitioner failed to serve a necessary party, the respondent Yvonne Lewis (see CPLR 7804[i]).

SKELOS, J.P., DILLON, LEVENTHAL and SGROI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Carbone          2011-06800         2012 NY Slip Op 08519    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

PETER B. SKELOS, J.P.

ANITA R. FLORIO

JOHN M. LEVENTHAL

L. PRISCILLA HALL, JJ.

2011-06800

2011-06816

2011-08924

[*1]In the Matter of Carmelo Carbone, etc., deceased. Mike Carbone, appellant; Debra Betz, respondent. (File No. 2272/04)

Enea, Scanlan & Sirignano, LLP, White Plains, N.Y. (George A.

Sirignano, Jr., of counsel), for appellant.

Bashian & Farber, LLP, White Plains, N.Y. (Andrew Frisenda

and Irving O. Farber of counsel), for

respondent.

DECISION & ORDER

In a probate proceeding in which Mike Carbone, the executor of the estate, petitioned to judicially settle his intermediate account of the estate, Mike Carbone appeals (1), as limited by his brief, from so much of an order of the Surrogate’s Court, Westchester County (Scarpino, Jr., S.), dated June 2, 2011, as, upon a decision of the same court dated April 13, 2011, granted those branches of the motion of the objectant Debra Betz which were for summary judgment granting certain objections to the intermediate account and imposing certain surcharges and interest upon Mike Carbone, (2), as limited by his brief, from so much of a second order of the same court, also dated June 2, 2011, as, upon the decision, in effect, granted that branch of the motion of the objectant Debra Betz which was for summary judgment granting certain other objections and imposing certain surcharges and interest upon Mike Carbone related to professional services allegedly rendered by Carmela Smart, and (3) from an order of the same court dated September 9, 2011, which denied his motion for leave to renew or reargue his opposition to the summary judgment motion of the objectant Debra Betz.

ORDERED that the appeal from so much of the order dated September 9, 2011, as denied that branch of the appellant’s motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the first order dated June 2, 2011, is affirmed insofar as appealed from; and it is further,

ORDERED that the second order dated June 2, 2011, is affirmed insofar as appealed from; and it is further,

ORDERED that the order dated September 9, 2011, is affirmed insofar as reviewed; and it is further,

ORDERED that the respondent is awarded one bill of costs, payable by the appellant personally. [*2]

The petitioner, Mike Carbone, was named in the decedent’s will as executor of the decedent’s estate. After the decedent died, his primary beneficiaries, his daughters Debra Betz and Christina Carbone-Lopez, sought an accounting from Carbone. Carbone failed to provide an accounting until after he was held in contempt by the Surrogate’s Court. When Carbone finally filed an intermediate account of the estate, along with a petition to judicially settle the account, Betz and Carbone-Lopez filed objections to the account, asserting that it was incomplete and inaccurate. The court agreed, and directed Carbone to file an amended account.

Carbone filed an addendum to his account, but Betz and Carbone-Lopez again filed objections, asserting that the amended account remained incomplete and inaccurate, and Betz additionally filed supplemental objections to the amended account. Betz moved, inter alia, for summary judgment granting her objections, contending, among other things, that Carbone had mismanaged the estate and engaged in self-dealing in breach of his fiduciary duty. The Surrogate’s Court, in two orders, inter alia, granted certain branches of Betz’s motion and imposed surcharges and interest upon Carbone for various undocumented administration expenses and for assets omitted from his account. Carbone moved for leave to renew or reargue his opposition to Betz’s motion, and the court denied his motion.

Surrogate’s Court Procedure Act § 2211 grants the Surrogate’s Court broad authority to “”take the account, hear the proofs of the parties respecting it and make such order or decree as justice shall require”” (SCPA 2211[1]; see Matter of Gourary v Gourary, 94 AD3d 672, 673; Matter of Rockefeller, 44 AD3d 1170, 1172; Matter of Acker, 128 AD2d 867; see also Matter of Stortecky v Mazzone, 85 NY2d 518, 526). “”The Surrogate’s Court is empowered to state the account and make such a decree as justice requires notwithstanding the failure or refusal of a fiduciary to file an amended account”” (Matter of Wilkinson, 152 AD2d 585, 586). Moreover, because the Surrogate’s Court “”is governed by principles of equity as well as of law, [it] is not prevented by any legal restriction from doing exact justice to any of the parties”” (Matter of Schummers, 210 App Div 296, 300, affd 243 NY 548).

A fiduciary acting on behalf of an estate is required to employ such diligence and prudence to the care and management of the estate assets and affairs as would prudent persons of discretion and intelligence (see King v Talbot, 40 NY 76, 85-86), accented by “” [n]ot honesty alone, but the punctilio of an honor the most sensitive'”” (Matter of Rothko, 43 NY2d 305, 320, quoting Meinhard v Salmon, 249 NY 458, 464; see Matter of Skelly, 284 AD2d 336; Matter of Robinson, 282 AD2d 607; Matter of Scott, 234 AD2d 551, 552). Where the beneficiary of an estate has demanded an accounting, “” the party submitting the account has the burden of proving that he or she has fully accounted for all the assets of the estate, and this evidentiary burden does not change in the event the account is contested. While the party submitting objections bears the burden of coming forward with evidence to establish that the account is inaccurate or incomplete, upon satisfaction of that showing the accounting party must prove, by a fair preponderance of the evidence, that his or her account is accurate and complete'”” (Matter of Tract, 284 AD2d 543, 543, quoting Matter of Schnare, 191 AD2d 859, 860 [citations omitted]; see Matter of Rubin, 30 AD3d 668, 669; Matter of Curtis, 16 AD3d 725, 726-727; Matter of Robinson, 282 AD2d at 607; Matter of Anolik, 274 AD2d 515, 515-516; see also Matter of Mink, 91 AD3d 1061, 1063-1064). Where the objectant satisfies the prima facie burden and the fiduciary fails to rebut it, the Surrogate’s Court may impose surcharges and, where appropriate, may also impose interest charges (see Matter of Gourary v Gourary, 94 AD3d at 673; see Matter of Mink, 91 AD3d at 1064; Matter of Witherill, 37 AD3d 879, 880-881; Matter of Scott, 234 AD2d at 552; Matter of Acker, 128 AD2d at 868; Matter of Etoll, 101 AD2d 935, 936).

Here, Betz satisfied her prima facie burden of demonstrating that Carbone’s account was inaccurate or incomplete, and Carbone failed to rebut that showing. Moreover, because the legitimacy of most, if not all, of Betz’s objections was apparent from a plain reading of the account, no factual issues were presented which would necessitate the conducting of a hearing (see Matter of Schnare, 191 AD2d at 860-861). In any event, “”[a]s the [executor] of decedent’s estate, it was incumbent upon petitioner to maintain clear and accurate records,’ absent which all presumptions . . . and all doubts are to be resolved adversely to [him]'”” (Matter of Mink, 91 AD3d at 1063-1064 quoting Matter of Camarada, 63 AD2d 837, 837). Similarly, the record contains ample proof to [*3]support the Surrogate Court’s determination that Carbone wasted the estate’s assets, improperly omitted assets from his account, and engaged in impermissible self-dealing (see e.g. Greene v Greene, 92 AD3d 838, 839 ; Ross v Ross Metals Corp., 87 AD3d 573, 575; Matter of Passuello, 184 AD2d 108, 112-113; Matter of Etoll, 101 AD2d at 936; Matter of Moschak, 48 Misc 2d 838, 838-839). Since Carbone failed to raise a triable issue of fact in opposition to Betz’s summary judgment motion, the Surrogate’s Court properly granted the subject branches of Betz’s motion.

Since Carbone failed to proffer a reasonable explanation for failing to submit his additional evidence in opposition to Betz’s moving papers, the Surrogate’s Court providently exercised its discretion in denying that branch of his motion which was for leave to renew his opposition to Betz’s summary judgment motion (see CPLR 2221[e][2]; Matter of Nelson v Allstate Ins. Co., 73 AD3d 929; Coccia v Liotti, 70 AD3d 747, 753; Gonzalez v Vigo Constr. Corp., 69 AD3d 565, 566; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 391; Renna v Gullo, 19 AD3d 472, 473).

Carbone’s remaining contentions are without merit.

SKELOS, J.P., FLORIO, LEVENTHAL and HALL, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Chambers       2012-04785         2012 NY Slip Op 08520    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

RANDALL T. ENG, P.J.

WILLIAM F. MASTRO

REINALDO E. RIVERA

PETER B. SKELOS

DANIEL D. ANGIOLILLO, JJ.

2012-04785

[*1]In the Matter of Owen Chambers, an attorney and counselor-at-law. Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, petitioner; Owen Chambers, respondent. (Attorney Registration No. 3974284)

Application by the petitioner, Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, pursuant to 22 NYCRR 691.3, to impose discipline on the respondent based upon disciplinary action taken against him by the Supreme Court of New Jersey. The respondent was admitted to the Bar in the State of New York at a term of the Appellate Division of the Supreme Court in the Third Judicial Department on July 24, 2001.

Diana Maxfield Kearse, Brooklyn, N.Y. (Myron C. Martynetz of

counsel), for petitioner.

OPINION & ORDER

PER CURIAM.By order filed March 9, 2012, the Supreme Court of New Jersey suspended the respondent from the practice of law for a period of three months, effective April 9, 2012, for violating Rules of Professional Conduct (hereinafter Rule) 1.1(a) (gross neglect); Rule 1.3 (lack of diligence); Rule 1.4(b) (failure to communicate with client); Rule 1.15(a) (failure to safeguard property); Rule 8.1(a) (making a false statement to disciplinary authorities); Rule 8.1(b) (failure to cooperate with disciplinary authorities); and Rule 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation). The order was based on a Decision of the Disciplinary Review Board (hereinafter DRB) of the Supreme Court of New Jersey, decided December 22, 2011.

The respondent was admitted to the New Jersey Bar in 2000.

Summarized briefly, the underlying facts, as set forth in the DRB’s decision, are as follows: In 2003, Walter Richardson retained the respondent to pursue the return of funds he believed an individual named Patricia Royster had taken from his retirement dinner. Royster was in charge of organizing the retirement party. After the party, Royster gave Richardson a cash gift of $500 (five $100 bills) and a $500 travel gift certificate. Richardson believed that Royster shortchanged him. When Richardson met the respondent in September 2003, Richardson gave the respondent, as evidence for his case against Royster, the five $100 bills and the gift certificate. Richardson paid the respondent a retainer, and the respondent thereafter filed a summons and complaint in Middlesex County Special Civil Part on Richardson’s behalf. [*2]Royster defaulted, and Richardson obtained a default judgment against Royster for approximately $6,400. The respondent was to obtain an execution of Royster’s wages, but failed to do so. Despite numerous and repeated attempts by Richardson to contact the respondent, the respondent did not communicate with Richardson, aside from sending a letter stating that he owed the respondent more money.

Following a hearing on March 11, 2011, the District VIII Ethics Committee (hereinafter DEC) made certain findings, conclusions, and recommendations. The DRB conducted a de novo review of the record. In a written decision dated December 22, 2011, the DRB was satisfied that the DEC’s conclusion that the respondent was guilty of unethical conduct was fully supported by clear and convincing evidence, and found that the respondent’s failure to move for a wage execution constituted lack of diligence and gross neglect. The DRB further found that the respondent failed to reply to Richardson’s repeated attempts to contact him about the status of the matter, and that the respondent failed to safeguard Richardson’s funds and property. In addition, the DRB found that the respondent misrepresented to Kim Connor, the investigator for the DEC, that the $500 had been deposited into his trust account when, in fact, the money had not been deposited into any account. Lastly, the DRB found that the respondent failed to cooperate with the DEC investigators, and that the respondent’s lying at the DEC hearing was a significant aggravating factor. Under the totality of the circumstances, the DRB determined that a period of suspension of three months was appropriate.

By order filed March 9, 2012, the Supreme Court of New Jersey, inter alia, suspended the respondent from the practice of law for a period of three months, effective April 9, 2012.

The Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts served the respondent with a notice pursuant to 22 NYCRR 691.3, via first class mail, on May 17, 2012. More than 20 days have elapsed since service of the notice, and the respondent has neither filed a verified statement nor requested additional time in which to do so. Accordingly, there is no impediment to the imposition of reciprocal discipline.

In view of the findings of the DRB and the discipline imposed by the Supreme Court of New Jersey, we find that the imposition of reciprocal discipline is warranted and suspend the respondent from the practice of law for a period of six months.

ENG, P.J., MASTRO, RIVERA, SKELOS and ANGIOLILLO, JJ., concur.

ORDERED that the petitioner’s application to impose reciprocal discipline is granted; and it is further,

ORDERED that pursuant to 22 NYCRR 691.3, the respondent, Owen Chambers, is suspended from the practice of law for a period of six months, commencing January 14, 2013, and continuing until further order of this Court. The respondent shall not apply for reinstatement earlier than June 14, 2013. In such application, the respondent shall furnish satisfactory proof that during the said period he (1) refrained from practicing or attempting to practice law, (2) fully complied with this order and with the terms and provisions of the written rules governing the conduct of disbarred, suspended, and resigned attorneys (see 22 NYCRR 691.10), (3) complied with the applicable continuing legal education requirements of 22 NYCRR 691.11(c), and (4) otherwise properly conducted himself; and it is further,

ORDERED that the respondent, Owen Chambers, shall promptly comply with this Court’s rules governing the conduct of disbarred, suspended, and resigned attorneys (see 22 NYCRR 691.10); and it is further,

ORDERED that pursuant to Judiciary Law § 90, during the period of suspension and until further order of the Court, the respondent, Owen Chambers, shall desist and refrain from (l) practicing law in any form, either as principal or as agent, clerk, or employee of another, (2) appearing as an attorney or counselor-at-law before any court, Judge, Justice, board, commission, or other public authority, (3) giving to another an opinion as to the law or its application or any advice in relation thereto, and (4) holding himself out in any way as an [*3]attorney and counselor-at-law; and it is further,

ORDERED that if the respondent, Owen Chambers, has been issued a secure pass by the Office of Court Administration, it shall be returned forthwith to the issuing agency, and the respondent shall certify to the same in his affidavit of compliance pursuant to 22 NYCRR 691.10(f).

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Clark v Ormiston          2012-00679         2012 NY Slip Op 08521    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

WILLIAM F. MASTRO, J.P.

PLUMMER E. LOTT

SHERI S. ROMAN

JEFFREY A. COHEN, JJ.

2012-00679

2012-00680

(Docket No. O-1025-11)

[*1]In the Matter of Susan Clark, appellant,

v

John Ormiston, respondent. Susan Clark, Wappingers Falls, N.Y., appellant pro se.

DECISION & ORDER

In a family offense proceeding pursuant to Family Court Act article 8, the petitioner appeals (1), as limited by her brief, from so much of an order of the Family Court, Putnam County (Reitz, J.), dated December 9, 2011, as granted that branch of the respondent’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the petition for failure to state a cause of action, and (2) from an order of disposition of the same court dated December 13, 2011, which dismissed the petition without prejudice and vacated a temporary order of protection dated October 26, 2011.

ORDERED that the appeal from the order dated December 9, 2011, is dismissed, without costs or disbursements; and it is further,

ORDERED that the order of disposition dated December 13, 2011, is reversed, on the law, without costs or disbursements, that branch of the respondent’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the petition for failure to state a cause of action is denied, the petition is reinstated, the order dated December 9, 2011, is modified accordingly, and the matter is remitted to the Family Court, Putnam County, for further proceedings on the petition; and it is further,

ORDERED that pending further action by the Family Court, Putnam County, the provisions of the temporary order of protection dated October 26, 2011, shall remain in full force and effect.

The appeal from the intermediate order must be dismissed because it is not appealable as of right (see Family Ct Act § 1112), and, in any event, the right of direct appeal therefrom terminated with the entry of the order of disposition (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the intermediate order are brought up for review and have been considered on the appeal from the order of disposition (see CPLR 5501[a][1]; Family Ct Act § 1118; Matter of Anna Coral DeL., 50 AD3d 792).

The petitioner commenced this family offense proceeding alleging, inter alia, that during a court proceeding, the respondent became irate and threw his chair violently while shouting at the judge. The petition further alleged that while being escorted out of the courtroom, the respondent stopped in front of the petitioner while waving his hand and pointing at her and twice shouted “”You better watch out, I’m going to get you!”” During previous proceedings, the respondent had “”muttered things toward [the petitioner] and made motions towards her.”” [*2]

The Family Court should have denied that branch of the respondent’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the petition for failure to state a cause of action. Liberally construing the petition, and giving it the benefit of every possible favorable inference, the petition adequately alleged that the respondent had committed the family offenses of harassment in the first and second degrees and disorderly conduct (see Family Ct Act §§ 165[a], 812[1]; Penal Law §§ 240.25, 240.26, 240.20[1]; Matter of Walton v New York State Dept. of Correctional Servs., 13 NY3d 475, 484; Matter of Pamela N. v Neil N., 93 AD3d 1107, 1108-1110).

The petitioner’s remaining contentions are without merit or are not properly before this Court.

MASTRO, J.P., LOTT, ROMAN and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Fitzgerald        2011-02004         2012 NY Slip Op 08522    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

MARK C. DILLON, J.P.

JOHN M. LEVENTHAL

CHERYL E. CHAMBERS

SANDRA L. SGROI, JJ.

2011-02004

[*1]In the Matter of Claire S. Albertson Fitzgerald, deceased. Gil Santamarina, petitioner-respondent; Jeffrey A. Asher, appellant; Anthony Rahmanan, respondent-respondent. (File No. 2950/81)

L’Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y.

(William T. McCaffery and Jessica E. Zimmerman of counsel), for

appellant.

DECISION & ORDER

In a proceeding, inter alia, to revoke letters of trusteeship previously issued to Anthony Rahmanan, and to hold Jeffrey A. Asher jointly and severally liable with Anthony Rahmanan for the alleged wrongful conduct of Anthony Rahmanan, Jeffrey A. Asher appeals from so much of an amended order of the Surrogate’s Court, Westchester County (Scarpino, Jr., S.), dated January 7, 2011, as granted the petition insofar as asserted against him.

ORDERED that the amended order is reversed insofar as appealed from, on the law, with costs, and the petition insofar as asserted against Jeffrey A. Asher is denied.

Under Limited Liability Company Law § 1205(a), a member of a professional service limited liability company “”shall be personally and fully liable and accountable for any negligent or wrongful act or misconduct committed by him or her or by any person under his or her direct supervision and control while rendering professional services on behalf of such limited liability company.”” Here, the petition does not allege that Jeffrey A. Asher engaged in or directly supervised any of the allegedly wrongful conduct attributed to Anthony Rahmanan. Rather, the sole allegation against Asher was that he was a member of Rahmanan Asher, PLLC; that allegation, however, does not provide a sufficient basis upon which to hold him jointly and severally liable with Rahmanan (see Rothstein v Equity Ventures, 299 AD2d 472, 474; cf. Kew Gardens Hills Apt. Owners, Inc. v Horing Welikson & Rosen, P.C., 35 AD3d 383, 386). Accordingly, the Surrogate’s Court should have denied the petition insofar as asserted against Asher.

DILLON, J.P., LEVENTHAL, CHAMBERS and SGROI, JJ., concur.

ENTER: [*2]

Aprilanne Agostino

Clerk of the Court”

Matter of Fortunato v Murray    2011-08225         2012 NY Slip Op 08523    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

PETER B. SKELOS, J.P.

L. PRISCILLA HALL

LEONARD B. AUSTIN

SYLVIA HINDS-RADIX, JJ.

2011-08225

(Docket No. F-14009-05)

[*1]In the Matter of Anthony T. Fortunato, appellant,

v

Kimberle A. Murray, respondent.

Kent V. Moston, Hempstead, N.Y. (Jeremy L. Goldberg and Dori

Cohen of counsel), for appellant.

DECISION & ORDER

In a child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Nassau County (Aaron, J.), dated August 11, 2011, which denied his objection to so much of an order of the same court (Miller, S.M.) dated March 21, 2011, as, after a hearing, determined that certain medical documents were inadmissible and, thereupon, dismissed his petition for a downward modification of his child support obligations.

ORDERED that the order dated August 11, 2011, is reversed, on the law, without costs or disbursements, the order dated March 21, 2011, is vacated, the petition is reinstated, the father’s objection is granted, and the matter is remitted to the Family Court, Nassau County, for a new determination regarding the admissibility of the medical documents and, thereafter, a new determination of the father’s petition.

In July 2008, the father filed a petition seeking a downward modification of his child support obligations based upon, inter alia, an alleged injury which hindered his ability to work. During a hearing of the matter before Support Magistrate Kathleen Walsh, the father sought to admit certain medical documents, which the Support Magistrate declined to admit into evidence on the basis that the documents constituted hearsay. In an order dated August 8, 2008, the Support Magistrate dismissed the father’s petition, with prejudice.

The father filed an objection to the Support Magistrate’s August 2008 order. By order dated November 19, 2008, the Family Court denied the objection, determining that the medical documents did not fall under the business records exception to the hearsay rule. The father appealed from the Family Court’s order dated November 19, 2008. In a decision and order dated April 13, 2010, this Court stated, inter alia, that a physician’s office records consisting of day-to-day business entries, supported by a proper foundation, are admissible as an exception to the hearsay rule, as opposed to medical reports containing a physician’s opinion, which are not admissible (see Matter of Fortunato v Murray, 72 AD3d 817). However, since the father did not reproduce the medical documents in the record on appeal, this Court could not make a determination as to whether the medical documents in dispute were of the type which are admissible as business records (see id. at 819). As a result, this Court, inter alia, remitted the matter to the Support Magistrate for a review of the subject medical documents in light of this Court’s discussion of admissibility. [*2]

In July 2010, the father was notified that the Clerk’s Office of the Family Court had destroyed the medical documentation which had been subpoenaed by the father for the first hearing. Consequently, the father subpoenaed the medical documentation again from the same physician and sought to admit it into evidence at a hearing before Support Magistrate Penelope B. Cahn. In an order dated October 1, 2010, the Support Magistrate determined that, since it was impossible to review the exact medical documentation which was the subject of the April 2010 order from this Court because that documentation had been destroyed and she could not discern whether the re-subpoenaed documentation was a duplicate of the documentation originally offered into evidence during the first hearing before the previous Support Magistrate, she could not determine the admissibility of the documentation in accordance with this Court’s April 2010 order. The father filed an objection to the Support Magistrate’s October 2010 order. By order dated December 15, 2010, the Family Court granted the father’s objection and remitted the matter to Support Magistrate Neil T. Miller for disposition, inter alia, in accordance with this Court’s April 2010 order.

Thereafter, Support Magistrate Miller reviewed the medical documentation which had been produced by the father’s physician in response to another subpoena. By order dated March 21, 2011, the Support Magistrate determined the medical documentation to be inadmissible, on the basis that the accompanying certification did not make it clear that these documents were the same documents that had been previously produced in response to the first subpoena. In addition, the Support Magistrate determined, inter alia, that the documents received from the father’s physician in response to the father’s subpoena were inadmissible because certain entries were illegible, some documents post-dated the date of the original hearing, and some documents were from other medical service providers. Consequently, the Support Magistrate dismissed the petition, without prejudice. The father filed an objection to so much of the Support Magistrate’s March 2011 order as, after a hearing, determined the subject medical documentation to be inadmissible and, thereupon, dismissed the petition.

On August 11, 2011, the Family Court denied the father’s objection to the Support Magistrate’s March 21, 2011, order. The father appeals.

Contrary to the Support Magistrate’s reasoning, since the original documents were destroyed by the Family Court through no fault of the father, and since the father subpoenaed the documents from the same physician, there was no basis to exclude the documents on the ground that the attached certification failed to clarify whether the newly subpoenaed documents were exact duplicates of those previously offered into evidence. The issue to be decided by the Support Magistrate is not whether the father can prove that the documents produced by his physician pursuant to the most recent subpoena are exactly the same documents which had initially been subpoenaed for the first hearing, but whether the documents currently before the Family Court are admissible, in whole or in part. There may, however, be other valid bases for excluding or redacting portions of those newly subpoenaed medical documents, such as some of the documents being medical reports and not medical records, certain medical records pre-dating the accident referred to in the petition, or certain medical records post-dating the original hearing (see Matter of Perrego v Perrego, 63 AD3d 1072; Montes v New York City Tr. Auth., 46 AD3d 121).

With respect to those documents which are found to be medical records, if any portion of a record is deemed illegible, the medical record as a whole is not inadmissible. Rather, only those entries or notations within the record that are illegible should be deemed inadmissible (see Wilson v Bodian, 130 AD2d 221, 232).

Accordingly, we reverse the order dated August 11, 2011, vacate the order dated March 21, 2011, reinstate the petition, grant the father’s objection, and remit the matter to the Family Court, Nassau County, for a new determination of the admissibility of the subject medical documents and, thereafter, a new determination of the petition.

SKELOS, J.P., HALL, AUSTIN and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Griffin              2012-02571         2012 NY Slip Op 08524    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

RANDALL T. ENG, P.J.

WILLIAM F. MASTRO

REINALDO E. RIVERA

PETER B. SKELOS

RUTH C. BALKIN, JJ.

2012-02571

[*1]In the Matter of F. Hollis Griffin, Jr., admitted as Francis H. Griffin, Jr., an attorney and counselor-at-law. Grievance Committee for the Ninth Judicial District, petitioner; F. Hollis Griffin, Jr., respondent. (Attorney Registration No. 2087120)

DISCIPLINARY proceeding instituted by the Grievance Committee for the Ninth Judicial District. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on January 27, 1982, under the name Francis H. Griffin, Jr. By opinion and order of this Court dated December 18, 1995, the respondent was publicly censured (see Matter of Griffin, 217 AD2d 95).

Gary L. Casella, White Plains, N.Y. (Faith Lorenzo of counsel),

for petitioner.

OPINION & ORDER

PER CURIAM.By decision and order on motion of this Court dated May 15, 2012, the Grievance Committee for the Ninth Judicial District (hereinafter the Grievance Committee) was authorized to institute and prosecute a disciplinary proceeding against the respondent based upon a verified petition dated January 23, 2012, the respondent was directed to serve and file an answer to the petition within 20 days of service upon him of the decision and order, and a Special Referee was appointed to hear and report. That branch of the Grievance Committee’s motion which was to suspend the respondent pursuant to 22 NYCRR 691.4(l)(1)(i), (ii), and (iii) was denied.

The verified petition dated January 23, 2012, contains seven charges of professional misconduct alleging that the respondent, inter alia, failed to promptly disburse funds held in escrow, failed to cooperate with the Grievance Committee, failed to respond to communications from clients, neglected legal matters entrusted to him, failed to file a retainer and/or closing statement as required, and failed to account for funds he received as a fiduciary.

On May 23, 2012, the respondent was personally served with a copy of the decision and order dated May 15, 2012, together with notice of its entry, as well as a copy of the verified petition dated January 23, 2012. More than 20 days have elapsed without an answer to the petition, as directed, or a request for an adjournment.

The Grievance Committee now moves to deem the charges against the respondent established, and to impose such discipline upon him as the Court deems appropriate, based upon his default. The respondent has neither opposed the Grievance Committee’s motion nor interposed any response thereto.

Accordingly, the Grievance Committee’s motion is granted, the charges in the [*2]verified petition are deemed established and, effective immediately, the respondent is disbarred and his name is stricken from the roll of attorneys and counselors-at-law.

ENG, P.J., MASTRO, RIVERA, SKELOS and BALKIN, JJ., concur.

ORDERED that the motion of the Grievance Committee for the Ninth Judicial District is granted; and it is further,

ORDERED that, pursuant to Judiciary Law § 90, effective immediately, the respondent, F. Hollis Griffin, Jr., admitted as Francis H. Griffin, Jr., is disbarred and his name is stricken from the roll of attorneys and counselors-at-law; and it is further,

ORDERED that the respondent, F. Hollis Griffin, Jr., admitted as Francis H. Griffin, Jr., shall comply with this Court’s rules governing the conduct of disbarred, suspended, and resigned attorneys (see 22 NYCRR 691.10); and it is further,

ORDERED that pursuant to Judiciary Law § 90, the respondent, F. Hollis Griffin, Jr., admitted as Francis H. Griffin, Jr., is commanded to desist and refrain from (1) practicing law in any form, either as principal, agent, clerk, or employee of another, (2) appearing as an attorney or counselor-at-law before any court, Judge, Justice, board, commission, or other public authority, (3) giving to another an opinion as to the law or its application or any advice in relation thereto, and (4) holding himself out in any way as an attorney and counselor-at-law; and it is further,

ORDERED that if the respondent, F. Hollis Griffin, Jr., admitted as Francis H. Griffin, Jr., has been issued a secure pass by the Office of Court Administration, it shall be returned forthwith to the issuing agency and the respondent shall certify to the same in his affidavit of compliance pursuant to 22 NYCRR 691.10(f).

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Jasen v Karassik           2012-00688         2012 NY Slip Op 08525    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

WILLIAM F. MASTRO, J.P.

PETER B. SKELOS

ANITA R. FLORIO

THOMAS A. DICKERSON, JJ.

2012-00688

2012-03983

(Docket Nos. F-3720-07, F-3618-10)

[*1]In the Matter of Olly Jasen, appellant,

v

Bruce A. Karassik, respondent.

Olly Jasen, Toronto, Ontario, Canada, appellant pro se.

Kantrowitz, Goldhamer & Graifman, P.C., Chestnut Ridge,

N.Y. (Paul B. Goldhamer and William

T. Schiffman of counsel), for

respondent.

DECISION & ORDER

In related proceedings pursuant to the Family Court Act, inter alia, to enforce a child support order dated April 24, 2007, and entered in the Superior Court of Justice of the Province of Ontario, Canada, the petitioner appeals, as limited by her brief, from (1) so much of an order of the Family Court, Rockland County (Warren, J.), dated December 7, 2011, as denied her objections to so much of an order of the same court (Kaufman, S.M.), dated July 15, 2011, as, after a hearing, denied that branch of her petition which was for an award of an attorney’s fee for legal services rendered to her between August 15, 2007, and November 1, 2010, granted that branch of her petition which was for an award of interest on unpaid costs only to the extent of awarding such interest at the rate of 2% per annum, and denied those branches of her petition which were for an award of interest at the rate of 6% per annum on unpaid child support arrears accruing from April 13, 2010, to June 13, 2011, and (2) so much of an order of the same court (Warren, J.), dated March 26, 2012, as, upon reargument, and upon the vacatur of the determination in the order dated December 7, 2011, denying her objection to the determination in the order dated July 15, 2011, denying that branch of her petition which was for an award of an attorney’s fee for legal services rendered to her between August 15, 2007, and November 1, 2010, directed a hearing in connection with that branch of the petition, adhered to the determination in the order dated December 7, 2011, denying her objection to the determination in the order dated July 15, 2011, granting that branch of her petition which was for an award of interest on unpaid costs only to the extent of awarding interest at the rate of 2% annum, and, in effect, adhered to the determination in the order dated December 7, 2011, denying her objection to the determination in the order dated July 15, 2011, denying that branch of her petition which was for an award of interest at the rate of 6% per annum on unpaid child support arrears accruing from April 13, 2010, to June 13, 2011, and denied that branch of her motion which was, in effect, for leave to renew her objection to so much of the order dated July 15, 2011, as denied that branch of her petition which was to direct the relevant Support Collection Unit to collect all support arrears, costs, and interest “”in full immediately,”” which objection had been denied in the order dated December 7, 2011.

ORDERED that the appeal from the order dated December 7, 2011, is dismissed, without costs or disbursements, as that order was superseded by so much of the order dated March [*2]26, 2012, as was made upon reargument; and it is further,

ORDERED that the appeal from so much of the order dated March 26, 2012, as directed a hearing in connection with that branch of the petition which was for an award of an attorney’s fee for legal services rendered to the petitioner between August 15, 2007, and November 1, 2010, is dismissed, without costs or disbursements, as no appeal lies as of right from an order which directs a hearing to aid in the disposition of a motion (see Serraro v Staropoli, 94 AD3d 1083, 1084; Aguilera v Pistilli Constr. & Dev. Corp., 63 AD3d 765, 766; Akerman v Akerman, 53 AD3d 633, 633), and leave to appeal has not been granted; and it is further,

ORDERED that the order dated March 26, 2012, is modified, on the law, by deleting the provision thereof, upon reargument, in effect, adhering to the determination in the order dated December 7, 2011, denying the petitioner’s objection to the determination in the order dated July 15, 2011, denying that branch of the petition which was for an award of interest at the rate of 6% per annum on unpaid child support arrears accruing from April 13, 2010, to June 13, 2011, and substituting therefor a provision, upon reargument, vacating that determination in the order dated December 7, 2011, and thereupon granting that objection; as so modified, the order dated March 26, 2012, is affirmed insofar as reviewed, without costs or disbursements.

In an order dated April 24, 2007 (hereinafter the Canadian order), the Superior Court of Justice of the Province of Ontario, Canada, awarded the mother child support, and directed that any unpaid child support obligation was to accrue interest at the rate of 6% per annum. The father failed to pay his child support obligation from April 13, 2010, to June 13, 2011, in the principal sum of $16,642.15, and the mother petitioned the Family Court, Rockland County, inter alia, to enforce the Canadian order. Although the Family Court directed the father to pay that principal sum, it declined to include an award of interest on that sum. Contrary to the Family Court’s conclusion, the award of child support arrears should have included an award of interest at the rate of 6% per annum.

Under the Uniform Interstate Family Support Act (hereinafter the UIFSA), which New York adopted as article 5-B of the Family Court Act (see Matter of Spencer v Spencer, 10 NY3d 60, 65), a state may not modify an issuing state’s order of child support unless the issuing state has lost continuing, exclusive jurisdiction, or the parties consent to a modification (see id. at 66; see also Matter of Batesole-Harmer v Batesole, 28 AD3d 551, 551). Although the UIFSA does not expressly apply to the Canadian order, since Ontario is not a “”state”” within the meaning of that statute (see Family Ct Act § 580-101[19]), the equitable principles embodied therein, as well as traditional common-law principles of comity, require New York courts to enforce the terms of a child support order or judgment entered in the courts of a foreign nation, “”absent some showing of fraud in the procurement of the judgment or that recognition of the judgment would do violence to some strong public policy of this State”” (Matter of Fickling v Fickling, 210 AD2d 223, 223-224; see Matter of Hiebaum v Hiebaum, 233 AD2d 397, 398).

Upon reargument, the Family Court, in effect, adhered to its prior determination denying the mother’s objection to the determination of a support magistrate denying that branch of the petition which was for an award of interest at the rate of 6% per annum on unpaid child support arrears that had accrued over the period from April 13, 2010, to June 13, 2011, in the principal sum of $16,642.15. In doing so, the Family Court, in effect, improperly modified the Canadian order, notwithstanding the facts that the courts of Ontario have not lost continuing, exclusive jurisdiction over the matter, the parties did not consent to the modification, and there was no showing that the Canadian order was procured by fraud or that recognition of that order would do violence to some strong public policy of New York. Since the mother’s request for an award of interest at the rate of 6% per annum on these arrears should have been granted, the arrears in the amount of $16,642.15 that were awarded by the Family Court must bear interest at a rate of 6% per annum, as directed in the Canadian order.

The mother’s remaining contentions are either without merit or not properly before this Court. [*3]

MASTRO, J.P., SKELOS, FLORIO and DICKERSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Kaur v Singh   2011-11512         2012 NY Slip Op 08526    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

WILLIAM F. MASTRO, J.P.

DANIEL D. ANGIOLILLO

SANDRA L. SGROI

ROBERT J. MILLER, JJ.

2011-11512

2011-11513

(Docket Nos. O-19009/09, V-19396/09)

[*1]In the Matter of Sarbjeet Kaur, respondent,

v

Gurmail Singh, appellant. (Proceeding No. 1)

In the Matter of Gurmail Singh, appellant,

v

Sarbjeet Kaur, respondent. (Proceeding No. 2) Diana H. Kelly, Jamaica, N.Y., for appellant. Helene Bernstein, Brooklyn, N.Y., for respondent. Geanine Towers, Brooklyn, N.Y., attorney for the children.

DECISION & ORDER

In a visitation proceeding pursuant to Family Court Act article 6 and a related family offense proceeding pursuant to Family Court Act article 8, the father appeals from (1) an order of protection of the Family Court, Queens County (Fitzmaurice, J.), dated November 30, 2011, which, after a fact-finding hearing, directed him, inter alia, to stay away from the parties’ minor child for a period of five years, and (2) an order of the same court dated December 6, 2011, which, after a fact-finding hearing, dismissed his petition seeking visitation with the minor child.

ORDERED that the order of protection and the order are affirmed, without costs or disbursements.

In a family offense proceeding, the allegations asserted in a petition seeking the issuance of an order of protection must be supported by “”a fair preponderance of the evidence”” (Family Ct Act § 832; see Matter of Hasbrouck v Hasbrouck, 59 AD3d 621; Matter of Patton v Torres, 38 AD3d 667, 668; Matter of Dabbene v Dabbene, 297 AD2d 812; Matter of Hogan v Hogan, 271 AD2d 533). The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and that court’s determination regarding the credibility of witnesses is entitled to great weight on appeal and will not be disturbed if supported by the record (see Matter of Luke v Luke, 72 AD3d 689; Matter of Holder v Francis, 67 AD3d 679; Matter of Sblendorio v D’Agostino, 60 AD3d 773; Matter of Fernandez v Pacheco, 59 AD3d 542, 543).

At a fact-finding hearing before the Family Court, it was established by a fair preponderance of the evidence that the father committed the family offenses of reckless [*2]endangerment in the second degree (see Family Ct Act § 812[1]; Penal Law § 120.20), menacing in the second degree (see Penal Law § 120.14[2]; Matter of Gray v Gray, 55 AD3d 909, 910), and assault in the second degree (see Penal Law § 120.05). Further, the Family Court’s finding that aggravating circumstances were present was supported by the record (see Matter of Hassett v Hassett, 4 AD3d 527; Matter of Reilly v Reilly, 254 AD2d 361, 362; Matter of Mawhirt v Mawhirt, 241 AD2d 524). Accordingly, the Family Court properly issued an order of protection directing the father, inter alia, to stay away from the minor child for a period of five years (see Family Ct Act § 842).

Contrary to the father’s contention, under the circumstances of this case, the Family Court’s decision not to hold a dispositional hearing prior to issuing the order of protection does not require reversal (see Sblendorio v D’Agostino, 60 AD3d at 774; Matter of Hassett v Hassett, 4 AD3d 527; Matter of Dabbene v Dabbene, 297 AD2d at 813; Matter of Annie C. v Marcellus W., 278 AD2d 177; Matter of Quintana v Quintana, 237 AD2d 130). In addition, upon the exercise of our factual review power, the Family Court’s disposition was not contrary to the weight of the evidence (see Matter of Sperling v Sperling, 96 AD3d 1067, 1068; Matter of Sblendorio v D’Agostino, 60 AD3d at 774).

Similarly, the Family Court’s determination that the denial of visitation with the father was in the child’s best interests has a sound and substantial basis in the record and, therefore, we find no basis to disturb it (see Matter of Samia Z., 297 AD2d 385; Matter of Licitra v Licitra, 255 AD2d 384; Matter of MacEwen v MacEwen, 214 AD2d 572).

The father’s remaining contentions are either unpreserved for appellate review or without merit.

MASTRO, J.P., ANGIOLILLO, SGROI and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Levitsky v Swarts         2011-04603         2012 NY Slip Op 08527    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

REINALDO E. RIVERA, J.P.

MARK C. DILLON

JOHN M. LEVENTHAL

CHERYL E. CHAMBERS, JJ.

2011-04603

(Index No. 25914/10)

[*1]In the Matter of Steven Levitsky, appellant,

v

David J. Swarts, etc., respondent.

Steven Levitsky, New York, N.Y., appellant pro se.

Eric T. Schneiderman, Attorney General, New York, N.Y.

(Michael S. Belohlavek and Patrick J. Walsh

of counsel), for respondent.

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to review a determination of the New York State Department of Motor Vehicles, dated September 18, 2010, suspending the petitioner’s registration and license plates with respect to a certain motor vehicle for a period of 12 days pursuant to Vehicle and Traffic Law § 318, the petitioner appeals from a judgment of the Supreme Court, Westchester County (Colangelo, J.), dated April 8, 2011, which denied the petition and dismissed the proceeding.

ORDERED that the judgment is affirmed, with costs.

Vehicle and Traffic Law § 318 provides that the New York State Department of Motor Vehicles (hereinafter the DMV) is to issue a mandatory suspension of a motor vehicle’s registration when it receives evidentiary proof that the financial security for such a vehicle is no longer in effect (see Matter of Giambra v Commissioner of Motor Vehs. of State of N.Y., 59 AD2d 648, affd 46 NY2d 743; Matter of Stevens v Hults, 41 Misc 2d 168, 169).

In September 2010, the petitioner’s insurance company notified the DMV that the insurance on a certain automobile registered to the petitioner had lapsed. The petitioner contends that because his insurance company did not properly notify him that the insurance on the subject vehicle had lapsed, in compliance with Vehicle and Traffic Law § 313(1)(a), the suspension of his registration and license plates with respect to the subject vehicle was improper. However, the provisions of Vehicle and Traffic Law § 313 are not applicable to the DMV’s mandatory duty to suspend the registration of an uninsured vehicle pursuant to Vehicle and Traffic Law § 318 (see Matter of Stevens v Hults, 41 Misc 2d at 169; see also Matter of Langabeer v Hults, 52 Misc 2d 730, 731; cf. Matter of Progressive Northeastern Ins. Co. v Robbins, 279 AD2d 631, 632). Under the circumstances, the DMV’s suspension of the petitioner’s registration and license plates with respect to the subject vehicle for a period of 12 days pursuant to Vehicle and Traffic Law § 318 was rational and not arbitrary and capricious. [*2]

The petitioner’s contention that he was deprived of due process is without merit.

RIVERA, J.P., DILLON, LEVENTHAL and CHAMBERS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Levner             2008-08838         2012 NY Slip Op 08528    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

RANDALL T. ENG, P.J.

WILLIAM F. MASTRO

REINALDO E. RIVERA

PETER B. SKELOS

SHERI S. ROMAN, JJ.

2008-08838

[*1]In the Matter of Nathan Levner, a suspended attorney. Grievance Committee for the Tenth Judicial District, petitioner; Nathan Levner, respondent. (Attorney Registration No. 1933571)

DISCIPLINARY proceeding instituted by the Grievance Committee for the Tenth Judicial District. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Third Judicial Department on May 30, 1984.

Robert A. Green, Hauppauge, N.Y. (Ian P. Barry of counsel), for

petitioner

OPINION & ORDER

PER CURIAM. By decision and order on application dated June 1, 2012, the respondent was immediately suspended from the practice of law pursuant to 22 NYCRR 691.4(l)(1)(i), (ii), and (iii), upon a finding that he was guilty of professional misconduct immediately threatening the public interest based upon his failure to cooperate with the legitimate demands of the Grievance Committee for the Tenth Judicial District (hereinafter Grievance Committee), his admission under oath that he misappropriated client funds entrusted to him for his own use and benefit, and other uncontroverted evidence of his professional misconduct, and the Grievance Committee was authorized to institute and prosecute a disciplinary proceeding against the respondent based upon a verified petition dated February 23, 2012. The petition alleged, inter alia, that the respondent was guilty of engaging in conduct adversely reflecting on his fitness as a lawyer, by failing to preserve funds entrusted to him as a fiduciary; failing to promptly pay to his client funds that the client was entitled to receive; misappropriating client funds entrusted to him as a fiduciary for his own use and benefit; and making cash withdrawals from his attorney escrow account.On June 14, 2012, the respondent was personally served with a copy of the decision and order dated June 1, 2012, together with notice of entry, as well as a copy of the verified petition dated February 23, 2012. More than 20 days have elapsed without an answer to the petition, as directed, or a request for an adjournment.

The Grievance Committee now moves to deem the charges against the respondent established, and to impose such discipline upon him as the Court deems appropriate, based upon his default. The respondent has neither opposed the Grievance Committee’s motion nor interposed any response thereto.

Accordingly, the Grievance Committee’s motion is granted, the charges in the verified petition are deemed established and, effective immediately, the respondent is disbarred and his name is stricken from the roll of attorneys and counselors-at-law. [*2]

ENG, P.J., MASTRO, RIVERA, SKELOS and ROMAN, JJ., concur.

ORDERED that the Grievance Committee’s motion is granted; and it is further,

ORDERED that, pursuant to Judiciary Law § 90, effective immediately, the respondent, Nathan Levner, is disbarred and his name is stricken from the roll of attorneys and counselors-at-law; and it is further,

ORDERED that the respondent, Nathan Levner, shall continue to comply with this Court’s rules governing the conduct of disbarred, suspended, and resigned attorneys (see 22 NYCRR 691.10); and it is further,

ORDERED that pursuant to Judiciary Law § 90, the respondent, Nathan Levner, is commanded to continue to desist and refrain from (1) practicing law in any form, either as principal, agent, clerk, or employee of another, (2) appearing as an attorney or counselor-at-law before any court, Judge, Justice, board, commission, or other public authority, (3) giving to another an opinion as to the law or its application or any advice in relation thereto, and (4) holding himself out in any way as an attorney and counselor-at-law; and it is further,

ORDERED that if the respondent, Nathan Levner, has been issued a secure pass by the Office of Court Administration, it shall be returned forthwith to the issuing agency and the respondent shall certify to the same in his affidavit of compliance pursuant to 22 NYCRR 691.10(f).

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Mannino v Department of Motor Vehs. of State of N.Y.- Traffic Violations Div.               2011-11351         2012 NY Slip Op 08529             “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

DANIEL D. ANGIOLILLO, J.P.

LEONARD B. AUSTIN

SANDRA L. SGROI

ROBERT J. MILLER, JJ.

2011-11351

(Index No. 13597/11)

[*1]In the Matter of Philip M. Mannino, petitioner,

v

Department of Motor Vehicles of State of New York- Traffic Violations Division, respondent.

Young & Young, LLP, Central Islip, N.Y. (Richard W. Young,

Sr., of counsel), for petitioner.

Eric T. Schneiderman, Attorney General, New York, N.Y.

(Michael S. Behlolavek, David Lawrence III,

and Richard Dearing of counsel), for

respondent.

DECISION & JUDGMENT

Proceeding pursuant to CPLR article 78 to review a determination of the Administrative Appeals Board of the New York State Department of Motor Vehicles dated November 30, 2010, confirming a determination of an Administrative Law Judge dated August 12, 2010, which, after a hearing, found that the petitioner had refused to submit to a chemical test in violation of Vehicle and Traffic Law § 1194, and revoked his driver’s license.

ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.

To annul an administrative determination made after a hearing directed by law at which evidence is taken, a court must conclude that the record lacks substantial evidence to support the determination (see Matter of Kelly v Safir, 96 NY2d 32, 38; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231; Matter of Hildreth v New York State Dept. of Motor Vehs. Appeals Bd., 83 AD3d 838, 839). Substantial evidence is “”such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact”” (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180; see Matter of Hildreth v New York State Dept. of Motor Vehs. Appeals Bd., 83 AD3d at 839). “” The courts may not weigh the evidence or reject the choice made by [an administrative agency] where the evidence is conflicting and room for choice exists'”” (Matter of Berenhaus v Ward, 70 NY2d 436, 444, quoting Matter of Stork Rest. v Boland, 282 NY 256, 267; see Matter of Hildreth v New York State Dept. of Motor Vehs. Appeals Bd., 83 AD3d at 839).

A review of the record demonstrates that the findings of the Administrative Law Judge are supported by substantial evidence (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d at 231-[*2]232). The evidence adduced at the hearing demonstrated that the police officer who arrested the petitioner in a parking lot after the petitioner’s motor vehicle was involved in an accident had reasonable grounds to believe that the petitioner had been driving in violation of Vehicle and Traffic Law § 1192 and that the officer lawfully arrested the petitioner (see Vehicle and Traffic Law § 1194[2][c]; Matter of Robinson v Swarts, 82 AD3d 986; Matter of Sharf v New York State Dept. of Motor Vehicles, 74 AD3d 978; Matter of Eyrich v Jackson, 267 AD2d 237; Matter of Leavy v Commissioner of Motor Vehs. of State of N.Y., 141 AD2d 643). The only testimony presented at the administrative hearing was that of the police officer, who arrested the petitioner for a violation of Vehicle and Traffic Law § 1192(3). The officer testified that, although he did not witness the accident or the petitioner in his motor vehicle when the officer arrived on the scene, he was told by witnesses, softball players who were present in the parking lot but were not identified in the police accident report, that the petitioner had been driving his vehicle when the accident occurred. Contrary to the petitioner’s contentions, “”[h]earsay evidence can be the basis of an administrative determination”” (Matter of Gray v Adduci, 73 NY2d 741, 742; see Matter of Andresen v State of N.Y. Dept. of Motor Vehs., 227 AD2d 617, 618; Matter of Butler v Nassau County Civ. Serv. Commn., 175 AD2d 159, 161). Further, the officer testified that, at the accident scene, the petitioner admitted that he was the driver of the vehicle (see Matter of Zwack v Passidomo, 108 AD2d 1009; Matter of Randall v Passidomo, 101 AD2d 670). The petitioner did not testify that he did not make such an admission to the officer (see 15 NYCRR 127.5[b]; Matter of Northland Transp. v Jackson, 271 AD2d 846, 848).

Moreover, in appealing from the Administrative Law Judge’s determination, the petitioner did not contest that there was substantial evidence to support the Administrative Law Judge’s findings that the police officer gave the petitioner sufficient warning of the consequences of refusing to submit to a chemical test, and that the petitioner refused to submit to the chemical test (see Vehicle and Traffic Law § 1194[2][c]; Matter of Robinson v Swarts, 82 AD3d 986; Matter of Sharf v New York State Dept. of Motor Vehicles, 74 AD3d 978; Matter of Eyrich v Jackson, 267 AD2d 237; Matter of Leavy v Commissioner of Motor Vehs. of State of N.Y., 141 AD2d 643).

The petitioner’s remaining contention is not properly before this Court, as it was not raised in the administrative hearing (see Matter of Gonzalez v State Liq. Auth., 30 NY2d 108, 112; Matter of Sharf v New York State Dept. of Motor Vehicles, 74 AD3d 978; Matter of Myles v Doar, 24 AD3d 677, 678; Matter of Ambery v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 298 AD2d 582).

ANGIOLILLO, J.P., AUSTIN, SGROI and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Kristina Mc. (Robert Mc.)         2011-11451         2012 NY Slip Op 08530    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

WILLIAM F. MASTRO, J.P.

PLUMMER E. LOTT

SHERI S. ROMAN

JEFFREY A. COHEN, JJ.

2011-11451

2012-00329

(Docket Nos. N-17194-10, N-17195-10, N-17196-10)

[*1]In the Matter of Kristina Mc. (Anonymous). Suffolk County Department of Social Services, respondent;

and

Robert Mc. (Anonymous), appellant. (Proceeding No. 1)

In the Matter of Ryan Mc. (Anonymous). Suffolk County Department of Social Services, respondent; Robert Mc. (Anonymous), appellant. (Proceeding No. 2)

In the Matter of Stephanie Mc. (Anonymous). Suffolk County Department of Social Services, respondent;

and

Robert Mc. (Anonymous), appellant. (Proceeding No. 3)

Susan A. DeNatale, Mastic, N.Y., for appellant.

Dennis M. Cohen, County Attorney, Central Islip, N.Y. (Brian

B. Mulholland of counsel), for

respondent.

Robin Stanco, Central Islip, attorney for the children.

DECISION & ORDER

In three related child protective proceedings pursuant to Family Court Act article 10, the father appeals, as limited by his brief, from (1) so much of an order of disposition of the Family Court, Suffolk County (Loguercio, J.), dated November 9, 2011, as, upon so much of a fact-finding order of the same court dated June 9, 2011, made after a hearing, as found that he neglected the three subject children, placed them under the supervision of the Suffolk County Department of Social Services, and (2) so much of an amended order of fact-finding and disposition of the same court dated December 20, 2011, as found that he neglected the three subject children, and placed them under the supervision of the Suffolk County Department of Social Services. The appeals bring up for review the fact-finding order dated June 9, 2011.

ORDERED that the appeal from the order of disposition is dismissed, without costs or disbursements, as that order was superseded by the amended order of fact-finding and disposition; and it is further, [*2]

ORDERED that the amended order of fact-finding and disposition is affirmed insofar as appealed from, without costs or disbursements.

The Family Court properly found that the Suffolk County Department of Social Services sufficiently established that the father neglected the three subject children (see Family Ct Act § § 1012[f][i], 1046[b][i]; Matter of Deandre T., 253 AD2d 497). A preponderance of the evidence at the hearing established that the subject children’s mental or emotional condition had been or was in imminent danger of becoming impaired by the father’s abuse of alcohol and commission of acts of domestic violence in their presence (see Matter of Jada F., 97 AD3d 575, 576). As the Family Court’s determination has a sound and substantial basis in the record, we decline to disturb it (see Matter of Bianca P., 94 AD3d 1126; Matter of Jayda D.-B., 33 AD3d 998).

MASTRO, J.P., LOTT, ROMAN and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Mims                2010-10457         2012 NY Slip Op 08531    “Decided on December 12, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

REINALDO E. RIVERA, J.P.

MARK C. DILLON

DANIEL D. ANGIOLILLO

ANITA R. FLORIO

JOHN M. LEVENTHAL, JJ.

2010-10457

[*1]In the Matter of Jerry M. Mims, admitted as Jerry Marvin Mims, an attorney and counselor-at-law. Grievance Committee for the Tenth Judicial District, petitioner; Jerry M. Mims, respondent. (Attorney Registration No. 2787588)

DISCIPLINARY proceeding instituted by the Grievance Committee for the Tenth Judicial District. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on January 8, 1997, under the name Jerry Marvin Mims. By decision and order of this Court dated January 6, 2011, the Grievance Committee for the Tenth Judicial District was authorized to institute and prosecute a disciplinary proceeding in this Court against the respondent based upon the acts of professional misconduct set forth in a verified petition dated October 19, 2010, and the issues raised by the petition and any answer thereto were referred to John P. Clarke, Esq., as Special Referee to hear and report. Robert A. Green, Hauppauge, N.Y. (Robert H. Cabble of counsel), for petitioner.

Bracken Margolin Besunder, Islandia, N.Y. (Harvey Besunder of

counsel), for respondent.

OPINION & ORDER

PER CURIAM. The Grievance Committee for the Tenth Judicial District (hereinafter the Grievance Committee) served the respondent with a petition, dated October 19, 2010, containing eight charges of professional misconduct. The respondent served an answer, dated March 8, 2011, in which he admitted some, but not all, of the factual allegations contained in the petition. He averred that he did not engage in any professional misconduct. Following a hearing, the Special Referee sustained charges one through five, seven, and eight, but did not sustain charge six.Charges one through four emanate from a common set of factual allegations, as follows:

At all relevant times herein, the respondent maintained an Interest on Lawyer’s Account (hereinafter IOLA account) at the Bank of America in connection with his practice of law, denominated “”Jerry M. Mims Attorney IOLA Fund.”” Other than a small number of documents, the respondent failed to generate or maintain the required bookkeeping records for his IOLA account for the period from January 2005 through January 2008. The respondent failed to generate or maintain records specifically identifying the date, source, and description of each item deposited, as well as the date, payee, and purpose of each withdrawal or disbursement; failed to generate or maintain records showing the source of all funds deposited in the IOLA account, the names of all [*2]persons for whom such funds are or were held, the amounts of such funds, the description and amounts of the funds that were disbursed, and the names of all persons to whom such funds were disbursed; failed to generate or maintain copies of all retainer and compensation agreements with clients; failed to generate or maintain copies of all statements to clients or other persons showing the disbursement of funds to them or on their behalf; failed to generate or maintain copies of all bills rendered to clients; failed to generate or maintain copies of all records showing payments to lawyers, investigators, or other persons, not in his regular employ, for services rendered or performed; failed to generate or maintain copies of all retainer and closing statements filed with the Office of Court Administration; failed to maintain all checkbooks and check stubs, prenumbered canceled checks, and duplicate deposit slips; and failed to generate or maintain entries of all financial transactions in a record of receipts and disbursements in his IOLA account, in ledger books or similar records, or in any other books of account kept in the regular course of his practice, or make such entries at or near the time of the act, condition, or event recorded.

During the course of its investigation, the Grievance Committee requested that the respondent provide the financial records he was required to generate or maintain in connection with his IOLA account, and served the respondent with a subpoena directing him to produce those records. The respondent provided the Grievance Committee with some bank statements, without accompanying records, as well as a limited number of documents pertaining to a limited number of clients or matters. He otherwise failed to provide the financial records required.

Bank records pertaining to the respondent’s IOLA account for the period from January 2005 through January 2008 reflect that he made numerous cash withdrawals from that account, as follows:

Month/YearAmount

August 2005$38,404.55

September 2005$15,700.00

October 2005$27,475.00

November 2005$27,176.00

December 2005$24,150.00

January 2006$ 5,149.00

February 2006$ 2,760.00

October 2006$ 3,200.00

November 2006$ 150.00

December 2006$ 9,350.00

January 2007$ 6,950.00

February 2007$ 5,350.00

March 2007$ 5,535.00

April 2007$12,600.00

May 2007$17,165.00

June 2007$ 8,720.00

July 2007$ 8,810.00

August 2007$17,278.00

September 2007$ 8,100.00

October 2007$ 6,200.00

November 2007$ 4,860.00

December 2007$ 8,940.00

January 2008$10,512.00

On or about July 8, 2005, the respondent deposited into his IOLA account a check drawn on the account of Keegan & Keegan, P.C. (hereinafter the Keegan firm), in the amount of $10,000 and payable to the respondent. These funds represented the proceeds of a personal or business loan from the Keegan firm to the respondent. The respondent disbursed these funds from his IOLA account to third parties for costs and expenses in connection with the operation of his law firm.

Based upon the foregoing, charge one alleges that the respondent failed to maintain required bookkeeping records for his attorney IOLA account, for the period from January 2005 through January 2008, in violation of Code of Professional Responsibility DR 9-102(d) (22 NYCRR 1200.46[d]).

Based upon the foregoing, charge two alleges that the respondent failed to produce [*3]all the financial records required by Code of Professional Responsibility DR 9-102(d) in response to a notice and subpoena from the Grievance Committee, in violation of Code of Professional Responsibility DR 9-102(i) (22 NYCRR 1200.46[i]).

Based upon the foregoing, charge three alleges that the respondent made withdrawals from his IOLA account other than in the required manner, in violation of Code of Professional Responsibility DR 9-102(e) (22 NYCRR 1200.46[e]).

Based upon the foregoing, charge four alleges that the respondent commingled funds in his IOLA account with personal or business funds, in violation of Code of Professional Responsibility DR 9-102(a) (22 NYCRR 1200.46[a]).

On or about May 24, 2004, a collections account was placed with the respondent through an entity entitled “”Collect America,”” an organization whose business included the purchase of charged-off consumer receivables directly and through subsidiaries, and which placed the accounts with attorneys for collection. The respondent was a member of a network of attorneys that Collect America employed in order to perform collections work. The respondent and Collect America operated pursuant to a “”franchise”” agreement, under which the respondent provided legal services to Collect America in connection with collection matters placed with him.

The respondent resolved a May 24, 2004, collection matter by way of a settlement, under which an entity known as National Foundation for Debt Management (hereinafter NFDM) made monthly remittances to the respondent, incident to his practice of law, on behalf of the debtor, in the amount of $204 per payment.

In or around October 2005, the franchise agreement between the respondent and Collect America was assigned to another attorney. This resulted in the reassignment of the May 24, 2004, collection matter from the respondent to successor counsel.

Between October 2005 and March 2007, NFDM continued to make the monthly periodic payments to the respondent. The respondent forwarded the checks that he received to Collect America for each month from October 2005 through August 2006.

NFDM sent the respondent monthly payments, in the amount of $204 each, for the months of September to December 2006 and January 2007. The respondent deposited each of those checks into his IOLA account. The respondent did not remit the funds from these five checks to Collect America, but instead deposited them into his IOLA account and thereafter misappropriated the NFDM funds for a use other than that for which they were intended.

In or around September 2006, the respondent received a check dated September 4, 2006, in the amount of $1,488.68, payable to The Law Office of Jerry M. Mims, P.C. The check was a payment to the respondent, incident to his practice of law, in connection with a collection matter that had been placed with him by Collect America prior to the re-assignment of the respondent’s franchise agreement. The respondent deposited this check into an account bearing account number xxxxxxxx8496. He has been unable to provide an explanation for the nature and location of this account. The respondent has not produced any financial records for this account. He did not remit these funds to Collect America. Rather, the respondent misappropriated these funds for a use other than that for which they were intended.

Based upon the foregoing, charge five alleges that the respondent misappropriated funds entrusted to him incident to his practice of law by using them for purposes other than those for which they were intended, in violation of Code of Professional Responsibility DR 9-102(a) (22 NYCRR 1200.46[a]).

On or about November 18, 2005, the respondent, as promisor, executed a promissory note, the terms of which obligated him to repay to Collect America the principal sum of $38,124.60, with interest at the rate of 7% per annum, amortized over 18 months, in 11 equal monthly payments commencing January 1, 2006, with a final balloon payment of the entire unpaid principal balance and all accrued and unpaid interest due December 1, 2006. The respondent defaulted on the note. In or about February 2006, Collect America commenced an action against the respondent in the District Court, Denver County, Colorado, alleging breach of contract based upon the respondent’s default on the November 18, 2005, promissory note. In or about July 2006, the respondent entered into a stipulation of settlement, which provided, in pertinent part, that the respondent agreed to a new payment schedule, and that Collect America would voluntarily discontinue the court action, but that, in the event of the respondent’s further default, a judgment would automatically be entered against him for the remaining balance, plus interest. The respondent defaulted. On or about December 12, 2006, a default judgment was entered against the respondent in the District Court, Denver County, [*4]Colorado, awarding judgment in favor of Collect America and against the respondent and his law firm, Jerry M. Mims, P.C., jointly and severally, in the amount of $39,569.36, representing the principal amount of $38,188.36, plus costs in the sum of $381. As of the date of the instant petition, the respondent had failed to satisfy the judgment.

Based upon the foregoing, charge six alleges that the respondent engaged in conduct prejudicial to the administration of justice by failing to satisfy a judgment incurred incident to his practice of law, in violation of Code of Professional Responsibility DR 1-102(a)(5) (22 NYCRR 1200.46[a][5]).

On or about January 19, 2006, Collect America filed a complaint against the respondent with the Grievance Committee. The substance of the complaint was the respondent’s failure to repay to Collect America the sums due and owing on the November 18, 2005, promissory note, in the principal amount of $38,124.60, plus interest. By letter dated February 7, 2006, the Grievance Committee sent the respondent a copy of the Collect America complaint, requested a written answer within 15 days, and advised the respondent that an unexcused failure to submit an answer constitutes professional misconduct independent of the merits of the complaint. No response was received. By further letter dated March 13, 2006, the respondent’s counsel advised the Grievance Committee that, in accordance with discussions with Grievance Committee counsel, the respondent had prepared a response to the complaint, which would be forwarded after review. The respondent submitted an answer to the January 19, 2006, complaint from Collect America, dated June 6, 2006.

By letter dated November 6, 2006, the Grievance Committee sent a copy of Collect America’s reply to the respondent and requested additional comments and information within 15 days. No response was received within the time allotted. By letter dated May 4, 2007, the Grievance Committee referred to its November 6, 2006, letter; noted that there had been no response; requested information identifying the specific bank account into which the subject funds had been deposited; requested bank and bookkeeping records for the six months preceding the date of the letter with respect to the account into which the subject funds had been deposited; and requested copies of the franchise agreement or agreements with Collect America.

On or about August 15, 2007, Collect America filed a supplemental complaint, alleging that the respondent had received and deposited the five checks from NFDM and failed to remit the funds, and a second supplemental complaint, dated August 20, 2007, alleging that the respondent had received and deposited the September 4, 2006, check in the amount of $1,488.68 and had failed to remit the funds.

By letter dated August 23, 2007, the Grievance Committee sent the respondent’s counsel a copy of its May 4, 2007, letter; summarized a May 10, 2007, telephone conversation during which counsel was advised that documents and materials previously submitted to the Grievance Committee pertained to a prior investigation; renewed the request for records contained in the Grievance Committee’s May 4, 2007, letter; enclosed a copy of the August 15, 2007, supplemental complaint from Collect America; requested a written answer to the supplemental complaint; advised that an unexcused failure to timely cooperate with the Grievance Committee may be deemed professional misconduct; advised that an unexcused failure to maintain or produce the required bookkeeping records that had been requested may be deemed a violation