Table of 2012 November New York Appellate Division Cases (Already Published-NOT TO BE USED IN LITIGATION)

Table of 2012 November New York Appellate Division Cases (Already Published-NOT TO BE USED IN LITIGATION)

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Case Names       Docket No           Slip Opinion        Body

Amalfitano v Rocco         2012-03451         2012 NY Slip Op 08084    “Decided on November 28, 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.

 

2012-03451

(Index No. 8921/11)

 

 

[*1]Jerry Amalfitano, et al., appellants,

 

v

 

Gennaro P. Rocco, respondent. Steven C. Rauchberg, P.C., New York, N.Y., for appellants.

 

 

 

 

 

Baxter Smith & Shapiro, P.C., Hicksville, N.Y. (Valerie Siragusa

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, Kings County (Bayne, J.), dated March 16, 2012, which denied their motion for summary judgment on the issue of liability.

ORDERED that the order is reversed, on the law, with costs, and the plaintiffs’ motion for summary judgment on the issue of liability is granted.

This appeal arises out of an automobile accident that occurred on November 5, 2010, at an intersection in Brooklyn, when a vehicle operated by the defendant collided with a vehicle operated by the plaintiff Jerry Amalfitano, in which the plaintiff Mary Amalfitano was a passenger. At the time of the accident, the defendant was traveling on a road which was controlled by a stop sign at the subject intersection, while the plaintiffs were traveling on an intersecting road, which was not controlled by any traffic device. In April 2011, the plaintiffs commenced this action to recover damages for personal injuries allegedly sustained as a result of the accident. In an order dated March 16, 2012, the Supreme Court denied the plaintiffs’ motion for summary judgment on the issue of liability.

The plaintiffs established their prima facie entitlement to judgment as a matter of law on the issue of liability by demonstrating that the defendant’s vehicle proceeded into an intersection controlled by a stop sign without yielding the right-of-way to their approaching vehicle (see Vehicle and Traffic Law § 1142[a]). The evidence submitted by the plaintiffs in support of their motion demonstrated that the defendant failed to properly observe and yield to cross traffic before proceeding into the intersection (see Czarnecki v Corso, 81 AD3d 774, 775; Mohammad v Ning, 72 AD3d 913, 914; Bongiovi v Hoffman, 18 AD3d 686, 687).

In opposition, the defendant failed to raise a triable issue of fact. Although the defendant stated in his affidavit that he came to a stop at the stop sign before proceeding into the intersection, the question of whether the defendant stopped at the stop sign is not dispositive, since the evidence established that he failed to yield even if he did stop (see Martin v Ali, 78 AD3d 1135, 1136; Mohammad v Ning, 72 AD3d at 915; Exime v Williams, 45 AD3d 633, 634). The defendant [*2]also indicated that he did not see the plaintiffs’ vehicle until his vehicle was already in the intersection. “”A driver is negligent where an accident occurs because he or she fails to see that which through proper use of [his or her] senses [he or she] should have seen”” (Mohammad v Ning, 72 AD3d at 915 [internal quotation marks omitted]; see Bongiovi v Hoffman, 18 AD3d at 687).

The defendant’s remaining contention is without merit.

Accordingly, the Supreme Court should have granted the plaintiffs’ motion for summary judgment on the issue of liability.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Arias v First Presbyt. Church in Jamaica  2012-04129         2012 NY Slip Op 08085    “Decided on November 28, 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.

 

2012-04129

(Index No. 13338/11)

 

 

[*1]Vanessa Arias, appellant,

 

v

 

First Presbyterian Church in Jamaica, respondent, et al., defendant.

 

 

 

 

 

Linda T. Ziatz, P.C., Forest Hills, N.Y., for appellant.

Brodsky & Peck, Harrison, N.Y. (Beverly T. McGrath of

counsel), for respondent.

 

 

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Grays, J.), entered April 3, 2012, as granted that branch of the motion of the defendant First Presbyterian Church in Jamaica which was, in effect, to vacate its default in appearing or answering and for leave to serve a late answer, and thereupon vacated the determination in its prior order dated February 6, 2012, granting that branch of the plaintiff’s motion which was for leave to enter judgment on the issue of liability against the defendant First Presbyterian Church in Jamaica and setting the matter down for an inquest on the issue of damages at the time of trial.

ORDERED that the order entered April 3, 2012, is reversed insofar as appealed from, on the law, with costs, that branch of the motion of the defendant First Presbyterian Church in Jamaica which was, in effect, to vacate its default in appearing or answering and for leave to serve a late answer is denied, and the determination in the order dated February 6, 2012, is reinstated.

A defendant seeking to vacate a default in appearing or answering must provide a reasonable excuse for the default and demonstrate a potentially meritorious defense to the action (see CPLR 5015[a][1]; Ramirez v Islandia Exec. Plaza, LLC, 92 AD3d 747, 748; Cooney v Cambridge Mgt. & Realty Corp., 35 AD3d 522; Ubaydov v Kenny’s Fleet Maintenance, Inc., 31 AD3d 536; Harcztark v Drive Variety, Inc., 21 AD3d 876). Here, the respondent failed to proffer any excuse for its default in appearing or answering and failed to demonstrate a reasonable excuse for its lengthy delay in moving, inter alia, in effect, to vacate its default (see Garal Wholesalers, Ltd. v Raven Brands, Inc., 82 AD3d 1041, 1042; Bethune v Prioleau, 82 AD3d 810, 810-811; Yao Ping Tang v Grand Estate, LLC, 77 AD3d 822, 823). In view of the absence of a reasonable excuse, it is unnecessary to consider whether the respondent demonstrated a potentially meritorious defense to the action (see Assael v 15 Broad St., LLC, 71 AD3d 802, 803; Segovia v Delcon Constr. Corp., 43 AD3d 1143, 1144; Mjahdi v Maguire, 21 AD3d 1067, 1068). Accordingly, that branch of the respondent’s motion which was, in effect, to vacate its default in appearing or answering and for leave to serve a late answer should have been denied. [*2]

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Caroli v Allstate Ins. Co. 2011-06404         2012 NY Slip Op 08086    “Decided on November 28, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

MARK C. DILLON, J.P.

ANITA R. FLORIO

LEONARD B. AUSTIN

SHERI S. ROMAN, JJ.

 

2011-06404

(Index No. 1661/07)

 

 

[*1]Gabriel Caroli, respondent,

 

v

 

Allstate Insurance Company, appellant.

 

 

 

 

 

Shapiro, Beilly & Aronowitz, LLP, New York, N.Y. (Roy K.

Karlin of counsel), for appellant.

Johnathan Cartelli, Middle Village, N.Y., for respondent.

 

 

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the defendant appeals from an order of the Supreme Court, Queens County (Schulman, J.), entered June 10, 2011, which granted the plaintiff’s motion, in effect, to vacate an oral stipulation of settlement and restore the action to the trial calendar.

ORDERED that the order is reversed, on the law and the facts, with costs, and the plaintiff’s motion, in effect, to vacate the parties’ oral stipulation of settlement and to restore the action to the trial calendar is denied.

The plaintiff owned a vacation property located in Putnam Valley (hereinafter the subject property) that was completely destroyed by a fire on March 11, 2006. The defendant issued a dwelling and personal property protection insurance policy to the plaintiff with respect to the subject property prior to the fire. The plaintiff filed a claim with the defendant. The defendant disclaimed coverage for the loss on the ground that the plaintiff failed to timely submit a signed and sworn proof of loss.

In November 2006 the plaintiff commenced this action against the defendant, inter alia, to recover damages for breach of contract. Issue was joined in February 2007. The plaintiff filed his note of issue on October 8, 2008.

On March 2, 2010, counsel for the plaintiff and counsel for the defendant appeared before the Supreme Court, in the trial scheduling part, for a pretrial conference. Prior to the pretrial conference, counsel for the parties had appeared for a number of pretrial conferences which were adjourned so that the parties could secure consent to a settlement from the Federal Home Loan Mortgage Corporation, commonly referred to as Freddie Mac (hereinafter Freddie Mac), which had a lien against the subject property and any recovery the plaintiff received from this action, in the amount of approximately $140,000.

After an off-the-record conference with the Supreme Court that morning, the case was [*2]called by the clerk of the trial scheduling part. On the record, counsel for the defendant advised the court that “”it is agreed by and between the attorney representing [the plaintiff] and myself that the matter is fully and finally settled for the sum of $10,000. The reason for that figure is to avoid any further costs for litigation.”” In the course of placing the settlement on the record and through the court’s questioning of counsel, the issue of Freddie Mac’s lien and its impediment to the settlement was raised. Counsel for both parties responded to questions by the Supreme Court with respect to the lien. Counsel for the defendant then stated that, “”without either a discharge of the lien and/or a consent to settle, [the parties] remain in limbo.”” The Supreme Court then discharged Freddie Mac’s lien, “”at least as it affects any proceeds or settlement or any money realized from this litigation.”” The case was then marked “”Settled Before Trial”” as of March 2, 2010.

On January 28, 2011, the plaintiff moved, in effect, to vacate the stipulation of settlement and restore the action to the trial calendar. In support of the motion, the plaintiff submitted an affirmation from his attorney, who claimed that the attorney who appeared on behalf of the plaintiff at the March 2, 2010, pretrial conference was a per diem attorney who was engaged only to obtain an adjournment of the pretrial conference pending ongoing discussions with Freddie Mac. The plaintiff’s counsel contended that the plaintiff did not intend to settle the matter at that conference. Moreover, he asserted that any indication to the Supreme Court that the matter was settled did not amount to an enforceable settlement agreement between the parties in open court, since the requirements of CPLR 2104 were not satisfied.

The defendant opposed the motion, challenging the plaintiff’s characterization of the authority of the attorney who represented him at the preconference as limited, since there was no attempt by that counsel to adjourn the trial during the on-the-record stipulation of settlement. The defendant stressed that 22 NYCRR 202.26(e) requires that only counsel with authority to bind a party are permitted to appear at pretrial conferences. It also contended that the plaintiff failed to establish that the settlement agreement should be voided on the basis of fraud, collusion, mistake, or accident.

In the order appealed from, the Supreme Court granted the plaintiff’s motion, in effect, to vacate the stipulation of settlement and restore the action to the trial calendar on the basis that it did not appear that an agreement was reached between the parties, because neither the plaintiff nor a representative of Freddie Mac was present in court, and the per diem attorney “”barely participated in the settlement.”” The defendant appeals.

Oral stipulations entered into in open court by counsel on behalf of their clients are binding (see CPLR 2104; Matter of Serpico, 62 AD3d 887; Matter of Abeido v Abeido, 54 AD3d 330; Racanelli Constr. Co., Inc. v Tadco Constr. Corp., 50 AD3d 875). “”Stipulations of settlement are favored by the courts and not lightly cast aside . . . Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation”” (Hallock v State of New York, 64 NY2d 224, 230 [citations omitted]; see Moshe v Town of Ramapo, 54 AD3d 1030, 1031; Matter of Siegel, 29 AD3d 914).

The defendant correctly contends that the parties placed a valid settlement agreement on the record through their counsel in open court and that the plaintiff failed to submit any evidence to establish that the agreement should be set aside on the basis of fraud, collusion, mistake, or accident (see Popovic v New York City Health & Hosps. Corp., 180 AD2d 493; Deal v Meenan Oil Co., 153 AD2d 665; Muller v City of New York, 113 AD2d 877).

Contrary to the plaintiff’s contention, the material terms of the settlement were addressed on the record (see Diarassouba v Urban, 71 AD3d 51, 56).

Moreover, an agreement was reached between the parties, even though the defendant’s counsel placed the settlement on the record while the plaintiff’s counsel initially remained silent until the Supreme Court started questioning counsel about Freddie Mac’s lien. “”[A] duty to speak generally arises . . . when the settlement is actually placed on the record”” (id. at 59). [*3]Thus, the silence of the plaintiff’s attorney while the defendant’s counsel was advising the Supreme Court that the matter was settled for the sum of $10,000 constituted acceptance.

The plaintiff’s remaining contention is without merit.

Accordingly, the Supreme Court improperly granted the plaintiff’s motion, in effect, to vacate the oral stipulation of settlement and restore the action to the trial calendar.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

County of Suffolk v Long Is. Power Auth.              2010-07528         2012 NY Slip Op 08087    “Decided on November 28, 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.

 

2010-07528

2011-02270

(Index No. 24125/02)

 

 

[*1]County of Suffolk, etc., appellant,

 

v

 

Long Island Power Authority, et al., respondents.

 

 

 

 

 

Leon Friedman, New York, N.Y., and Reilly Like & Tenety,

Babylon, N.Y. (Irving Like of counsel), for appellant (one brief filed).

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

P. Versichelli, and Harris J. Zakarin of

counsel), for respondents.

 

 

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals (1), as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Emerson, J.), dated June 3, 2010, as, in effect, granted that branch of the defendants’ motion which was for a protective order quashing its subpoenas seeking discovery related to certain unpleaded causes of action, and (2) from an order of the same court dated December 22, 2010, which denied its motion for leave to reargue its opposition to that branch of the defendants’ motion which was for a protective order and, in effect, for resettlement of the decretal provisions of the order dated June 3, 2010.

ORDERED that the appeal from the order dated December 22, 2010, is dismissed, as no appeal lies from an order denying resettlement of the substantive or decretal provisions of a prior order or judgment, or from an order denying reargument (see Braun v Edwards Trucking & Warehousing, Inc., 68 AD3d 699, 700; Matter of Kosowski v Kosowski, 61 AD3d 689); and it is further,

ORDERED that the order dated June 3, 2010, is affirmed insofar as appealed from; and it is further,

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

An agreement was executed on January 11, 2000, by the Long Island Power Authority (hereinafter LIPA), Suffolk County, Nassau County, the Town of Brookhaven, the Shoreham-the Wading River Central School District, the Wading River Fire District, and the North Shore Library District (hereinafter the Shoreham Agreement). Pursuant to the Shoreham Agreement, LIPA waived certain claims it had against several Suffolk County taxing jurisdictions for refunds of certain payments made in lieu of taxes. Additionally, LIPA aggregated the remaining obligation owed by these same jurisdictions pursuant to a judgment held by LIPA relating to property tax over-assessments. After the waiver and aggregation, the taxing jurisdictions owed LIPA a refund of [*2]approximately $620 million.

To assist the taxing jurisdictions in funding payment of their settlement obligations, LIPA issued bonds (hereinafter the Tax Settlement Bonds). A surcharge imposed on Suffolk County ratepayers in accordance with the Shoreham Agreement was to be used to pay the debt service, related charges, and obligations incurred in connection with the Tax Settlement Bonds. The amounts received by LIPA pursuant to the Shoreham Agreement were to be used to provide rebates and credits to ratepayers in Suffolk County, Nassau County, and the Rockaways. In addition, LIPA agreed to provide additional credits to ratepayers from its own funds.

To ensure Nassau County’s acquiescence with the Shoreham Agreement, LIPA entered into a separate agreement with Nassau County on January 13, 2000 (hereinafter the Nassau Agreement). Pursuant to the Nassau Agreement, LIPA agreed to give ratepayers in Nassau County and the Rockaways additional rebates totaling $25 million and to provide Nassau County with a grant of approximately $20 million from LIPA’s clean energy fund. Suffolk County was not a party to the Nassau Agreement.

The instant appeals arise from litigation commenced in 2002 by the plaintiff, County of Suffolk, individually and on behalf of the rate payers of the County of Suffolk, following the issuance of the Tax Settlement Bonds pursuant to the Shoreham Agreement. After issuing Tax Settlement Bonds totaling approximately $325 million to assist the taxing jurisdictions with repaying some of their obligations under the settlement, LIPA used a portion of the bond money to pay the various rebates and credits provided for in the Shoreham Agreement. The remaining bond proceeds, totaling $220 million, were invested through a repurchase agreement and earned interest money. That interest money was used by LIPA to pay a significant portion of the additional $25 million in rebates owed to the Nassau County and Rockaways ratepayers under the Nassau Agreement.

After the defendants joined issue in this action, the parties commenced discovery. In 2008, following disclosure of more than 11,000 documents by the defendants, the plaintiff served an amended complaint based upon audits of the disclosed documents. The defendants served an answer in response to the amended complaint. The plaintiff made requests for additional discovery to support unpleaded claims, issuing subpoenas for depositions from nonparty witnesses. In particular, the plaintiff sought evidence to support its claim that LIPA’s use of the interest money earned from the invested Tax Settlement Bonds proceeds to pay a substantial portion of additional rebates owed to Nassau County and Rockaways ratepayers pursuant to the Nassau Agreement constituted a breach of the Shoreham Agreement. The plaintiff further contended, inter alia, that LIPA made misrepresentations with respect to the intended use of the proceeds from the sale of the Tax Settlement Bonds. The defendants moved, inter alia, to quash the subpoenas, solely on the ground that the unpleaded claims were without merit. The Supreme Court, inter alia, in effect, granted that branch of the defendants’ motion, and the plaintiff appeals.

CPLR 3101(a) provides that “”[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.”” Nevertheless, unlimited disclosure is not mandated, and the rules provide that the court may issue a protective order “”denying, limiting, conditioning or regulating the use of any disclosure device”” to “”prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts”” (CPLR 3103[a]; see Accent Collections, Inc. v Cappelli Enters., Inc., 84 AD3d 1283; Spohn-Konen v Town of Brookhaven, 74 AD3d 1049; Palermo Mason Constr. v Aark Holding Corp., 300 AD2d 460, 461). “”Generally, the supervision of disclosure is left to the broad discretion of the trial court, which must balance the parties’ competing interests”” (Accent Collections, Inc. v Cappelli Enters. Inc., 84 AD3d at 1283; see Kooper v Kooper, 74 AD3d 6, 17; Palermo Mason Constr. v Aark Holding Corp., 300 AD2d at 461).

Here, the plaintiff sought additional evidence, inter alia, related to an unpleaded breach of contract cause of action. “” The fundamental, neutral precept of contract interpretation is that agreements are construed in accord with the parties’ intent'”” (Maser Consulting, P.A. v Viola Park Realty, LLC, 91 AD3d 836, 836, quoting Greenfield v Philles Records, 98 NY2d 562, 569; [*3]see Dysal, Inc. v Hub Props. Trust, 92 AD3d 826, 827; Staples the Off. Superstore E., Inc. v Flushing Town Ctr. III, L.P., 90 AD3d 638, 639). The best evidence of the parties’ intent is their own writing. “”Thus, 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 at 569; see Albert Jacobs, LLP v Parker, 94 AD3d 919; Scotto v Georgoulis, 89 AD3d 717, 718-719; Ross v Sherman, 57 AD3d 758). The threshold question of whether a contract is unambiguous, and the subsequent construction and interpretation of a contract determined to be unambiguous, are issues of law within the province of the court (see W.W.W. Assocs. v Giancontieri, 77 NY2d 157, 163; Maser Consulting, P.A. v Viola Park Realty, LLC, 91 AD3d at 837; Franklin Apt. Assoc., Inc. v Westbrook Tenants Corp., 43 AD3d 860, 861). Where the language of the contract “”was written so imperfectly that it is susceptible to more than one reasonable interpretation,”” it will be considered ambiguous (Brad H. v City of New York, 17 NY3d 180, 186). Extrinsic evidence of the parties’ intent may not be admitted to create ambiguity in a contract that is unambiguous on its face (see Brad H. v City of New York, 17 NY3d at 185-186; W.W.W. Assocs. v Giancontieri, 77 NY2d at 163; Scotto v Georgoulis, 89 AD3d at 718).

The plaintiff contends that the Nassau Agreement is not extrinsic evidence. Rather, the plaintiff asserts that the Nassau Agreement must be considered when interpreting the Shoreham Agreement because the two contracts are part of the same transaction. “”Generally, the rule is that separate contracts relating to the same subject matter and executed simultaneously by the same parties may be construed as one agreement”” (Williams v Mobil Oil Corp., 83 AD2d 434, 439; see Nau v Vulcan Rail & Constr. Co., 286 NY 188, 197; Davimos v Halle, 60 AD3d 576; Liberty Natl. Bank v Gross, 201 AD2d 467, 468). However, “”[c]ontracts remain separate unless their history and subject matter show them to be unified”” (131 Heartland Blvd. Corp. v C.J. Jon Corp., 82 AD3d 1188, 1190). To determine whether contracts are separable or entire, “” the primary standard is the intent manifested, viewed in the surrounding circumstances'”” (G.K. Alan Assoc. Inc. v Lazzari, 66 AD3d 830, 833, quoting Williams v Mobil Oil Corp., 83 AD2d at 439 [citations omitted]; see 131 Heartland Blvd. Corp. v C.J. Jon Corp., 82 AD3d at 1190; Davimos v Halle, 60 AD3d at 576).

Here, only LIPA and Nassau County executed the Nassau Agreement, while the Shoreham Agreement was executed by LIPA, Suffolk County, Nassau County, the Town of Brookhaven, the Shoreham-Wading River Central School District, the Wading River Fire District, and the North Shore Library District. Although the two agreements addressed similar subject matter, they manifested separate intentions related to the interests of the specific parties involved. Accordingly, the Supreme Court properly determined that the Nassau Agreement was a contract independent of the Shoreham Agreement and, thus, was extrinsic evidence.

A review of the Shoreham Agreement reveals that it is “”complete, clear and unambiguous on its face”” and, thus, it must be enforced according to the plain meaning of its terms (Greenfield v Philles Records, 98 NY2d at 569; see Albert Jacobs, LLP v Parker, 94 AD3d 919; Scotto v Georgoulis, 89 AD3d at 718-719; Ross v Sherman, 57 AD3d at 758). Pursuant to its terms, “”[t]he proceeds of any Tax Settlement Bonds shall be invested by [LIPA] and any earnings therefrom shall be applied, at [LIPA’s] discretion.”” Consequently, LIPA was authorized to utilize the investment earnings from the Tax Settlement Bonds to settle its obligations under the Nassau Agreement.

With respect to the plaintiff’s unpleaded cause of action alleging fraud, the plaintiff contends that the defendants misrepresented the intended use of the proceeds from the sale of the Tax Settlement Bonds. The relevant documents the defendants prepared in conjunction with the bond sale set forth that, in addition to funding the rebates and credits due under the Shoreham Agreement, some proceeds would be used to fund the additional rebates and grant money owed to Nassau County and Rockaways ratepayers pursuant to the Nassau Agreement. However, the total principal proceeds obtained from the initial sale of the Tax Settlement Bonds were insufficient to cover the total costs of rebates and grant money due under the Nassau Agreement. Thus, the plaintiff contends that the documents prepared by the defendants misrepresented how these proceeds would be used. [*4]

To properly plead a cause of action to recover damages for common-law fraud, a plaintiff must allege “”a material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff and damages”” (Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 559; see New York Univ. v Continental Ins. Co., 87 NY2d 308, 318; Pace v Raisman & Assoc., Esqs., LLP, 95 AD3d 1185, 1188-1189; Orchid Constr. Corp. v Gottbetter, 89 AD3d 708, 710-711). Here, there is no evidence that the plaintiff relied upon the alleged misrepresentations or suffered any harm as a result, both necessary elements of a fraud cause of action (see Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d at 559; New York Univ. v Continental Ins. Co., 87 NY2d at 318; Pace v Taisman & Assoc. Esqs., LLP, 95 AD3d at 1188-1189; Orchid Constr. Corp. v Gottbetter, 89 AD3d at 710-711). Significantly, the plaintiff was not a purchaser of any Tax Settlement Bonds, and the documents relating to the sale of the Tax Settlement Bonds were not part of the Shoreham Agreement. Thus, the plaintiff had no reason to rely upon any documents relating to the sale of Tax Settlement Bonds and it did not suffer any harm from misrepresentations contained therein (see Nettles v LSG Sky Chefs, 94 AD3d 726, 731-732; JAF Partners, Inc. v Rondout Sav. Bank, 72 AD3d 898; Apollo H.V.A.C. Corp. v Halpern Constr., Inc., 55 AD3d 855, 857).

Since the plaintiff’s unpleaded causes of action were without merit, it was not entitled to additional discovery related to these causes of action.

The plaintiff’s remaining contentions are without merit.

Accordingly, the Supreme Court properly, in effect, granted that branch of the defendants’ motion which was for a protective order quashing the plaintiff’s subpoenas, so as to “”prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts”” (CPLR 3103[a]; see Accent Collections, Inc. v Cappelli Enters., Inc., 84 AD3d at 1283; Spohn-Konen v Town of Brookhaven, 74 AD3d at 1049; Palermo Mason Constr. v Aark Holding Corp., 300 AD2d at 461).

ENG, P.J., FLORIO, SGROI and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Daley v Pelzer    2012-00309         2012 NY Slip Op 08088    “Decided on November 28, 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.

 

2012-00309

(Index No. 16965/09)

 

 

[*1]Jennifer Daley, plaintiff,

 

v

 

Michelle D. Pelzer, et al., defendants third-party plaintiffs-respondents; Defamien A. Boko, third-party defendant-respondent-appellant; John Lewis, third-party defendant-appellant-respondent.

 

 

 

 

 

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

[Marshall D. Sweetbaum], of counsel), for third-party defendant-

appellant-respondent.

Andrea G. Sawyers, Melville, N.Y. (Scott W. Driver of

counsel), for third-party defendant-

respondent-appellant.

Mendolia and Stenz, Westbury, N.Y. (Jonathan Ivezaj of

counsel), for defendants third-party

plaintiffs-respondents.

 

 

DECISION & ORDER

In an action to recover damages for personal injuries, the third-party defendant John Lewis appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Lane, J.), entered November 22, 2011, as denied his cross motion for summary judgment dismissing the third-party complaint and all cross claims insofar as asserted against him, and the third-party defendant Defamien A. Boko cross-appeals, as limited by his brief, from so much of the same order as denied his motion for summary judgment dismissing the third-party complaint and all cross claims insofar as asserted against him.

ORDERED that the order is reversed insofar as appealed and cross-appealed from, on the law, with one bill of costs payable by the defendants third-party plaintiffs, the cross motion of the third-party defendant John Lewis for summary judgment dismissing the third-party complaint and all cross claims insofar as asserted against him is granted, and the motion of the third-party defendant Defamien A. Boko for summary judgment dismissing the third-party complaint and all cross claims insofar as asserted against him is granted.

This case stems from an accident involving four motor vehicles. According to the deposition testimony of the third-party defendant Defamien A. Boko, his vehicle experienced mechanical failure and came to a stop in the roadway. About five minutes later, Boko’s vehicle allegedly was hit in the rear by a vehicle operated by the third-party defendant John Lewis. According to Lewis’s deposition testimony, he saw the stopped Boko vehicle for the first time when the vehicle traveling in front of him made a sudden lane change. About three minutes after Lewis’s vehicle hit the rear of Boko’s vehicle, Lewis felt two impacts to the rear of his vehicle, and Boko felt two additional impacts to the rear of his vehicle. Each impact caused Lewis’s vehicle to move [*2]forward and strike the rear of Boko’s vehicle. According to the plaintiff’s deposition testimony, she saw the stopped Lewis vehicle behind the stopped Boko vehicle and brought her vehicle to a stop behind the Lewis vehicle without striking it. A few seconds later, a vehicle owned by the defendant third-party plaintiff Michelle D. Pelzer and operated by the defendant third-party plaintiff Earnest H. Pelzer hit the plaintiff’s vehicle, causing it to strike Lewis’s vehicle in the rear. Earnest H. Pelzer testified at his deposition that he was driving his vehicle directly behind the plaintiff’s vehicle when the plaintiff’s vehicle switched lanes, inexplicably returned to his lane of travel, and then slammed on the brakes. He provided equivocal testimony as to whether the plaintiff’s vehicle was stopped when he hit it.

The Supreme Court should have granted the separate motions of Boko and Lewis for summary judgment dismissing the third-party complaint and all cross claims insofar as asserted against them. They each established their entitlement to judgment as a matter of law by demonstrating that any negligence on their part in causing their vehicles to be stopped in the roadway was not a proximate cause of the subsequent collision involving the plaintiff’s vehicle and the defendants third-party plaintiffs’ vehicle (see Sheehan v City of New York, 40 NY2d 496; Cuccio v Ciotkosz, 43 AD3d 850; Haylett v New York City Tr. Auth., 251 AD2d 373; Dunlap v City of New York, 186 AD2d 782). In opposition, the defendants third-party plaintiffs failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320).

The defendants third-party plaintiffs’ contention that Boko violated Vehicle and Traffic Law § 1202(a)(1)(j) is not properly before this Court, as it was raised for the first time on appeal (see Kennedy v Arif, 82 AD3d 1050).

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Delijani v Delijani              2011-03099         2012 NY Slip Op 08089    “Decided on November 28, 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.

 

2011-03099

2011-03982

2011-09510

2011-09511

2011-09512

(Index No. 4785/99)

 

 

[*1]Morgan Delijani, plaintiff-respondent,

 

v

 

Parham Delijani, appellant; Robert G. Smith, nonparty- respondent.

 

 

 

 

 

Jan Ira Gellis, P.C., New York, N.Y., for appellant.

Anthony A. Capetola, Williston Park, N.Y. (Robert P. Johnson

and Michele R. Olsen of counsel), for

plaintiff-respondent.

Robert G. Smith, New York, N.Y., nonparty-respondent pro se.

 

 

DECISION & ORDER

In a matrimonial action in which the parties were divorced by judgment entered December 4, 2003, the defendant former husband appeals (1), as limited by his notice of appeal and brief, from stated portions of an order of the Supreme Court, Nassau County (Maron, J.), dated February 24, 2011, as amended by an order of the same court dated February 28, 2011, which, after a hearing, inter alia, granted that branch of the plaintiff former wife’s motion which was for reimbursement of lodging expenses in the sum of $10,752.57 and her application for an award of counsel fees in the sum of $168,880.54, (2) from an order of the same court entered March 9, 2011, which, upon the granting of that branch of the plaintiff’s motion which was to allocate to the defendant 100% of the fees of the attorney for the children, directed him to pay such fees of the attorney for the children in the sum of $7,625, (3) from a money judgment of the same court dated May 5, 2011, which, upon the order dated February 24, 2011, as amended, is in favor of the plaintiff’s counsel and against him in the principal sum of $150,000, (4) from a money judgment of the same court also dated May 5, 2011, which, upon the order dated February 24, 2011, as amended, is in favor of the plaintiff and against him in the principal sum of $10,752.57, and (5) from a money judgment of the same court entered June 20, 2011, which, upon the order dated February 24, 2011, as amended, is in favor of the plaintiff’s former counsel, Robert G. Smith, and against him in the principal sum of $18,880.54.

ORDERED that the appeal from so much of the order dated February 24, 2011, as amended, as, after a hearing, granted that branch of the plaintiff’s motion which was for reimbursement of lodging expenses in the sum of $10,752.57 and her application for an award of counsel fees in the sum of $168,880.54 is dismissed; and it is further, [*2]

ORDERED that the appeal from the second money judgment dated May 5, 2011, is dismissed as abandoned; and it is further,

ORDERED that the order dated February 24, 2011, as amended, is affirmed insofar as reviewed; and it is further,

ORDERED that the order entered March 9, 2011, is affirmed; and it is further,

ORDERED that the first money judgment dated May 5, 2011, and the money judgment entered June 20, 2011, are affirmed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff and the nonparty-respondent, payable by the defendant.

The appeal from so much of the order dated February 24, 2011, as amended by an order of the same court dated February 28, 2011, as, after a hearing, granted that branch of the plaintiff former wife’s motion which was for reimbursement of lodging expenses in the sum of $10,752.57 and her application for an award of counsel fees in the sum of $168,880.54 must be dismissed, as those portions of the order were superseded by the first money judgment dated May 5, 2011, the second money judgment dated May 5, 2011, and the money judgment entered June 20, 2011 (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from those portions of the order are brought up for review and have been considered on the appeals from the money judgments (see CPLR 5501[a][1]).

Since the defendant former husband raises no argument in his briefs with respect to his appeal from the second money judgment dated May 5, 2011, which is in favor of the plaintiff and against him in the principal sum of $10,752.57, the appeal from that money judgment must be dismissed as abandoned (see Seaway Capital Corp. v 500 Sterling Realty Corp., 94 AD3d 856, 857; Lutwin v Perelman, 76 AD3d 958, 961; Chu v Pan, 72 AD3d 866, 868).

The defendant did not object to the submission of applications for counsel fees on papers, and failed to request a hearing on the issue. Accordingly, he waived his right to a hearing on the plaintiff’s request for an award of counsel fees (see Bogannam v Bogannam, 60 AD3d 985, 987; Schwartz v Schwartz, 54 AD3d 400, 403; Messinger v Messinger, 24 AD3d 631, 632; Sieratzki v Sieratzki, 8 AD3d 552, 554-555). To the extent the defendant further challenges the award of counsel fees to the plaintiff former wife, such contentions are raised by the defendant for the first time on appeal and, therefore, not properly before the Court.

The defendant’s remaining contentions are without merit.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Ducasse v D’Alonzo         2011-09221         2012 NY Slip Op 08090    “Decided on November 28, 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.

 

2011-09221

(Index No. 21038/10)

 

 

[*1]Bertha Ducasse, appellant,

 

v

 

Dominick D’Alonzo, et al., respondents.

 

 

 

 

 

Rosenberg Calica & Birney LLP, Garden City, N.Y. (Ronald J.

Rosenberg and Lesley A. Reardon of counsel), for appellant.

Joseph J. Sciacca, Port Washington, N.Y., for respondents.

 

 

DECISION & ORDER

In an action, inter alia, for a judgment declaring that the plaintiff has a prescriptive easement over certain real property consisting of a driveway adjacent to the plaintiff’s real property and for injunctive relief, the plaintiff appeals from an order of the Supreme Court, Nassau County (Brandveen, J.), entered September 16, 2011, which denied those branches of her motion which were for summary judgment declaring that she has a prescriptive easement over the subject real property and permanently enjoining the defendants from interfering with the alleged easement, or in the alternative, to preliminarily enjoin the defendants from interfering with the alleged easement.

ORDERED that the appeal from so much of the order as denied that branch of the plaintiff’s motion which was to preliminarily enjoin the defendants from interfering with the alleged easement is dismissed as academic in light of our determination on the appeal from the remainder of the order; and it is further,

ORDERED that the order is reversed insofar as reviewed, on the law, those branches of the plaintiff’s motion which were for summary judgment declaring that she has a prescriptive easement over the subject real property and permanently enjoining the defendants from interfering with the easement are granted, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment, inter alia, declaring that the plaintiff has a prescriptive easement over the subject real property and permanently enjoining the defendants from interfering with that easement; and it is further,

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

An easement by prescription is demonstrated by proof of the adverse, open and notorious, and continuous use of the subject property for the prescriptive period (see 315 Main St. Poughkeepsie, LLC v WA 319 Main, LLC, 62 AD3d 690, 691; J.C. Tarr, Q.P.R.T. v Delsener, 19 AD3d 548; see also RPAPL 501, CPLR 212; Almeida v Wells, 74 AD3d 1256, 1259; Red Wing Props., Inc. v Grosshandler, 74 AD3d 1309). Generally, where the plaintiff demonstrates, by clear and convincing evidence, the open and notorious, continuous, and undisputed use of the subject [*2]property, it is presumed that the use was adverse, and the burden shifts to the opponent of the alleged prescriptive easement to show that the use was permissive (315 Main St. Poughkeepsie, LLC v WA 319 Main, LLC, 62 AD3d at 691).

Here, the plaintiff, through the submission of affidavits and photographs, established that her use of the portion of the driveway adjacent to her house and her detached garage, in order to gain access to her garage and for parking, was open and notorious, continuous, and undisputed from from 1955 through the end of the prescriptive period (see Meyers v Carey, 75 AD3d 949; Coverdale v Zucker, 261 AD2d 429; see also Almeida v Wells, 74 AD3d at 1259). In opposition, the defendants did not dispute that the plaintiff used that portion of the driveway during that time period, and failed to raise a triable issue of fact as to whether the plaintiff’s use of the driveway was permissive during the prescriptive period (see Dermody v Tilton, 85 AD3d 1682, 1683; Klumpp v Freund, 83 AD3d 790, 793; Meyers v Carey, 75 AD3d at 949; Kessinger v Sharpe, 71 AD3d 1377, 1378).

Since this is, in part, a declaratory judgment action, the matter must be remitted to the Supreme Court, Nassau County, for the entry of a judgment, inter alia, declaring that the plaintiff has a prescriptive easement over the subject real property (see Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901). The judgment should also permanently enjoin the defendants from interfering with that easement.

ENG, P.J., FLORIO, SGROI and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Femia v Graphic Arts Mut. Ins. Co.           2011-02549         2012 NY Slip Op 08091    “Decided on November 28, 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.

 

2011-02549

(Index No. 3069/06)

 

 

[*1]Sandro Femia, plaintiff-respondent,

 

v

 

Graphic Arts Mutual Insurance Co., defendant-respondent, et al., defendant, Dayton & Osborne, LLC, appellant.

 

 

 

 

 

Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains,

N.Y. (Nancy Quinn Koba and Alice Leslie Brodie of counsel), for

appellant.

Weg & Myers, P.C., New York, N.Y. (Joshua L. Mallin and

Rebecca A. Barrett of counsel), for

plaintiff-respondent.

Faust Goetz Schenker & Blee LLP, New York, N.Y.

(Christopher B. Kinzel of counsel), for

defendant-respondent.

 

 

DECISION & ORDER

In an action, inter alia, to recover damages for breach of an insurance contract, the defendant Dayton & Osborne, LLC, appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Spinner, J.), dated December 30, 2010, as denied its motion for summary judgment dismissing the fourth and fifth causes of action and the cross claims of the defendant Graphic Arts Mutual Insurance Co., insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs payable by the respondents, and the motion of the defendant Dayton & Osborne, LLC, for summary judgment dismissing the fourth and fifth causes of action and the cross claims of the defendant Graphic Arts Mutual Insurance Co., insofar as asserted against it is granted.

The Supreme Court improperly declined to consider the deposition transcripts submitted by the defendant Dayton & Osborne, LLC (hereinafter Dayton), in support of its motion for summary judgment where the transcripts were certified by the reporter and their accuracy was not challenged (see Pevzner v 1397 E. 2nd, LLC, 96 AD3d 921; Boadu v City of New York, 95 AD3d 918; Zalot v Zieba, 81 AD3d 935; see also Rodriguez v Ryder Truck, Inc., 91 AD3d 935, 936; Ashif v Won Ok Lee, 57 AD3d 700).

“”Generally, the law is reasonably settled on initial principles that insurance agents have a common-law duty to obtain requested coverage for their clients within a reasonable time or inform the client of the inability to do so”” (Murphy v Kuhn, 90 NY2d 266, 270; see Core-Mark Intl. v Swett & Crawford Inc., 71 AD3d 1072; Reilly v Progressive Ins. Co., 288 AD2d 365; Chaim v Benedict, 216 AD2d 347; Erwig v Cook Agency, 173 AD2d 439). In order for a broker to be held liable under theories of breach of contract or negligence for failing to procure insurance, a plaintiff must demonstrate that the broker failed to discharge the duties imposed by the agreement to obtain insurance, either by proof that it breached the agreement or because it failed to exercise due care in the transaction (see Bedessee Imports, Inc. v Cook, Hall & Hyde, Inc., 45 AD3d 792; Katz v Tower [*2]Ins. Co. of N.Y., 34 AD3d 432; Mickey’s Rides-N-More, Inc. v Anthony Viscuso Brokerage, Inc., 17 AD3d 328; Structural Bldg. Prods. Corp. v Business Ins. Agency, 281 AD2d 617).

Here, Dayton demonstrated its prima facie entitlement to judgment as a matter of law dismissing the fourth and fifth causes of action to recover damages for negligence and breach of contract, respectively, insofar as asserted against it by submitting evidence showing that it procured the specific insurance coverage requested by the plaintiff (see Loevner v Sullivan & Strauss Agency, Inc., 35 AD3d 392). Moreover, the record is devoid of evidence of a special relationship between Dayton and the plaintiff that would give rise to a continuing duty on Dayton’s part to advise the plaintiff to obtain additional coverage (see Murphy v Kuhn, 90 NY2d at 271; Loevner v Sullivan & Strauss Agency, Inc., 35 AD3d at 394-395; W. Joseph McPhillips, Inc. v Ellis, 8 AD3d 782). In opposition, the plaintiff failed to raise a triable issue of fact. Therefore, the Supreme Court should have granted that branch of Dayton’s motion which was for summary judgment dismissing the fourth and fifth causes of action insofar as asserted against it.

Further, Dayton established, prima facie, its entitlement to judgment as a matter of law dismissing the cross claims of the defendant Graphic Arts Mutual Insurance Co. (hereinafter Graphic Arts) for contractual and common-law indemnification insofar as asserted against it. In opposition to Dayton’s prima facie showing, Graphic Arts failed to raise a triable issue of fact as to whether Dayton violated its duty to report truthfully with respect to information requested on the application for insurance (see Equitable Life Assur. Socy. of U.S. v Werner, 286 AD2d 632; Anne M.Payne & Joseph Wilson, New York Insurance Law § 6:43 at 254 [2011-2012 ed. West’s NY Prac Series]), or whether Graphic Arts itself was without fault in causing the plaintiff’s loss (see Bedessee Imports, Inc. v Cook, Hall & Hyde, Inc., 45 AD3d 792; cf. General Acc. Ins. Co. v Smith & Assoc., 184 AD2d 616, 617). Therefore, the Supreme Court should have granted that branch of Dayton’s motion which was for summary judgment dismissing the cross claims of Graphic Arts insofar as asserted against it.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

“Flushing Unique Homes, LLC v Brooklyn Fed. Sav. Bank”              2010-09775         2012 NY Slip Op 08092    “Decided on November 28, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

PETER B. SKELOS, J.P.

JOHN M. LEVENTHAL

PLUMMER E. LOTT

ROBERT J. MILLER, JJ.

 

2010-09775

(Index No. 15639/08)

 

 

[*1]Flushing Unique Homes, LLC, appellant,

 

v

 

Brooklyn Federal Savings Bank, respondent, et al., defendant. Sol Mermelstein, Brooklyn, N.Y. (Kalmon Glovin of counsel), for appellant.

 

 

 

 

 

Kriss & Feuerstein LLP, New York, N.Y. (Jerold C. Feuerstein,

David Kriss, and Jennifer A. Tolston of counsel), for respondent.

 

 

DECISION & ORDER

In an action to recover damages for breach of contract, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Knipel, J.), dated September 3, 2010, as granted that branch of the motion of the defendant Brooklyn Federal Savings Bank which was for summary judgment dismissing the complaint insofar as asserted against that defendant, and denied that branch of its cross motion which was for summary judgment on the issue of liability against the defendant Brooklyn Federal Savings Bank.

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

On July 28, 2004, the plaintiff obtained a building loan from the defendant Brooklyn Federal Savings Bank (hereinafter the Bank), with a maturity date of February 1, 2006. The building loan note (hereinafter the note) gave the plaintiff the option to extend the term of the loan for six months, provided that the plaintiff was not in default under the terms of the note or other loan documents, and that certain other conditions were met.

In November 2005, the plaintiff purported to exercise the option to extend the term of the loan for six months. The plaintiff’s February 2006 monthly payment was accepted by the Bank. Loan statements from the Bank for February and March 2006 did not request payment of the outstanding balance, and they indicated that the maturity date of the loan was August 1, 2006.

In April 2006, the plaintiff’s March 2006 payment check was returned by the Bank, which informed the plaintiff that the loan had been assigned to the defendant Madison 118, LLC (hereinafter Madison), in March 2006. Madison then informed the plaintiff that it was exercising its right to prohibit any further extension of the loan maturity date and that it was requiring immediate payment of the outstanding balance of the loan. The plaintiff thereafter obtained refinancing to pay off the outstanding balance of the loan.

The plaintiff commenced this action against the Bank and Madison to recover [*2]damages for breach of contract, alleging, inter alia, that the loan was wrongfully accelerated since the plaintiff had validly exercised its option to extend the term of the loan. The Bank moved, among other things, for summary judgment dismissing the complaint insofar as asserted against it. The plaintiff cross-moved, inter alia, for summary judgment on the issue of liability against the Bank. The Supreme Court, among other things, granted that branch of the Bank’s motion which was for summary judgment dismissing the complaint insofar as asserted against it, and denied that branch of the plaintiff’s cross motion which was for summary judgment on the issue of liability against the Bank.

The Bank established its entitlement to judgment as a matter of law by demonstrating, prima facie, that the maturity date of the loan was not extended because the plaintiff failed to comply with the conditions contained in the note when it purported to exercise its option to extend the term of the loan (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 112). Contrary to the plaintiff’s contention, its submissions in response to the Bank’s prima facie showing were insufficient to raise a triable issue of fact as to whether the plaintiff validly exercised its option to extend the term of the loan by complying with the conditions contained in the note (see Miranda v Jay Constr. Corp., 2 AD3d 420, 420).

Furthermore, the note contained a “”no waiver”” clause which provided that “”[n]either the exercise of any provision hereof nor the delay in asserting any right granted to [the Bank] . . . shall be construed as a waiver by [the Bank] of the right to accelerate the indebtedness . . . or to pursue any other remedies available under this Note,”” and that “”[a]ny waiver hereunder shall be valid and enforceable only if in writing and signed by the party against whom enforcement is sought.”” Under the circumstances of this case, the plaintiff failed to raise a triable issue of fact as to whether the Bank’s delay in enforcing the terms of the note, or its issuance of the consequent monthly statements after the maturity date, constituted a waiver of the Bank’s right to require payment of the outstanding balance (see IG Second Generation Partners, LP v Kaygreen Realty Co., 22 AD3d 463, 465; Town of Hempstead v Incorporated Vil. of Freeport, 15 AD3d 567, 569; First Union Mtge. Corp. v Fern, 298 AD2d 490, 491; see also Griswold Special Care of N.Y., Inc. v Executive Nurses Home Care, Inc., 66 AD3d 962, 963; BDG Oceanside, LLC v RAD Term. Corp., 14 AD3d 472, 473-474).

The plaintiff also failed to raise a triable issue of fact as to whether the Bank should be estopped from enforcing the terms of the note. “”To establish an estoppel, a party must prove that it relied upon another’s actions, its reliance was justifiable, and that, in consequence of such reliance, it prejudicially changed its position”” (Town of Hempstead v Incorporated Vil. of Freeport, 15 AD3d at 570; see Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175). However, the “”conduct relied upon to establish estoppel must not otherwise be compatible with the agreement as written”” (Rose v Spa Realty Assoc., 42 NY2d 338, 344). Since the Bank’s delay in enforcing the terms of the note and its issuance of the consequent monthly statements after the maturity date were compatible with the terms of the note, the plaintiff failed to raise a triable issue of fact as to whether it justifiably relied upon such conduct to its detriment (see Town of Hempstead v. Incorporated Vil. of Freeport, 15 AD3d at 569; see also Purcell v Commonwealth Land Tit. Ins. Co., 19 AD3d 469, 470).

For the same reasons, that branch of the plaintiff’s cross motion which was for summary judgment on the issue of liability against the Bank was properly denied.

In light of the foregoing, the parties’ remaining contentions need not be addressed.

SKELOS, J.P., LEVENTHAL, LOTT and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

“Fulton v Marathon Dental Servs., P.C.”                2011-07945         2012 NY Slip Op 08093    “Decided on November 28, 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.

 

2011-07945

2011-07961

(Index No. 27101/03)

 

 

[*1]Timothy L. Fulton, appellant,

 

v

 

Marathon Dental Services, P.C., et al., defendants, Bill B. Akpinar, etc., respondent.

 

 

 

 

 

Lutfy & Santora, Staten Island, N.Y. (James L. Lutfy of counsel),

for appellant.

Jones, Hirsch, Connors, Miller & Bull, P.C., New York, N.Y.

(Michael P. Kelly of counsel), for

respondent.

 

 

DECISION & ORDER

In an action to recover damages for dental malpractice, the plaintiff appeals from (1) an order of the Supreme Court, Queens County (O’Donoghue, J.), dated May 20, 2011, which granted that branch of the motion of the defendant Bill B. Akpinar which was pursuant to CPLR 3404 to dismiss the complaint as abandoned and denied his cross motion for further disclosure, and (2) an order of the same court, also dated May 20, 2011, which granted the motion of the defendant Bill B. Akpinar to quash a subpoena served upon a nonparty witness and for a protective order against further discovery.

ORDERED that the orders are affirmed, with one bill of costs.

In this dental malpractice action, the plaintiff filed his note of issue and certificate of readiness in January 2005. On November 7, 2005, the action was stricken from the calendar, but the note of issue was not vacated. Although the plaintiff was granted an extension of time to restore the case to the calendar upon the resolution of an appeal from a prior order, and although that appeal was resolved in February 2007, the plaintiff failed to take any further steps to restore the case to the calendar. In fact, the plaintiff undertook little or no action to prosecute the case during the ensuing four years until the respondent moved, inter alia, to dismiss the complaint as abandoned.

In opposition to the respondent’s motion, the plaintiff failed to demonstrate a potentially meritorious cause of action, a reasonable excuse for the delay in prosecuting the action, a lack of intent to abandon the action, and a lack of prejudice to the respondent (see Botsas v Grossman, 51 AD3d 617; see also Vidal v Ricciardi, 81 AD3d 635; Nasuro v PI Assoc., LLC, 78 AD3d 1030; Mooney v City of New York, 78 AD3d 795; Leinas v Long Is. Jewish Med. Ctr., 72 AD3d 905; Basetti v Nour, 287 AD2d 126, 131). The plaintiff failed to demonstrate that he had a potentially meritorious cause of action by the submission of an expert’s affidavit (see Williams v D’Angelo, 24 AD3d 538; Yousian v New York Med. Ctr., Hosp. of Queens, 277 AD2d 449), failed to present a reasonable excuse for the delay in prosecuting the case, and failed to rebut the [*2]presumption of abandonment (see Sang Seok Na v Greyhound Lines, Inc., 88 AD3d 980; LaMarca v Scotto Bros. Woodbury Rest. Inc., 87 AD3d 984; Gajek v Hampton Bays Volunteer Ambulance Corps., Inc., 77 AD3d 885; Castillo v City of New York, 6 AD3d 568). In addition, since nearly eight years had passed between the date of the alleged last dental treatment and the date of the respondent’s motion to dismiss the complaint, the respondent would be prejudiced if the action were restored to the trial calendar at this late date (see Agli v O’Connor, 92 AD3d 815; Sang Seok Na v Greyhound Lines, Inc., 88 AD3d at 980; Gajek v Hampton Bays Volunteer Ambulance Corps., Inc., 77 AD3d at 885; Kalyuskin v Rudisel, 306 AD2d 246; McCarthy v Bagner, 271 AD2d 509).

Accordingly, the Supreme Court properly granted that branch of the respondent’s motion which was to dismiss the complaint as abandoned.

In light of our determination, we need not reach the plaintiff’s remaining contentions.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

“General Motor & Truck Repair, Inc. v HOP Energy, LLC”                2011-01930         2012 NY Slip Op 08094    “Decided on November 28, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

RUTH C. BALKIN, J.P.

JOHN M. LEVENTHAL

L. PRISCILLA HALL

JEFFREY A. COHEN, JJ.

 

2011-01930

(Index No. 18175/10)

 

 

[*1]General Motor and Truck Repair, Inc., et al., appellants,

 

v

 

HOP Energy, LLC, et al., respondents.

 

 

 

 

 

William V. DeCandido, P.C., Forest Hills, N.Y., for appellants.

Levett Rockwood, P.C., New York, N.Y. (Robert Laplaca of

counsel), and Siegle & Sims, LLP,

New York, N.Y. (Eric Siegle of

counsel), for respondent HOP Energy, LLC

(one brief filed).

Davidoff Malito & Hutcher, LLP, Garden City, N.Y. (Mark E.

Spund of counsel), for respondent

Century Petroleum, Ltd.

Norton & Associates, LLC, New York, N.Y. (Michael E.

Norton of counsel), for respondent Metro

Terminals Corp.

Anthony P. DiCaprio, Rye, N.Y., for respondent Clean Fleet

Fueling Corp.

Renda & Associates, P.C., Brooklyn, N.Y. (Sigismondo F.

Renda of counsel), for Chief Energy

Corp. (no brief filed).

 

 

DECISION & ORDER

In an action, inter alia, to recover damages for unfair competition and tortious interference with business relations, and for declaratory and injunctive relief, the plaintiffs appeal from an order of the Supreme Court, Queens County (Strauss, J.), dated January 18, 2011, which denied their motion, in effect, for summary judgment on so much of the complaint as sought certain declaratory and injunctive relief, and granted the separate cross motions of the defendants HOP Energy, LLC, Century Petroleum, Ltd., Metro Terminals Corp., Clean Fleet Fueling Corp., and Chief Energy Corp. pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them.

ORDERED that the order is affirmed, with one bill of costs.

The plaintiffs failed to establish their prima facie entitlement to judgment as a matter of law on so much of the complaint as sought certain declaratory and injunctive relief. Accordingly, the Supreme Court properly denied their motion, in effect, for summary judgment on those causes of action, regardless of the sufficiency of the defendants’ opposition papers.

The Supreme Court properly granted the moving defendants’ separate cross motions [*2]pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them, as the allegations in the complaint were insufficient to make out a cognizable cause of action.

BALKIN, J.P., LEVENTHAL, HALL and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

“Giuliano v 666 Old Country Rd., LLC”      2011-05413         2012 NY Slip Op 08095    “Decided on November 28, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

WILLIAM F. MASTRO, A.P.J.

PETER B. SKELOS

ANITA R. FLORIO

L. PRISCILLA HALL, JJ.

 

2011-05413

2011-08216

(Index No. 26263/08)

 

 

[*1]Delia Giuliano, respondent,

 

v

 

666 Old Country Road, LLC, et al., appellants.

 

 

 

 

 

Barry, McTiernan & Moore, New York, N.Y. (David H. Schultz

of counsel), for appellants 666 Old Country Road, LLC, and Sutton

& Edwards Management, LLC.

Chesney & Murphy, LLP, Baldwin, N.Y. (Peter J. Verdirame

of counsel), for appellant Nouveau

Elevator Industries, Inc.

Sullivan & Sullivan, LLP, Garden City, N.Y. (Mitchell

Dranow of counsel), for respondent.

 

 

DECISION & ORDER

In an action to recover damages for personal injuries, (1) the defendants 666 Old Country Road, LLC, and Sutton & Edwards Management, LLC, appeal from so much of an order of the Supreme Court, Queens County (Brathwaite-Nelson, J.), dated May 10, 2011, as denied, as untimely, that branch of their motion which was for summary judgment dismissing the complaint insofar as asserted against them, and the defendant Nouveau Elevator Industries, Inc., separately appeals, as limited by its brief, from so much of the same order as denied, as untimely, that branch of its cross motion which was for summary judgment dismissing the complaint insofar as asserted against it, and denied its separate motion to extend its time to move for summary judgment nunc pro tunc, and (2) the defendant Sutton & Edwards Management, LLC, appeals from so much of an order of the same court dated July 1, 2011, as granted that branch of the plaintiff’s motion which was to strike its answer based on spoliation of evidence.

ORDERED that the order dated May 10, 2011, is affirmed insofar as appealed from; and it is further,

ORDERED that the order dated July 1, 2011, is modified, on the law and in the exercise of discretion, by deleting the provision thereof granting that branch of the plaintiff’s motion which was to strike the answer of the defendant Sutton & Edwards Management, LLC, and substituting therefor a provision granting that branch of the motion only to the extent of directing that an adverse inference charge be given at trial against that defendant with respect to the video recording of the underlying accident; as so modified, the order dated July 1, 2011, is affirmed insofar as appealed from; and it is further, [*2]

ORDERED that one bill of costs is awarded to the plaintiff, payable by the defendants appearing separately and filing separate briefs.

That branch of the motion of the defendants 666 Old Country Road, LLC (hereinafter Old Country Road), and Sutton & Edwards Management, LLC (hereinafter Sutton & Edwards), which was for summary judgment dismissing the complaint insofar as asserted against them, and that branch of the cross motion of the defendant Nouveau Elevator Industries, Inc. (hereinafter Nouveau), which was for summary judgment dismissing the complaint insofar as asserted against it, were untimely (see Buffolino v City of New York, 92 AD3d 633; Hernandez v 35-55 73rd St., LLC, 90 AD3d 709, 709-710; Van Dyke v Skanska USA Civ. Northeast, Inc., 83 AD3d 1049). Old Country Road and Sutton & Edwards, and Nouveau, failed to demonstrate “”good cause”” for their respective delays in moving for summary judgment (CPLR 3212[a]; see Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 726; Brill v City of New York, 2 NY3d 648, 652). Accordingly, the Supreme Court properly denied, as untimely, that branch of the motion of Old Country Road and Sutton & Edwards which was for summary judgment dismissing the complaint insofar as asserted against them, and that branch of Nouveau’s cross motion which was for summary judgment dismissing the complaint insofar as asserted against it (see Buffolino v City of New York, 92 AD3d at 633; Hernandez v 35-55 73rd St., LLC, 90 AD3d at 709-710).

The Supreme Court has broad discretion in determining sanctions for spoliation of evidence (see Mendez v La Guacatala, Inc., 95 AD3d 1084, 1085). The party requesting sanctions for spoliation of evidence has the burden of demonstrating that a litigant intentionally or negligently disposed of critical evidence, and fatally compromised the movant’s ability to prove a claim or defense (see id.). Here, although the plaintiff demonstrated that Sutton & Edwards intentionally or negligently disposed of the video recording of the underlying accident, her ability to prove her case without that recording was not fatally compromised (see id.). Accordingly, the Supreme Court improvidently exercised its discretion in striking Sutton & Edwards’s answer on that basis. Under the circumstances of this case, the appropriate sanction is to direct that an adverse inference charge be issued at trial against Sutton & Edwards with respect to the unavailable recording (id. at 1085-1086; see Barone v City of New York, 52 AD3d 630, 631).

The defendants’ remaining contentions are without merit.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Herrera v MTA Bus Co.  2011-10786         2012 NY Slip Op 08096    “Decided on November 28, 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.

 

2011-10786

(Index No. 2026/09)

 

 

[*1]Yolanda Herrera, appellant,

 

v

 

MTA Bus Company, respondent.

 

 

 

 

 

Helen Dalton & Associates, P.C., Forest Hills, N.Y. (Roman

Avshalumov of counsel), for appellant.

Morris Duffy Alonso & Faley, New York, N.Y. (Anna J.

Ervolina and Andrea M. Alonso 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, Queens County (Brathwaite-Nelson, J.), dated September 22, 2011, which denied her motion pursuant to CPLR 5015(a)(1) to vacate an order of the same court dated November 24, 2010, granting the defendant’s unopposed motion for summary judgment dismissing the complaint.

ORDERED that the order dated September 22, 2011, is affirmed, with costs.

To vacate her default in opposing the defendant’s motion for summary judgment dismissing the complaint, the plaintiff was required to demonstrate a reasonable excuse for her default and a potentially meritorious opposition to the motion (see CPLR 5015[a][1]; Tsikotis v Pioneer Bldg. Corp., 96 AD3d 936, 936; Walker v Mohammed, 90 AD3d 1034, 1034; Roche v City of New York, 88 AD3d 978, 979; Casali v Cyran, 84 AD3d 711, 711; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 392). Whether an excuse is reasonable is a determination within the sound discretion of the Supreme Court (see Walker v Mohammed, 90 AD3d at 1034; SS Constantine & Helen’s Romanian Orthodox Church of Am. v. Z. Zindel, Inc., 44 AD3d 744, 745), and the Supreme Court has the discretion to accept law office failure as a reasonable excuse (see CPLR 2005) where that claim is supported by a “” detailed and credible'”” explanation of the default at issue (Swensen v MV Transp., Inc., 89 AD3d 924, 925, quoting Henry v Kuveke, 9 AD3d 476, 479).

Here, the plaintiff failed to establish a reasonable excuse for her default in opposing the defendant’s motion for summary judgment. Her claim of law office failure was conclusory and unsubstantiated and, under the circumstances presented here, did not constitute a reasonable excuse for her default (see Wells Fargo Bank, N.A. v Cervini, 84 AD3d 789, 790). Since the plaintiff failed to demonstrate a reasonable excuse for her default, it is unnecessary to determine whether she demonstrated the existence of a potentially meritorious opposition to the motion (see generally Wells Fargo Bank, N.A. v Cervini, 84 AD3d at 790; HSBC Bank USA, N.A. v Roldan, 80 AD3d 566, 567; see also Tsikotis v Pioneer Bldg. Corp., 96 AD3d at 936). Accordingly, the Supreme Court properly [*2]denied the plaintiff’s motion to vacate the order dated November 24, 2010.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

HSBC Mtge. Corp. (USA) v Carr  2011-11770         2012 NY Slip Op 08097    “Decided on November 28, 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.

 

2011-11770

(Index No. 2559/08)

 

 

[*1]HSBC Mortgage Corporation (USA), respondent,

 

v

 

Leon Carr, etc., et al., defendants, Dale Hansen, appellant.

 

 

 

 

 

Rossi & Crowley, LLP, Douglaston, N.Y. (Thomas J. Rossi, Sally

Sancimino, and Nadav Zamir of counsel), for appellant.

Stern & Eisenberg, P.C., Lancaster, N.Y. (Len M. Garza and

Kenneth Britt of counsel), for

respondent.

 

 

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Dale Hansen appeals from an order of the Supreme Court, Queens County (Taylor, J.), dated September 15, 2011, which denied his motion for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant Dale Hansen for summary judgment dismissing the complaint insofar as asserted against him is granted.

In 2003, the defendants Leon Carr and Claudette Carr (hereinafter together the Carrs) obtained a home equity line of credit account (hereinafter the HELOC) in the amount of $50,000 from the plaintiff, HSBC Mortgage Corporation (USA) (hereinafter HSBC). The HELOC was secured by a mortgage on the subject property (hereinafter the HSBC HELOC mortgage), which was then owned by the Carrs. In 2004, the Carrs refinanced the subject property, obtaining a loan from IndyMac Federal Savings Bank (hereinafter IndyMac) in the amount of $285,000 which was secured by a mortgage on the subject property (hereinafter the IndyMac mortgage). In connection with the IndyMac mortgage, the Carrs requested a “”payoff letter”” from HSBC relating to the HSBC HELOC mortgage. A check that satisfied the balance due on the HELOC, as of that time, was sent to HSBC. Accompanying that check was an HSBC form (hereinafter the HSBC form) indicating that the Carrs requested that a discharge of the HSBC HELOC mortgage be forwarded to IndyMac’s counsel and closing agent, attorney Robert Mandel. It is undisputed that HSBC received and negotiated the check, but did not close the HELOC. It is also undisputed that HSBC received the completed HSBC form.

In 2005 and 2006, the Carrs withdrew $47,788.06 in new funds from the still-open HELOC. In December 2007, IndyMac commenced an action to foreclose the IndyMac mortgage; HSBC was not named as a party in that action. In January 2008, HSBC commenced the instant action to foreclose the HSBC HELOC mortgage, naming, among others, “”Mortgage Electronic [*2]Registration Systems, Inc. as Nominee for Indymac Bank, F.S.B.”” as a defendant.

In November 2008, IndyMac obtained title to the subject property after being the successful bidder at the foreclosure auction held in connection with IndyMac’s foreclosure action. Ultimately, in April 2010, title to the subject property was transferred to the defendant Dale Hansen. In January 2011, Hansen, as the record owner of the subject property, was granted leave to intervene as a defendant in the instant action. In his answer, he asserted counterclaims, inter alia, for the cancellation and discharge of the HSBC HELOC mortgage.

Hansen moved for summary judgment dismissing the complaint insofar as asserted against him, arguing that HSBC was obligated to close the HELOC in 2004 when, in the course of the IndyMac refinancing, the outstanding balance on the HELOC was paid in full and the HSBC form requesting that a satisfaction of the HSBC HELOC mortgage be sent to Mandel for filing was submitted to HSBC. In support of his motion, Hansen submitted, among other things, an affirmation from Mandel stating that he tendered both the “”payoff check”” and the HSBC form to HSBC. Hansen also submitted, inter alia, a copy of the check payable to HSBC in an amount sufficient to pay off the HELOC balance and the HSBC form, along with the cover letter from Mandel, transmitting the check and the HSBC form. The cover letter stated that enclosed was a “”payoff check[ ] . . . for the . . . referenced loan in the amount [of] $47,355.93″” and advised that “”any questions”” should be directed to him.

HSBC opposed Hansen’s motion, arguing that Hansen failed to establish his entitlement to judgment as a matter of law. HSBC contended that tendering the HSBC form advising that a discharge of the HSBC HELOC mortgage was to be forwarded to Mandel was not enough to close the HELOC. The Supreme Court denied Hansen’s motion, concluding that he failed to meet his prima facie burden. Hansen appeals, and we reverse.

The Real Property Actions and Proceedings Law provides, with respect to a credit line mortgage, that: “”After payment of authorized principal, interest and any other amounts due thereunder or otherwise owed by law has actually been made, and . . . on written request, a mortgagee of real property situate in this state . . . must execute . . . a satisfaction of mortgage”” (RPAPL 1921[1]). “”A letter requesting that a mortgagee close a credit line and send a satisfaction of the mortgage, or the transmission to the mortgagee of a satisfaction of mortgage accompanied by a request to execute it and return it to a title company for recording”” is sufficient to “”satisfy the statutory requirement of a written request for a satisfaction of mortgage”” (HSBC Bank, USA v Pugkhem, 88 AD3d 649, 650 [citation omitted]). Here, the HSBC form requesting that a mortgage satisfaction be forwarded to Mandel for filing was sufficient to satisfy the writing requirement of RPAPL 1921(1). While the HSBC form requesting a mortgage discharge was not signed by the Carrs themselves, this fact is not determinative (see Merrill Lynch Equity Mgt. v Kleinman, 246 AD2d 884; Barclays Bank of N.Y. v Market St. Mtge. Corp., 187 AD2d 141). By negotiating the payoff check without any further inquiry, HSBC effectively waived any possible right it might have had to insist that the necessary “”written request”” for a discharge of the HSBC HELOC mortgage (RPAPL 1921[1]) be signed by the Carrs as the parties that established the HELOC (cf. Merrill Lynch Equity Mgt. v Kleinman, 246 AD2d at 885-886; see also E*Trade Bank v Perez, 22 Misc 3d 1127[A], 2009 NY Slip Op 50314[U][Sup Ct, Queens County]).

Accordingly, Hansen’s submissions were sufficient to establish his prima facie entitlement to judgment as a matter of law (see HSBC Mtge. Corp. [USA] v Pascoe,AD3d, 2012 NY Slip Op 07631 [2d Dept 2012]; Merrill Lynch Equity Mgt. v Kleinman, 246 AD2d 884, 885; Barclays Bank of N.Y. v Market St. Mtge. Corp., 187 AD2d 141; cf. HSBC Bank, USA v Pugkhem, 88 AD3d 649; Matter of Reitman v Wachovia Natl. Bank, N.A., 49 AD3d 759). In opposition, HSBC failed to raise a triable issue of fact.

HSBC’s remaining contentions are without merit. Accordingly, the Supreme Court should have granted Hansen’s motion for summary judgment dismissing the complaint insofar as asserted against him. [*3]

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

HSBC Mtge. Corp. (USA) v Gerber            2011-04084         2012 NY Slip Op 08098    “Decided on November 28, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

PETER B. SKELOS, J.P.

MARK C. DILLON

RANDALL T. ENG

LEONARD B. AUSTIN, JJ.

 

2011-04084

(Index No. 11413/09)

 

 

[*1]HSBC Mortgage Corporation (USA), respondent,

 

v

 

Dwora Gerber, appellant, et al., defendants. Djinsad Desir, New City, N.Y., for appellant.

 

 

 

 

 

Rosicki, Rosicki & Associates, P.C., Plainview, N.Y. (Andrew

Morganstern of counsel), for respondent.

 

 

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Dwora Gerber appeals from so much of an order of the Supreme Court, Rockland County (Kelly, J.), dated December 6, 2010, as granted those branches of the plaintiff’s motion which were for summary judgment on the complaint, and to appoint a referee to compute.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the plaintiff’s motion which were for summary judgment dismissing the verified answer of the defendant Dwora Gerber and on the complaint, and to appoint a referee to compute are denied.

The plaintiff commenced this action to foreclose a mortgage. In answering the complaint, the defendant Dwora Gerber (hereinafter the defendant) set forth several affirmative defenses including that, as a condition precedent and in order to maintain the action, the plaintiff, pursuant to the mortgage documents, was required to send a notice of default/acceleration prior to the commencement of the action, and that the plaintiff had failed to properly do so. The plaintiff moved, inter alia, for summary judgment on the complaint and to appoint a referee to compute.

The plaintiff failed to establish its prima facie entitlement to judgment as a matter of law. The plaintiff failed to show that it complied with a condition precedent contained in the mortgage agreement, which required that it give the defendant notice of default prior to demanding payment of the loan in full (see Norwest Bank Minn. v Sabloff, 297 AD2d 722; GE Capital Mtge. Servs. v Mittelman, 238 AD2d 471). The unsubstantiated and conclusory statements in the affidavits of the plaintiff’s employees that the required notice of default was sent in accordance with the terms of the mortgage, combined with the copy of the notice of default, failed to establish that the required notice was mailed to the defendant by first class mail or actually delivered to her notice address if sent by other means, as required by the mortgage agreement (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547; see also Mid City Constr. Co., Inc. v Sirius Am. Ins. Co., 70 AD3d 789). Since the plaintiff failed to meet its prima facie burden, we need not consider the sufficiency of the defendant’s papers in opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). Accordingly, the Supreme Court erred in granting those branches of the plaintiff’s motion [*2]which were for summary judgment on the complaint and to appoint a referee to compute.

The plaintiff’s remaining contentions are without merit.

SKELOS, J.P., DILLON, ENG and AUSTIN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

International Fid. Ins. Co. v Kulka Constr. Corp.  2011-05706         2012 NY Slip Op 08099    “Decided on November 28, 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.

 

2011-05706

2011-05707

(Index No. 50519/09)

 

 

[*1]International Fidelity Insurance Company, respondent,

 

v

 

Kulka Construction Corp., et al., appellants.

 

 

 

 

 

Ackerman, Levine, Cullen, Brickman & Limmer, LLP, Great

Neck, N.Y. (John M. Brickman and Benjamin S. Kaplan of

counsel), for appellants.

Abbott, Reiss & Allen, P.C., East Meadow, N.Y. (Guy M.

Allen and Kevin McElroy of counsel),

for respondent.

 

 

DECISION & ORDER

In an action, inter alia, to recover damages for breach of an indemnification agreement, the defendants appeal from (1) so much of an order of the Supreme Court, Suffolk County (Pines, J.), dated April 6, 2011, as granted that branch of the plaintiff’s motion which was for summary judgment on the first cause of action, to recover damages for breach of the indemnification agreement, and (2) a judgment of the same court entered April 28, 2011, which, upon the order, is in favor of the plaintiff and against them in the sum of $315,260.58.

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.

The appeal from the intermediate 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]).

Contrary to the defendants’ contention, the plaintiff surety’s submission of documentation demonstrating its payment of a settlement on behalf of the defendants, as well as an itemized list of expenses paid in connection therewith and the affidavit of personal knowledge of the plaintiff’s Senior Managing Claims Counsel, was sufficient admissible evidence to demonstrate the plaintiff’s prima facie entitlement to judgment as a matter of law on the first cause of action under the terms of the parties’ indemnification agreement (see John Deere Ins. Co. v GBE/Alasia Corp., 57 AD3d 620, 621; Prestige Decorating & Wallcovering, Inc. v United States Fire Ins. Co., 49 AD3d 406; Frontier Ins. Co. v Renewal Arts Contr. Corp., 12 AD3d 891, 892; American Home Assur. Co. v Gemma Constr. Co., 275 AD2d 616, 620; International Fid. Ins. Co. v Spadafina, 192 AD2d 637, 639). In opposition, the speculative and conclusory assertions by the defendants’ [*2]attorney were insufficient to raise a triable issue of fact as to the good faith or reasonableness of the payments.

The defendants’ remaining contentions are without merit.

Accordingly, the Supreme Court properly granted that branch of the plaintiff’s motion which was for summary judgment on the first cause of action, which alleged a breach of the indemnification agreement (see Lee v T.F. DeMilo Corp., 29 AD3d 867, 868; Dramar Constr. v G & A Renovation & Restoration, 302 AD2d 487, 488; Peerless Ins. Co. v Talia Constr. Co., 272 AD2d 919; International Fid. Ins. Co. v Spadafina, 192 AD2d at 639).

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Kamanou-Goune v Swiss Intl. Airlines     2011-01344         2012 NY Slip Op 08100    “Decided on November 28, 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.

 

2011-01344

(Index No. 14480/08)

 

 

[*1]Marie-Gisele Kamanou-Goune, et al., appellants,

 

v

 

Swiss International Airlines, respondent.

 

 

 

 

 

Marie-Gisele Kamanou-Goune and Sydney Couronne Djotita

Goune, New Rochelle, N.Y., appellants pro se.

Eckert Seamans Cherin & Mellott, LLC, White Plains, N.Y.

(Riyaz G. Bhimani of counsel), for

respondent.

 

 

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered January 14, 2011, as denied that branch of their motion which was, in effect, pursuant to CPLR 3124 to compel the defendant to comply with certain document production requests, and granted that branch of the defendant’s cross motion which was pursuant to CPLR 3124 to compel them to respond to the defendant’s demand for a bill of particulars and combined demands.

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

Pursuant to CPLR 3120, the plaintiffs requested that the defendant produce certain documents. The defendant objected to these requests and provided written responses (see CPLR 3122); it did not produce any of the requested documents. The plaintiffs moved, inter alia, in effect, pursuant to CPLR 3124 to compel the defendant to comply with their document production requests. Thereafter, the defendant complied with some of the requests by producing certain documents, but reasserted its objections to the plaintiffs’ other requests and refused to produce the documents related to those requests. The defendant then cross-moved pursuant to CPLR 3124 to compel the plaintiffs to respond to its demand for a bill of particulars and combined demands, and pursuant to CPLR 3103 for a protective order with respect to the plaintiffs’ requests for the production of certain documents.

The Supreme Court denied the aforementioned branch of the plaintiffs’ motion on the ground that it was rendered “”moot”” when the defendant complied with some of the plaintiffs’ document requests by producing certain documents. The Supreme Court also denied that branch of the defendant’s cross motion which was pursuant to CPLR 3103 for a protective order on the ground that it had also been rendered “”moot,”” but granted that branch of the cross motion which was pursuant to CPLR 3124 to compel the plaintiffs to respond to its demand for a bill of particulars and combined demands. The plaintiffs appeal. We affirm the order insofar as appealed from, albeit, in part, on grounds different from those relied upon by the Supreme Court. [*2]

Contrary to the determination of the Supreme Court, that branch of the plaintiffs’ motion which was, in effect, pursuant to CPLR 3124 to compel the defendant to comply with certain document production requests was not rendered academic by the defendant’s partial compliance with those requests (cf. Kooper v Kooper, 74 AD3d 6, 9; Bajrovic v Jeff Anders Trucking, 52 AD3d 553).

However, the denial of that branch of the plaintiffs’ motion was appropriate as those requests were overly broad, lacked specificity, and sought irrelevant documents (see generally Conte v County of Nassau, 87 AD3d 559, 560; Bell v Cobble Hill Health Ctr., Inc., 22 AD3d 620, 621; Latture v Smith, 304 AD2d 534, 535-536).

Furthermore, the Supreme Court providently exercised its discretion in granting that branch of the defendant’s cross motion which was pursuant to CPLR 3124 to compel the plaintiffs to respond to its demand for a bill of particulars and combined demands (see Clark v Halmar Equities, Inc., 88 AD3d 940, 941).

The plaintiffs’ remaining contentions, which pertain to the merits of this action, are not properly before this Court.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

“LaSalle Bank, NA v Pace”             2011-03219         2012 NY Slip Op 08101    “Decided on November 28, 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.

 

2011-03219

(Index No. 15822/08)

 

 

[*1]LaSalle Bank, NA, etc., plaintiff-respondent,

 

v

 

James F. Pace, et al., appellants, et al., defendants; Attorney General of State of New York, intervenor-respondent. Christopher Thompson, West Islip, N.Y., for appellants.

 

 

 

 

 

Cullen and Dykman LLP, Garden City, N.Y. (Justin F. Capuano and

James G. Ryan of counsel), for plaintiff-respondent.

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

(Barbara D. Underwood, Andrew D. Bing,

and Laura Etlinger of counsel),

intervenor-respondent pro se.

 

 

DECISION & ORDER

In an action to foreclose a mortgage, the defendants James F. Pace and Linda Pace appeal from an order of the Supreme Court, Suffolk County (Whelan, J.), dated February 28, 2011, which, upon a decision of the same court also dated February 28, 2011, granted the plaintiff’s motion, inter alia, for summary judgment on the complaint insofar as asserted against them and for an order of reference.

ORDERED that the order is affirmed, with costs payable to the plaintiff.

In this mortgage foreclosure action, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendants James F. Pace and Linda Pace (hereinafter together the Paces) and for an order of reference. While the motion was pending, the Chief Administrative Judge of the State of New York, at the direction of the Chief Judge of the State of New York, and with the consent of the Presiding Justices of the Appellate Divisions, issued Administrative Order 548-10. The administrative order requires a plaintiff’s counsel in a residential foreclosure action to certify the accuracy of the documents filed in support of the action by filing an affirmation representing that counsel communicated with a representative of the plaintiff who reviewed the documents and records relating to the action, and the papers filed with the court, and confirmed their factual accuracy. The plaintiff’s counsel is further required to represent that, based upon such communication and counsel’s own inspection of the papers, to the best of counsel’s knowledge, information, and belief, the filed documents are complete and accurate in all relevant respects. The attorney affirmation requirement was later amended slightly by Administrative Order 431-11.

In opposition to the plaintiff’s motion, the Paces argued, among other things, that the attorney affirmation had not been filed, and its filing was required prior to an award of summary judgment. The plaintiff’s counsel then filed the required affirmation in surreply. The Supreme [*2]Court granted the plaintiff’s motion, and the Paces appeal.

Contrary to the Paces’ contention, the attorney affirmation required by the administrative order was not untimely submitted. In cases such as this, which were pending on the effective date of the administrative order, but where no judgment of foreclosure has been entered, the plain language of the administrative order requires its filing “”at the time of filing either the proposed order of reference or the proposed judgment of foreclosure.”” Here, the plaintiff’s counsel timely filed the affidavit in surreply on its motion, inter alia, for summary judgment on the complaint insofar as asserted against the Paces and for an order of reference. The attorney affirmation is not itself substantive evidence or a new argument supporting summary judgment, and thus, the Paces were not prejudiced by the lack of opportunity to challenge counsel’s representations therein (see generally Burlington Ins. Co. v Guma Constr. Corp., 66 AD3d 622).

The Paces’ remaining contention involves dicta and, in any event, is academic in light of our determination.

DILLON, J.P., BALKIN, LEVENTHAL and HALL, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Lionetti v Lionetti             2011-10382         2012 NY Slip Op 08102    “Decided on November 28, 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.

 

2011-10382

(Index No. 29947/10)

 

 

[*1]Joseph Lionetti, respondent,

 

v

 

Hannah Nicole Lionetti, appellant.

 

 

 

 

 

Nancy T. Sherman, P.C., Great Neck, N.Y., for appellant.

Sari M. Friedman, P.C., Garden City, N.Y. (Andrea B. Friedman

of counsel), for respondent.

 

 

DECISION & ORDER

In an action for a divorce and ancillary relief, the defendant appeals, by permission, from an order of the Supreme Court, Suffolk County (MacKenzie, J.), dated November 9, 2011, which, upon a decision of the same court dated October 19, 2011, made after a nonjury trial, inter alia, awarded sole custody of the subject child to the plaintiff.

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

There is “”no prima facie right to the custody of the child in either parent”” (Domestic Relations Law § 70[a]; § 240[1][a]; see Friederwitzer v Friederwitzer, 55 NY2d 89, 93; Matter of Cardozo v Defreitas, 87 AD3d 1138, 1138; Mohen v Mohen, 53 AD3d 471, 472; Matter of Riccio v Riccio, 21 AD3d 1107, 1107). Rather, the essential consideration in making an award of custody is the best interests of the child (see Friederwitzer v Friederwitzer, 55 NY2d at 94; Matter of Cardozo v Defreitas, 87 AD3d at 1138). Moreover, the trial court’s determination as to custody “”should not be disturbed unless it lacks a sound and substantial basis in the record”” (Cervera v Bressler, 90 AD3d 803, 805). Here, the record supports the trial court’s award of custody to the plaintiff father. Under the totality of the circumstances, he is the more fit parent (see Setty v Koeneke, 148 AD2d 520, 521).

The defendant’s contention concerning child support is not properly before this Court inasmuch as the order appealed from did not decide the issue of support (see McKiernan v McKiernan, 277 AD2d 433, 434).

The defendant’s remaining contention is without merit.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Lopez v Kelleher               2012-02862         2012 NY Slip Op 08103    “Decided on November 28, 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.

 

2012-02862

(Index No. 41407/08)

 

 

[*1]Mabel Lopez, respondent,

 

v

 

Kelly A. Kelleher, et al., appellants.

 

 

 

 

 

Richard T. Lau, Jericho, N.Y. (Linda Meisler of counsel), for

appellants.

 

 

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Suffolk County (Rebolini, J.), dated February 28, 2012, 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 affirmed, without costs or disbursements.

The defendants failed to meet their prima facie burden of demonstrating 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, 350; Gaddy v Eyler, 79 NY2d 955, 956-957). The defendants’ motion papers failed to adequately address the plaintiff’s claim, set forth in the bill of particulars, that she sustained a medically determined injury or impairment of a nonpermanent nature which prevented her from performing substantially all of the material acts which constituted her ususal 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 the defendants failed to meet their prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

Accordingly, the Supreme Court properly denied the defendants’ motion for summary judgment dismissing the complaint.

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

ENTER: [*2]

Aprilanne Agostino

Clerk of the Court”

Maccarello v County of Suffolk  2011-02271         2012 NY Slip Op 08104    “Decided on November 28, 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.

 

2011-02271

2011-02272

(Index No. 1233/05)

 

 

[*1]Allison Maccarello, et al., appellants,

 

v

 

County of Suffolk, defendant third-party plaintiff-respondent; Cornell Cooperative Extension Association of Suffolk County, third-party defendant-respondent.

 

 

 

 

 

Siben & Siben, LLP, Bay Shore, N.Y. (Alan G. Farber of counsel),

for appellants.

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

(Christopher A. Jeffreys of counsel),

for defendant third-party plaintiff-

respondent.

Andrea G. Sawyers, Melville, N.Y. (Christopher T. Vetro of

counsel), for third-party defendant-

respondent.

 

 

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, the plaintiffs appeal (1) from a judgment of the Supreme Court, Suffolk County (Pitts, J.), entered November 17, 2010, which, upon the granting of the defendant third-party plaintiff’s motion pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint, made at the close of the plaintiffs’ case, is in favor of the defendant third-party plaintiff and against them dismissing the complaint, and (2), as limited by their brief, from so much of an order of the same court dated January 19, 2011, as, upon reargument, adhered to the original determination.

ORDERED that the judgment is reversed, on the law, the defendant third-party plaintiff’s motion pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint is denied, the complaint is reinstated, and the matter is remitted to the Supreme Court, Suffolk County, for a new trial; and it is further,

ORDERED that the appeal from the order is dismissed as academic in light of our determination on the appeal from the judgment; and it is further,

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

On February 3, 2004, the plaintiff Allison Maccarello (hereinafter the injured plaintiff) slipped and fell on ice in a parking lot while walking to her place of business, one of the 17 outbuildings on the property known as the Suffolk County Farm (hereinafter the Farm). The building in which the injured plaintiff worked was known as the 4-H building (hereinafter the Premises) and was located in Yaphank. The Farm and the Premises are owned by the defendant [*2]County of Suffolk. The third-party defendant, the plaintiff’s employer, Cornell Cooperative Extension Association of Suffolk County (hereinafter Cornell), entered into an agreement with the County pursuant to which Cornell managed the Farm and performed certain services there for the County. Pursuant to this agreement, Cornell used and occupied the Premises, and the County agreed to provide snow removal services. In this action, the injured plaintiff, and her husband suing derivatively, alleged that the County was negligent in the ownership, operation, maintenance, management, supervision, and control of the premises, inter alia, in failing to keep the parking lot at the premises free of ice, thereby creating a dangerous and defective condition of which the County had actual and constructive notice.

At the liability portion of the bifurcated trial, the plaintiffs conceded that no written notice of a defective or icy condition at the premises was sent to the County prior to the injured plaintiff’s fall, but contended that no such notice was required because here, the County was not being sued as a result of a negligent execution of its governmental duties, but rather, in its proprietary capacity as a property owner, and thus it owed the same duty to maintain its property as a private landowner.

Upon the plaintiffs’ concession regarding the lack of prior written notice, the County moved pursuant to CPLR 4401, at the close of the plaintiffs’ case, for judgment as a matter of law on the ground that the plaintiffs failed to comply with the County’s prior written notice law (see Suffolk County Charter § C8-2A). The Supreme Court granted the motion and, thereupon, entered a judgment dismissing the complaint. The plaintiffs, in effect, moved for leave to reargue and, in the order appealed from, the Supreme Court, upon reargument, adhered to its prior determination.

When a governmental agency is acting in a proprietary capacity as a property owner or landowner, it owes the same duty to maintain its property as a private landowner (see Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428, cert denied sub nom. Ruiz v Port Auth. of N.Y. & N.J.,US, 2012 WL 1642607, 2012 US LEXIS 7563[US]; Miller v State of New York, 62 NY2d 506; Dick v Town of Wappinger, 63 AD3d 661). Here, since the County merely leased the Premises to Cornell, and thus acted as a landlord, and its responsibility to remove snow and ice from the Premises’ paved areas arose from its agreement with Cornell, the County was functioning in a proprietary capacity (see Dick v Town of Wappinger, 63 AD3d at 662). Thus, prior written notice was not necessary in order to find the County negligent (id.).

Accordingly, the judgment must be reversed, the motion pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint denied, the complaint reinstated, and the matter remitted to the Supreme Court, Suffolk County, for a new trial.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Nostrom v County of Suffolk      2010-09236         2012 NY Slip Op 08105    “Decided on November 28, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

RANDALL T. ENG, P.J.

MARK C. DILLON

DANIEL D. ANGIOLILLO

JEFFREY A. COHEN, JJ.

 

2010-09236

(Index No. 27038/02)

 

 

[*1]Warren J. Nostrom, appellant,

 

v

 

County of Suffolk, et al., respondents.

 

 

 

 

 

Andrew J. Schatkin, Jericho, N.Y., for appellant.

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

Baptiste of counsel), for respondents.

 

 

DECISION & ORDER

In an action to recover damages for violations of Executive Law § 296 and civil rights violations pursuant to 42 USC § 1983, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Baisley, Jr., J.), dated August 2, 2010, which granted the defendants’ motion pursuant to CPLR 3211(a) to dismiss the complaint. Presiding Justice Eng has been substituted for former Justice Belen (see 22 NYCRR 670.1[c]).

ORDERED that the order is affirmed, with costs.

The Supreme Court properly granted that branch of the defendants’ motion which was to dismiss the state-law cause of action because the plaintiff failed to serve a timely notice of claim (see Hibbert v Suffolk County Dept. of Probation, 267 AD2d 205, 205). Contrary to the plaintiff’s assertions, a notice of claim was required because, in the state-law cause of action, the plaintiff sought only to vindicate his individual interest, in the form of money damages, for an alleged invasion of his personal and/or property rights (see County Law § 52[1]; General Municipal Law §§ 50-e, 50-I; Picciano v Nassau County Civ. Serv. Commn., 290 AD2d 164, 170; Hibbert v Suffolk County Dept. of Probation, 267 AD2d at 205).

The Supreme Court also properly granted that branch of the defendants’ motion which was to dismiss the civil rights cause of action, which was asserted pursuant to 42 USC § 1983. The plaintiff’s prior employment discrimination complaint, which was filed in federal district court and dismissed because the plaintiff failed to file a timely discrimination charge with a federal or state agency, was grounded on the same allegations as those asserted in the complaint in the instant action. “”When alternative theories are available to recover what is essentially the same relief for harm arising out of the same or related facts such as would constitute a single factual grouping’ . . . the circumstance that the theories involve materially different elements of proof will not justify presenting the claim by two different actions”” (O’Brien v City of Syracuse, 54 NY2d 353, 357-358 [citation omitted]).

The United States Supreme Court has determined that the statutory period for the timely filing of a charge of discrimination with the United States Equal Employment Opportunity Commission or an equivalent state antidiscrimination agency (see 42 USC § 2000e-5[e][1]) is in the [*2]nature of a statute of limitations (see Zipes v Trans World Airlines, Inc., 455 US 385, 393; see also Chin v Port Auth. of N.Y. & N.J., 685 F3d 135, 146 n 6; Gutierrez v City of New York, 756 F Supp 2d 491, 499). Under New York law, a dismissal of a cause of action on the ground that it was barred by the applicable statute of limitations is “”sufficiently close to the merits for claim preclusion purposes”” and, thus, the attempted relitigation of such a cause of action will be barred by the doctrine of res judicata (Smith v Russell Sage Coll., 54 NY2d 185, 194; see Komlosi v City of New York, 3 AD3d 343; Matter of Karmel v Delfino, 293 AD2d 473). Since the cause of action pursuant to 42 USC § 1983 seeks the same relief as that sought in the employment discrimination cause of action, and the federal court dismissed the employment discrimination cause of action as time-barred, the cause of action pursuant to 42 USC § 1983 is barred by the doctrine of res judicata.

The plaintiff’s remaining contentions are without merit.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Osario-Salcedo v Mazarova         2011-11922         2012 NY Slip Op 08106    “Decided on November 28, 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.

 

2011-11922

(Index No. 10648/08)

 

 

[*1]Felipe Osario-Salcedo, respondent,

 

v

 

Larisa Mazarova, et al., defendants, Nicholas Agostino, et al., appellants. Marjorie E. Bornes, Brooklyn, N.Y., for appellants.

 

 

 

 

 

Seligson, Rothman & Rothman, New York, N.Y. (Martin S.

Rothman and Amy Morganstern of counsel), for responent.

 

 

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants Nicholas Agostino and Orange Transportation Svc., Inc., appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Rothenberg, J.), dated November 17, 2011, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them 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 insofar as appealed from, with costs.

The appellants 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; Kearney v Garrett, 92 AD3d 725, 726) by submitting evidence establishing that the plaintiff’s alleged injuries were not caused by the subject accident (cf. Jilani v Palmer, 83 AD3d 786, 787).

However, in opposition, the plaintiff submitted evidence raising a triable issue of fact as to whether his alleged injuries were caused by the subject accident (see Perl v Meher, 18 NY3d 208, 218-219; Sforza v Big Guy Leasing Corp., 51 AD3d 659, 661). Accordingly, the Supreme Court properly denied the appellants’ motion for summary judgment dismissing the complaint insofar as asserted against them.

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

ENTER: [*2]

Aprilanne Agostino

Clerk of the Court”

People v Farrice                2010-05655         2012 NY Slip Op 08107    “Decided on November 28, 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.

 

2010-05655

 

 

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

 

v

 

Philip Farrice, appellant.

 

 

 

 

 

Lynn W. L. Fahey, New York, N.Y. (Anna Pervukhin of

counsel), 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 an order of the Supreme Court, Richmond County (Rienzi, J.), dated May 13, 2010, which, after a hearing, designated him a level three sexually violent offender pursuant to Correction Law article 6-C.

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

Contrary to the defendant’s contention, the Supreme Court properly assessed the defendant 10 points under risk factor 12 for failing to genuinely accept responsibility, as required by the Sex Offender Registration Act: Risk Assessment Guidelines and Commentary. According to the presentence investigation report relied upon by the hearing court (see People v Mingo, 12 NY3d 563, 571; People v James, 99 AD3d 775), during an interview with the Probation Department, the defendant minimized the underlying sexual offense and, alternatively, denied that he performed the criminal sexual act which formed the basis for the conviction (see People v Perry, 85 AD3d 890; see also People v Vega, 79 AD3d 718, 719). Accordingly, the defendant was properly designated a level three sexually violent offender.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Finizio 2010-05884         2012 NY Slip Op 08108    “Decided on November 28, 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.

 

2010-05884

 

 

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

 

v

 

Matthew Finizio, appellant. Lynn W. L. Fahey, New York, N.Y. (Anna Pervukhin of counsel), for appellant.

 

 

 

 

 

Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y.

(Morrie I. Kleinbart and Michael Shollar of counsel), for

respondent.

 

 

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Richmond County (Meyer, J.), dated May 6, 2010, 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.

Correction Law § 168-n(3) requires a court making a risk level determination pursuant to the Sex Offender Registration Act (Correction Law article 6-C; 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”” (Correction Law § 168-n[3]). Here, the Supreme Court failed to set forth adequately its findings of fact and conclusions of law in its order. However, since the record is sufficient for this Court to make its own findings of fact and conclusions of law, remittal is not required (see People v Harris, 93 AD3d 704, 704; People v Crandall, 90 AD3d 628, 629; People v Lashway, 66 AD3d 662, 662; People v Guitard, 57 AD3d 751, 751).

In establishing a defendant’s risk level pursuant to SORA, the People bear the burden of establishing, by clear and convincing evidence, the facts supporting the determinations sought (see Correction Law § 168-n[3]; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006]; People v Hewitt, 73 AD3d 880; People v Chambers, 66 AD3d 748, 748; People v Bright, 63 AD3d 1133, 1134; People v Hardy, 42 AD3d 487). “”In assessing points, evidence may be derived from the defendant’s admissions, the victim’s statements, evaluative reports completed by the supervising probation officer, parole officer, or corrections counselor, case summaries prepared by the Board of Examiners of Sex Offenders . . . or any other reliable source, including reliable hearsay”” (People v Crandall, 90 AD3d at 629; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006]; People v Mabee, 69 AD3d 820, 820; see also People v Mingo, 12 NY3d 563).

The only points challenged by the defendant before the Supreme Court, and the only points he challenges here, are the 15 points assessed under risk factor 11, based on a history of drug or alcohol abuse. Contrary to the defendant’s contentions, the People established the facts supporting the assessment of these points by clear and convincing evidence. According to the pre-[*2]sentence report, the defendant reported use of controlled substances and/or alcohol, although he claimed at that time that he had been drug-free for more than five years. He first used marijuana or hashish before the age of 16. According to the case summary, the defendant admitted to using marijuana. When the defendant was processed by what is now the Department of Corrections and Community Supervision, he scored in the “”Strong Suggestion”” range on the Michigan Alcohol Screening Test, and in the “”Substance Abuse Indicated”” range on the Simple Screening Instrument. The defendant was referred to a substance abuse treatment program. He also completed a sex offender program designed for chemically dependent inmates. In addition, the case summary establishes that the defendant has been convicted of, among other things, attempted criminal sale of a controlled substance in the third degree (see Penal Law §§ 110.00, 110.05, 220.39), and criminal possession of a controlled substance in the fifth degree (see Penal Law § 220.06). Based on the foregoing, the People established, by clear and convincing evidence, that the assessment of 15 points on the Risk Assessment Instrument for a history of drug or alcohol abuse was appropriate.

Accordingly, based on the points assessed, the Supreme Court properly designated the defendant a level two sex offender.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Rubio-Modica v Modica                2011-07429         2012 NY Slip Op 08109    “Decided on November 28, 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.

 

2011-07429

(Index No. 26601/09)

 

 

[*1]Adelaida Rubio-Modica, appellant,

 

v

 

Salvatore Modica, respondent. Christopher S. Jay, Bellport, N.Y., for appellant.

 

 

 

 

 

DECISION & ORDER

In an action to enforce a Florida divorce judgment, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Flug, J.), dated June 27, 2011, as denied those branches of her motion which were to appoint Referee Joseph Baum as a receiver and direct him to transfer title to certain real property to her, and her separate motion to vacate an order of the same court dated September 20, 2010, and entered in a foreclosure action entitled Modica v Sinchi, commenced under Index No. 21738/06.

ORDERED that the appeal from so much of the order dated June 27, 2011, as denied the plaintiff’s motion to vacate the order dated September 20, 2010, is dismissed, without costs or disbursements; and it is further,

ORDERED that the order dated June 27, 2011, is reversed insofar as reviewed, on the law, without costs or disbursements, and those branches of the plaintiff’s motion which were to appoint Referee Joseph Baum as receiver and direct him to transfer title to the subject real property to the plaintiff are granted.

It is an appellant’s obligation to assemble a proper record on appeal (see Salem v Mott, 43 AD3d 397; Cohen v Wallace & Minchenberg, 39 AD3d 689). In this regard, “”[t]he record must contain all of the relevant papers that were before the Supreme Court”” (Cohen v Wallace & Minchenberg, 39 AD3d at 689; see CPLR 5526). In this instance, the plaintiff seeks review, inter alia, of the portion of the Supreme Court’s order which denied her motion to vacate a previous order in a separate action. However, the record does not contain the papers constituting the plaintiff’s separate motion to vacate that previous order. Where, as here, meaningful appellate review of the Supreme Court’s determination is made “”virtually impossible”” because of the incomplete nature of the record submitted, dismissal of that portion of the appeal is the appropriate disposition (Salem v Mott, 43 AD3d at 397). Thus, the plaintiff’s appeal from so much of the order as denied her motion to vacate the previous order must be dismissed.

With respect to the part of the record that is sufficient to decide the appeal from other parts of the order appealed from, the defendant in this action “”is not available or refuses to comply”” with a Florida judgment of divorce directing him to transfer, to the plaintiff, title to certain real property situated in Queens County. As such, pursuant to the judgment of divorce, the Supreme Court should have appointed Referee Joseph Baum as receiver and directed him to transfer the [*2]defendant’s interest in the property to the plaintiff. The plaintiff has demonstrated the defendant’s refusal or unavailability to comply by establishing that he opposed the transfer of title and left the country.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Sheuly v Fry        2012-00845         2012 NY Slip Op 08110    “Decided on November 28, 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.

 

2012-00845

(Index No. 29839/09)

 

 

[*1]Salma Sheuly, appellant,

 

v

 

Jeremy Eugene Fry, et al., respondents, et al., defendant.

 

 

 

 

 

H. Bruce Fischer, P.C., New York, N.Y., for appellant.

London Fischer, LLP, New York, N.Y. (Myra Needleman and

Jennifer R. Budoff of counsel), for

respondents.

 

 

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Hart, J.), dated November 21, 2011, which granted the motion of the defendants Jeremy Eugene Fry, The Walt Disney Company, Incantation Productions, Inc., and Cinema Vehicles Services East, LLC, for summary judgment dismissing the complaint insofar as asserted against them 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 motion of the defendants Jeremy Eugene Fry, The Walt Disney Company, Incantation Productions, Inc., and Cinema Vehicles Services East, LLC, for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) is denied.

The movants 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 movants submitted competent medical evidence establishing, prima facie, that the alleged injuries to the cervical and lumbar regions of the plaintiff’s spine, her right knee, her right leg, and her hips 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 a serious injury to the lumbar region of her spine (see Perl v Meher, 18 NY3d 208, 218-219). Accordingly, the Supreme Court erred in granting the movants’ motion.

ANGIOLILLO, J.P., BALKIN, AUSTIN and MILLER, JJ., concur. [*2]

ENTER:

Aprilanne Agostino

Clerk of the Court”

Sunshine Care Corp. v Warrick   2011-02193         2012 NY Slip Op 08111    “Decided on November 28, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

WILLIAM F. MASTRO, J.P.

RUTH C. BALKIN

SANDRA L. SGROI

JEFFREY A. COHEN, JJ.

 

2011-02193

(Index No. 1825/08)

 

 

[*1]Sunshine Care Corp., doing business as Hempstead Park Nursing Home, appellant,

 

v

 

Betty Warrick, respondent.

 

 

 

 

 

Abrams, Fensterman, Fensterman, Eisman, Greenberg, Formato

& Einiger, LLP, Lake Success, N.Y. (Susan Mauro of counsel),

for appellant.

 

 

DECISION & ORDER

In an action to recover damages for breach of contract and on an account stated, the plaintiff appeals from an order of the Supreme Court, Nassau County (Feinman, J.), entered July 6, 2010, which denied its motion for summary judgment on the complaint.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the plaintiff’s motion which was for summary judgment on the cause of action to recover damages for breach of contract, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.

The plaintiff, Sunshine Care Corp., doing business as Hempstead Park Nursing Home (hereinafter the nursing home), commenced the instant action to recover a balance of $64,616 incurred for the room, board, and skilled nursing services provided to the defendant’s now-deceased husband who resided at the nursing home from November 1, 2006, until his discharge on September 21, 2007. In its motion for summary judgment on the complaint, the nursing home argued that the defendant breached the nursing home admission agreement, which she executed as her husband’s designated representative and, thus, is liable for the balance owing. The Supreme Court denied the motion, and the nursing home appeals.

Pursuant to the Nursing Home Reform Act, “”[w]ith respect to admissions practices, a skilled nursing facility must . . . not require a third party guarantee of payment to the facility as a condition of admission (or expedited admission) to, or continued stay in, the facility”” (42 USC § 1395i-3[c][5][A][ii]). However, with respect to contracts with legal representatives, “”[s]ubparagraph (A)(ii) shall not be construed as preventing a facility from requiring an individual, who has legal access to a resident’s income or resources available to pay for care in the facility, to sign a contract (without incurring personal financial liability) to provide payment from the resident’s income or resources for such care”” (42 USC § 1395i-[c][5][B][ii]). Here, the admission agreement did not require the defendant to guarantee payment for her husband’s care as a condition of his admission to, or his continued stay in, the nursing home. The agreement stated, inter alia, that the designated representative agrees to “”provide payment from the resident’s income or resources to the extent that he/she has access to such income and resources without the designated representative incurring personal financial liability”” (emphasis added). However, the agreement goes on to state that the designated representative would incur personal liability “”if her actions or omissions have caused or contributed to the nonpayment of Facility’s fees,”” and that such actions or omissions included “”(i) [*2]a failure to utilize the resident’s funds to pay for the resident’s care at the Facility when the designated representative has control over the resident’s funds by way of a Power of Attorney [or] access to joint accounts, [or] (ii) misappropriating the resident’s funds.”” Thus, the defendant could be held personally liable for the cost of the decedent’s care if it was shown that she breached the terms of the agreement by impeding the nursing home from collecting its fees from the decedent’s funds or resources over which the defendant exercised control (see Troy Nursing Home & Rehabilitation Center, LLC v Naylor, 94 AD3d 1353, 1354-1355; Putnam Nursing & Rehabilitation Ctr. v Bowles, 239 AD2d 479, 481).

The nursing home established its prima facie entitlement to judgment as a matter of law on its breach of contract cause of action. The nursing home presented proof that the defendant was given a durable power of attorney on October 5, 2006, prior to her husband’s admission to the nursing home on November 1, 2006, which afforded her legal access to, and control of, among other things, her husband’s banking, insurance, and retirement benefit transactions. The nursing home also presented the admission agreement, which the defendant admitted she reviewed and signed, and wherein, as noted above, she agreed in her capacity as her husband’s designated representative and spouse, to, among other things, pay the cost of care provided by the nursing home from her husband’s income and resources beyond that which was covered by Medicare or insurance. The nursing home further proffered the defendant’s deposition testimony averring that, at the time of her husband’s admission to the nursing home, and at the time of his death, her husband had ample resources to pay the cost of the room and board and care rendered to him by the nursing home. In addition, the nursing home also presented evidence demonstrating that the defendant knew of her obligation to pay under the admission agreement since she made a payment of $10,000 in response to its invoices.

In opposition, the defendant failed to raise a triable issue of fact. The defendant presented an affidavit claiming that, at the time of her husband’s admission to the nursing home, he had very few assets, and that the bulk of the money contained within her and her husband’s joint bank accounts was contributed by her. However, these claims are contrary to her prior deposition testimony, and we reject them as an attempt to create feigned issues of fact designed to avoid the consequences of the earlier testimony (see generally Soussi v Gobin, 87 AD3d 580, 581-582; Vela v Tower Ins. Co. of N.Y., 83 AD3d 1050, 1051). Moreover, the defendant admitted to expending the bulk of the parties’ joint assets while her husband was a resident in the nursing home. Accordingly, the Supreme Court should have granted that branch of the nursing home’s motion which was for summary judgment on the cause of action to recover damages for breach of contract.

Under the circumstances of this case, the Supreme Court properly denied that branch of the nursing home’s motion which was for summary judgment on its cause of action for an account stated.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

“Verizon N.Y., Inc. v Orange & Rockland Utils., Inc.”         2011-05630         2012 NY Slip Op 08112    “Decided on November 28, 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.

 

2011-05630

(Index No. 4018/09)

 

 

[*1]Verizon New York, Inc., respondent,

 

v

 

Orange & Rockland Utilities, Inc., appellant.

 

 

 

 

 

Richard W. Babinecz, New York, N.Y., and Mischel & Horn,

P.C., New York, N.Y. (Scott T. Horn and Naomi M. Taub of

counsel), for appellant (one brief filed).

Medina & Torrey, P.C., Ossining, N.Y. (David S. Torrey,

Michael Santangelo, and Shelley E.

Harms of counsel), for respondent.

 

 

DECISION & ORDER

In an action to recover for property damage, the defendant appeals from a judgment of the Supreme Court, Rockland County (Walsh II, J.), entered April 29, 2011, which, upon, inter alia, a jury verdict on the issue of damages awarding the plaintiff the principal sum of $200,788.35, and upon the denial of its motion pursuant to CPLR 4404, among other things, in effect, to set aside so much of the jury verdict as awarded the plaintiff certain sums for certain damages and for judgment as a matter of law with respect to those awards, or, alternatively, to set aside the jury verdict as contrary to the weight of the evidence and for a new trial with respect to those awards, is in favor of the plaintiff and against it in the principal sum of $200,788.35.

ORDERED that the judgment is affirmed, with costs.

For a reviewing court to determine that a jury’s verdict is not supported by legally sufficient evidence, it must conclude that there is “”simply no valid line of reasoning and permissible inferences”” by which the jury could have rationally reached its verdict on the basis of the evidence presented at trial (Cohen v Hallmark Cards, 45 NY2d 493, 499; see Szczerbiak v Pilat, 90 NY2d 553, 556; Geary v Church of St. Thomas Aquinas, 98 AD3d 646). In addition, 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, 746; Piazza v Corporate Bldrs. Group, Inc., 73 AD3d 1006, 1006-1007). “”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”” (Exarhouleas v Green 317 Madison, LLC, 46 AD3d 854, 855; see Salony v Mastellone, 72 AD3d 1060, 1061).

Applying these principles here, the Supreme Court properly denied the defendant’s motion pursuant to CPLR 4404. There was a valid line of reasoning and permissible inferences by which the jury could have rationally reached the challenged portions of its verdict on the basis of the evidence presented at trial, and a fair interpretation of the evidence supported the jury’s determination. Moreover, contrary to the defendant’s contention, the Supreme Court did not err in permitting a certain witness to use a document to refresh her recollection (see generally McCarthy [*2]v Meaney, 183 NY 190, 193; Huff v Bennett, 6 NY 337, 338; Sauer v Diaz, 300 AD2d 1136; cf. D’Amato v Access Mfg., 305 AD2d 447).

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

“Vetrano v J. Kokolakis Contr., Inc.”         2011-06256         2012 NY Slip Op 08113    “Decided on November 28, 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.

 

2011-06256

2012-01528

(Index No. 13309/09)

 

 

[*1]Joseph Vetrano, et al., appellants,

 

v

 

J. Kokolakis Contracting, Inc., defendant third-party plaintiff- respondent; Canatal Industries, Inc., third-party defendant, Derek K. Miller Enterprises, Inc., third- party defendant-respondent.

 

 

 

 

 

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

counsel), for appellants.

Cascone & Kluepfel, LLP, Garden City, N.Y. (Michael T.

Reagan of counsel), for defendant

third-party plaintiff-respondent.

Faust Goetz Schenker & Blee, New York, N.Y. (Peter Kreymer

of counsel), for third-party defendant-

respondent.

 

 

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal (1) from an order of the Supreme Court, Suffolk County (Cohalan, J.), dated June 1, 2011, which denied their motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1), and (2), as limited by their brief, from so much of an order of the same court dated January 24, 2012, as, in effect, upon renewal, adhered to the determination in the order dated June 1, 2011, and denied their separate motion to sever the third-party action from the main action.

ORDERED that the appeal from the order dated June 1, 2011, is dismissed, as that order was superseded by the order dated January 24, 2012, in effect, made upon renewal; and it is further,

ORDERED that the order dated January 24, 2012, is modified, on the law, by deleting the provision thereof, in effect, upon renewal, adhering to the determination in the order dated June 1, 2011, denying the plaintiffs’ motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1), and substituting therefor a provision, upon renewal, vacating the order dated June 1, 2011, and thereupon granting that motion; as so modified, the order dated January 24, 2012, is affirmed insofar as appealed from, and it is further,

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

Joseph Vetrano (hereinafter the injured plaintiff) sustained injuries when he fell approximately 12 to 13 feet from a steel beam while working as an ironworker at a construction site in Farmingdale. At the time of the accident, he was employed by the third-party defendant Derek [*2]K. Miller Enterprises, Inc. (hereinafter Miller). The injured plaintiff, and his wife suing derivatively, commenced this action against J. Kokolakis Contracting, Inc. (hereinafter Kokolakis), the general contractor for the project. In September 2009, Kokolakis commenced a third-party action against the third-party defendant Canatal Industries, Inc. (hereinafter Canatal), the subcontractor it hired to erect the steelwork, and Miller, to which Canatal subcontracted the work, but thereafter, by stipulation dated December 6, 2009, agreed to discontinue the third-party action. Subsequently, the plaintiffs moved for summary judgment on the issue of liability on their cause of action alleging a violation of Labor Law § 240(1). Kokolakis recommenced the third-party action against Canatal and Miller. By order dated June 1, 2011, the Supreme Court denied the plaintiffs’ motion. The plaintiffs moved for leave to renew the motion and, separately, to sever the third-party action from the main action. By order dated January 24, 2012, the Supreme Court, in effect, granted that branch of the plaintiffs’ motion which was for leave to renew and, upon renewal, adhered to its original determination. The Supreme Court also denied the plaintiffs’ separate motion to sever the third-party action.

The plaintiffs demonstrated their prima facie entitlement to judgment as a matter of law on the Labor Law § 240(1) cause of action. In order to prevail on a cause of action pursuant to Labor Law § 240(1), a plaintiff must establish that an owner or contractor failed to provide appropriate safety devices at an elevated work site and that such violation of the statute was the proximate cause of his or her injuries (see Ramsey v Leon D. DeMatteis Constr. Corp., 79 AD3d 720, 722). Here, the injured plaintiff’s deposition testimony established that he had not been provided with appropriate safety devices that could have prevented his fall and that the lack of such devices was the proximate cause of the accident. Specifically, in order to perform his assigned task to establish connections between steel beams, the injured plaintiff walked along the top of a steel beam. He wore a safety harness with a hook that could be attached to a safety line. At the first location where he worked, he attached himself to a safety line. However, as he walked along the beam to a second location, about 20 feet away, no safety lines were available. Moreover, there was no safety netting below. The injured plaintiff slipped on what he believed was ice on the beam and fell to the floor below.

Contrary to Kokolakis’s contention, the plaintiffs’ original motion was sufficiently supported by the affidavit of the injured plaintiff’s coworker, who had personal knowledge of the facts (see Federal Fin. Co. v Levine, 281 AD2d 454, 455; CPLR 3212[b]). In any event, the failure to submit an affidavit by a person with knowledge of the facts is not necessarily fatal to a motion where, as here, the moving party submits other proof, such as deposition testimony with an attorney’s affirmation (see Alvarez v Prospect Hosp., 68 NY2d 320, 325; Olan v Farrell Lines, 64 NY2d 1092, 1093; Maragos v Sakurai, 92 AD3d 922, 923; Finnegan v Staten Is. R.T. Operating Auth., 251 AD2d 539, 540; Woods v Zik Realty Corp., 172 AD2d 606, 606).

Furthermore, the injured plaintiff’s unsigned but certified deposition transcript was admissible since, in submitting the transcript in support of his own motion, the plaintiff, in effect, adopted it as accurate (see Rodriguez v Ryder Truck, Inc., 91 AD3d 935, 936; Ashif v Won Ok Lee, 57 AD3d 700, 700). The deposition transcript of Bernard Mulligan, Kokolakis’s superintendent, was also admissible since, although unsigned, it was certified and Kokolakis did not challenge its accuracy in its opposing papers (see Boadu v City of New York, 95 AD3d 918, 919; Rodriguez v Ryder Truck, Inc., 91 AD3d at 936; Zalot v Zieba, 81 AD3d 935, 936; Bennett v Berger, 283 AD2d 374, 375). Kokolakis’s contention that Mulligan’s deposition testimony was insufficient to establish, prima facie, that Kokolakis was a general contractor within the meaning of Labor Law § 240(1) is without merit.

In opposition to the plaintiffs’ prima facie showing, Kokolakis and Miller failed to raise a triable issue of fact. Contrary to the plaintiffs’ contention, as a third-party defendant, Miller may properly raise the issue of whether the injured plaintiff’s conduct was the sole proximate cause of his fall (see CPLR 1008; JP Morgan Chase Bank, N.A. v Strands Hair Studio, LLC, 84 AD3d 1173, 1173). However, Miller failed to raise a triable issue of fact in that regard (see Gallagher v New York Post, 14 NY3d 83, 88-89; Andresky v Wenger Constr. Co., Inc., 95 AD3d 1247, 1249). Accordingly, upon renewal, the Supreme Court should have granted the plaintiffs’ motion for [*3]summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) (see Stein v Yonkers Contr., 244 AD2d 474, 475; Delaney v Spiegel Assoc., 225 AD2d 1102, 1102-1103; DiMuro v Town of Babylon, 210 AD2d 373, 374).

However, the Supreme Court properly denied the plaintiffs’ separate motion to sever the third-party action from the main action (cf. Singh v City of New York, 294 AD2d 422, 423).

Kokolakis’s and Miller’s remaining contentions are without merit, need not be reached, or are improperly raised for the first time on appeal.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Vittiglio v Gaurino            2011-10597         2012 NY Slip Op 08114    “Decided on November 28, 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.

 

2011-10597

(Index No. 10118/09)

 

 

[*1]Rose Vittiglio, appellant-respondent,

 

v

 

Rocco Gaurino, et al., appellants, Gina DeMarco, respondent. Steven R. Smith, Garden City, N.Y., for appellant-respondent.

 

 

 

 

 

Morris Duffy Alonso & Faley, New York, N.Y. (Anna J. Ervolina

and Andrea M. Alonso of counsel), for appellants.

Montfort, Healy, McGuire & Salley, Garden City, N.Y.

(Donald S. Neumann, Jr., and Jeffrey D.

Present of counsel), for respondent.

 

 

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Strauss, J.), dated October 11, 2011, as denied her motion pursuant to CPLR 4404(a) to set aside a jury verdict on the issue of liability finding the defendants Rocco Gaurino and Daniel Gaurino 100% at fault and the defendant Gina DeMarco 0% at fault and for judgment as a matter of law against all defendants, or, in the alternative, to set aside the jury verdict as contrary to the weight of the evidence and for a new trial on the issue of liability, and the defendants Rocco Gaurino and Daniel Gaurino separately appeal from so much of the same order as denied their separate motion pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of liability and for judgment as a matter of law, or, in the alternative, to set aside the jury verdict as contrary to the weight of the evidence and for a new trial on the issue of liability.

ORDERED that the order is affirmed, with one bill of costs payable to the defendant Gina DeMarco by the plaintiff and the defendants Rocco Gaurino and Daniel Gaurino, appealing separately and filing separate briefs.

A motion pursuant to CPLR 4404(a) to set aside a jury verdict and for judgment as a matter of law will be granted where there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusions reached by the jury on the basis of the evidence presented at trial (see Cohen v Hallmark Cards, 45 NY2d 493, 499; Linson v City of New York, 98 AD3d 1002). Additionally, 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).

Applying these principles here, there was a valid line of reasoning and permissible inferences by which the jury could have rationally concluded that the defendant Gina DeMarco was [*2]not negligent in the operation of her vehicle, and that the defendants Rocco Gaurino and Daniel Gaurino were 100% at fault for the subject accident (see Rahman v Smith, 40 AD3d 613; see generally Cohen v Hallmark Cards, 45 NY2d 493). Moreover, upon our review of the record, we find that the verdict was based upon a fair interpretation of the evidence presented to the jury and, thus, was not contrary to the weight of the evidence (see Lolik v Big V Supermarkets, 86 NY2d 744; Syndor v Home Depot U.S.A., Inc., 74 AD3d 1185, 1187-1188).

The parties’ remaining contentions are either without merit or not properly before this Court.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Amato v Amato            2011-10954         2012 NY Slip Op 08115    “Decided on November 28, 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.

 

2011-10954

(Docket No. O-9377-11)

 

 

[*1]In the Matter of Deborah L. Amato, appellant,

 

v

 

Raffaele A. Amato, Jr., respondent. Susan A. DeNatale, Mastic, N.Y., for appellant.

 

 

 

 

 

DECISION & ORDER

In a family offense proceeding pursuant to Family Court Act article 8, the petitioner appeals from an order of the Family Court, Suffolk County (Burke, Ct. Atty. Ref.), dated October 28, 2011, which, after a hearing, denied her petition and vacated all orders of protection issued against the respondent in this matter.

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 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”” (Matter of Richardson v Richardson, 80 AD3d 32, 43-44; see Matter of Medranda v Mondelli, 74 AD3d 972; Matter of Delano v Desimone, 60 AD3d 673, 673-674). Here, the Family Court was presented with the sharply conflicting testimony of the parties regarding the events that occurred on the subject date, and it chose to credit the respondent’s account in finding that a family offense had not been established (see e.g. Matter of Sepulveda v Perez, 90 AD3d 1057, 1058; Matter of Richardson v Richardson, 80 AD3d at 44; Matter of Khaykin v Kanayeva, 47 AD3d 817, 818). Since the court’s determination is supported by evidence in the record, we discern no basis to disturb it.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Armstead v Rice           “2012-02771,”    2012 NY Slip Op 08116    “Decided on November 28, 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.

 

2012-02771 DECISION, ORDER & JUDGMENT

 

 

[*1]In the Matter of Anthony Armstead, petitioner,

 

v

 

Kathleen M. Rice, etc., et al, respondents. Anthony Armstead, East Elmhurst, N.Y., petitioner pro se.

 

 

 

 

 

Kathleen M. Rice, District Attorney, Mineola, N.Y. (Robert A.

Schwartz and Jason R. Richards of counsel), respondent pro se.

 

 

Proceeding pursuant to CPLR article 78 in the nature of prohibition to prohibit the respondent Kathleen M. Rice, among others, from proceeding with an underlying criminal action entitled People v Armstead, commenced in the Supreme Court, Nassau County, under Indictment No. 950/10, 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 proceeding is dismissed as academic, without costs or disbursements.

The proceeding has been rendered academic, as the petitioner was sentenced on July 9, 2012, in the underlying criminal action.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Allen B. v Sproat          2011-03471         2012 NY Slip Op 08117    “Decided on November 28, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

REINALDO E. RIVERA, J.P.

ANITA R. FLORIO

LEONARD B. AUSTIN

SANDRA L. SGROI, JJ.

 

2011-03471

 

 

[*1]In the Matter of Allen B. (Anonymous), petitioner,

 

v

 

Christine A. Sproat, etc., et al., respondents.

 

 

 

 

 

Mental Hygiene Legal Service, Mineola, N.Y. (Lesley De Lia and

Dennis B. Feld of counsel), for petitioner.

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

(Susan Anspach of counsel), for respondents

Christine A. Sproat and Michael F.

Hogan.

 

 

DECISION & JUDGMENT

Proceeding pursuant to CPLR article 78 in the nature of a writ of prohibition to prohibit enforcement of a provision of an amended order of conditions of the Supreme Court, Dutchess County (Sproat, J.), dated December 16, 2010, which directed that should the petitioner fail to comply with any of the other conditions imposed in that amended order of conditions “”and refuse to appear for or comply with a psychiatric examination,”” the Commissioner of the New York State Office of Mental Health “”shall apply to the court for a Temporary Confinement Order for the purpose of conducting an effective psychiatric examination in a secure facility.””

ADJUDGED that the petition is granted, on the law, without costs or disbursements, and the respondents are prohibited from enforcing or taking action to enforce the provision of the amended order of conditions dated December 16, 2010, which directed that should the petitioner fail to comply with any of the other conditions imposed in that order “”and refuse to appear for or comply with a psychiatric examination,”” the Commissioner of the New York State Office of Mental Health “”shall apply to the court for a Temporary Confinement Order for the purpose of conducting an effective psychiatric examination in a secure facility.””

For the reasons stated in Matter of Robert T. (Anonymous) v Sproat (AD3d [decided herewith]), the CPLR article 78 petition seeking to prohibit the respondents from enforcing or taking action to enforce the provision of the order of conditions which directed that, should the petitioner fail to comply with any of the other conditions imposed in that order “”and refuse to appear for or comply with a psychiatric examination,”” the Commissioner of the New York State Office of Mental Health “”shall apply to the court for a Temporary Confinement Order for the purpose of conducting an effective psychiatric examination in a secure facility”” is granted.

FLORIO, AUSTIN and SGROI, JJ., concur.

RIVERA, J.P., dissents and votes to deny the petition and dismiss the proceeding for the reasons stated in his dissenting memorandum in Matter of Robert T. (Anonymous) v Sproat (AD3d [decided herewith]). [*2]

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Bell v City of New York              2011-08792         2012 NY Slip Op 08118    “Decided on November 28, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

WILLIAM F. MASTRO, J.P.

PETER B. SKELOS

CHERYL E. CHAMBERS

SANDRA L. SGROI, JJ.

 

2011-08792

(Index No. 8566/11)

 

 

[*1]In the Matter of Joseph Bell, respondent,

 

v

 

City of New York, appellant.

 

 

 

 

 

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

(Pamela Seider Dolgow, Regina Shulimovich, and Lisa A. Giunta of

counsel), for appellant.

Costello & Costello, P.C. (Arnold E. DiJoseph, P.C., New

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

respondent.

 

 

DECISION & ORDER

In a proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim, the City of New York appeals from an order of the Supreme Court, Kings County (Ash, J.), dated August 12, 2011, which granted the petition.

ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, and the petition is denied.

The Supreme Court improvidently exercised its discretion in granting the petition for leave to serve a late notice of claim. The petitioner failed to demonstrate a reasonable excuse for the failure to serve a timely notice of claim and for the delay in filing the petition (see Matter of Dube v City of New York, 158 AD2d 457). The petitioner’s ignorance of the law and late retention of counsel did not constitute reasonable excuses (see Matter of Taylor v County of Suffolk, 90 AD3d 769, 770; Matter of Wright v City of New York, 66 AD3d 1037, 1038; Matter of Ealey v City of New York, 204 AD2d 720). Furthermore, the petitioner failed to submit any medical evidence to support his assertion that he was incapacitated to such an extent that he could not have complied with the statutory requirement to serve a timely notice of claim (see Matter of Taylor v County of Suffolk, 90 AD3d at 770; Matter of Wright v City of New York, 66 AD3d at 1038; Matter of Portnov v City of Glen Cove, 50 AD3d 1041; Matter of Papayannakos v Levittown Mem. Special Educ. Ctr., 38 AD3d 902).

Contrary to the petitioner’s contention, the City did not acquire actual knowledge of the essential facts constituting the claim within 90 days after the accident or a reasonable time thereafter. The defect indicated on a map filed with the New York City Department of Transportation by the Big Apple Pothole and Sidewalk Protection Corporation more than nine years before the accident did not suffice to give the City actual knowledge of the essential facts underlying the petitioner’s present claim or his theory of liability against the City (see Matter of Khalid v City of New York, 91 AD3d 779, 780; Matter of Konstantinides v City of New York, 278 AD2d 235; Matter of Rios v City of New York, 180 AD2d 801, 802). In addition, the petitioner failed to demonstrate that his delay of more than four months in commencing this proceeding would not [*2]substantially prejudice the City in maintaining its defense, given the transitory nature of the sidewalk defect (see Matter of Valentine v City of New York, 72 AD3d 981, 982; Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d 138, 153; Matter of Papayannakos v Levittown Mem. Special Educ. Ctr., 38 AD3d at 903; Matter of Gofman v City of New York, 268 AD2d 588).

The petitioner improperly asserted an additional excuse for the delay for the first time in a reply affidavit and, therefore, that excuse could not properly be considered (see Matter of Wright v City of New York, 99 AD3d 717; Matter of Cali v City of Poughkeepsie, 84 AD3d 1229; Fenner v County of Nassau, 80 AD3d 555, 556).

MASTRO, J.P., SKELOS, CHAMBERS and SGROI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Biton v Meer “2012-08923,”    2012 NY Slip Op 08119    “Decided on November 28, 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.

 

2012-08923 DECISION, ORDER & JUDGMENT

 

 

[*1]In the Matter of Danielle Biton, petitioner,

 

v

 

Ameena Meer, et al., respondents. Danielle Biton, New York, N.Y., petitioner pro se.

 

 

 

 

 

Proceeding pursuant to CPLR article 78 in the nature of mandamus, inter alia, to compel the respondents to “”remove all false representations that have been made”” by them in certain proceedings, and application by the petitioner to prosecute the proceeding as a poor person.

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 proceeding is dismissed, without costs or disbursements.

This Court does not have subject matter jurisdiction to entertain this proceeding (see CPLR 506[b]; 7804[b]).

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Catherine V. D. (Rachel G.)     2012-03337         2012 NY Slip Op 08120    “Decided on November 28, 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.

 

2012-03337

2012-05373

(Docket No. N-8589-11)

 

 

[*1]In the Matter of Catherine V. D. (Anonymous). Nassau County Department of Social Services, petitioner-respondent;

 

and

 

Rachel G. (Anonymous), appellant, et al., respondent.

 

 

 

 

 

Seidner & Associates, P.C., Westbury, N.Y. (Matthew S. Seidner

of counsel), for appellant.

John Ciampoli, County Attorney, Mineola, N.Y. (Robert F. Van

der Waag of counsel), for petitioner-

respondent.

Edward J. Emanuele, Mineola, N.Y., attorney for the child.

 

 

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 10, the mother appeals from (1) an order of the Family Court, Nassau County (Dane, J.), dated March 15, 2012, which denied her motion for summary judgment dismissing the petition insofar as asserted against her, and (2) an order of the same court dated May 2, 2012, which denied her motion for leave to renew and reargue her motion for summary judgment dismissing the petition insofar as asserted against her.

ORDERED that the order dated March 15, 2012, is affirmed, without costs or disbursements; and it is further,

ORDERED that the appeal from so much of the order dated May 2, 2012, as denied that branch of the mother’s motion which was for leave to reargue is dismissed, without costs or disbursements, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order dated May 2, 2012, is affirmed insofar as reviewed, without costs or disbursements.

The Family Court properly denied the mother’s motion for summary judgment dismissing the petition insofar as asserted against her. In opposition to the mother’s prima facie showing that she had participated in planning for the subject child’s care, the petitioner submitted evidence that put into dispute a number of relevant facts, including the level of the mother’s cooperation with the petitioner and the New Jersey Division of Youth and Family Services, and the nature of the subject child’s needs. As triable issues of fact remained, the mother was not entitled to summary judgment (cf. Matter of Suffolk County Dept. of Social Servs. v James M., 83 NY2d 178, 182). [*2]

The Family Court also properly denied that branch of the mother’s motion which was for leave to renew. A motion for leave to renew “”shall be based upon new facts”” and “”shall contain reasonable justification for the failure to present such facts on the prior motion”” (CPLR 2221[e][3]; see Capozzoli v Capozzoli, 81 AD3d 584, 585). A motion for leave to renew is addressed to the sound discretion of the motion court, and the requirement that a motion for leave to renew be based upon newly discovered facts is a flexible one (see Matter of Gold v Gold, 53 AD3d 485, 487). Where no reasonable justification is given, the court must deny the motion (see Greene v New York City Hous. Auth., 283 AD2d 458, 459).

Here, in support of that branch of her motion which was for leave to renew, the mother provided certain progress notes made by the petitioner’s caseworkers regarding their discussions with the mother about the subject child. As the Family Court noted, however, the mother did not provide a sufficient justification for her failure to submit those notes with her summary judgment motion. Indeed, although the mother did not obtain the notes until after she filed her motion, she did not show that she made any effort to serve discovery requests or otherwise obtain relevant documents from the petitioner before she made her original motion. Under those circumstances, the Family Court did not improvidently exercise its discretion in denying the subject branch of the mother’s motion, as “”[a] motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation”” (Worrell v Parkway Estates, LLC, 43 AD3d 436, 437).

SKELOS, J.P., FLORIO, LEVENTHAL and HALL, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Jocelyn D. (Maria D.)  2012-02504         2012 NY Slip Op 08121    “Decided on November 28, 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.

 

2012-02504

(Docket No. N-37313-10)

 

 

[*1]In the Matter of Jocelyn D. (Anonymous). Administration for Children’s Services, petitioner-respondent;

 

and

 

Maria D. (Anonymous), appellant, et al., respondent.

 

 

 

 

 

Lewis S. Calderon, Jamaica, N.Y., for appellant.

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

(Francis F. Caputo and Scott Shorr of

counsel), for petitioner-respondent.

Steven Banks, New York, N.Y. (Tamara A. Steckler and Elana

Roffman of counsel), attorney for the

child.

 

 

DECISION & ORDER

In a child protective proceeding pursuant to Family Court Act article 10, the mother appeals, as limited by her brief, from stated portions of an order of fact-finding and disposition of the Family Court, Kings County (Danoff, J.), dated February 21, 2012, which, after fact-finding and dispositional hearings, inter alia, found that she neglected the subject child.

ORDERED that the order of fact-finding and disposition is affirmed insofar as appealed from, without costs or disbursements.

Contrary to the mother’s contention, the Family Court’s finding that she neglected the subject child was supported by a preponderance of the evidence showing that she knew or should have known that the child’s father was inflicting excessive corporal punishment on the child, and that the mother failed to take any steps to protect her (see Family Ct Act §§ 1012[f][i][B]; 1046[b][i]; Matter of Iouke H. [Terrence H.]., 94 AD3d 889, 891; Matter of Alysha M., 24 AD3d 255).

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

ENTER:

Aprilanne Agostino [*2]

Clerk of the Court”

Matter of Foreclosure of Tax Liens (Alberto Castro)         2011-06314         2012 NY Slip Op 08122    “Decided on November 28, 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.

 

2011-06314

(Index No. 10241/07)

 

 

[*1]In the Matter of Foreclosure of Tax Liens. County of Rockland, petitioner/counterclaim respondent/defendant-respondent;

 

and

 

Alberto Castro, et al., respondents/counterclaim respondents/ defendants-respondents; Luther Guthrie, intervenor/ counterclaim petitioner/plaintiff-appellant; Rockland County Legislature, et al., additional counterclaim respondents/defendants-respondents.

 

 

 

 

 

Kevin T. Conway, Spring Valley, N.Y. (David Ascher of counsel),

for intervenor/counterclaim petitioner/plaintiff-appellant.

John S. Edwards, New City, N.Y., for respondents/counterclaim

respondents/ defendants-respondents.

 

 

DECISION & ORDER

In a proceeding to foreclose a tax lien pursuant to RPTL article 11, in which Luther Guthrie intervened and thereupon counterclaimed, inter alia, (a) pursuant to CPLR article 78 to review a resolution of the Rockland County Legislature dated September 7, 2010, which permitted former property owners whose properties had been transferred to the County of Rockland in a RPTL article 11 in rem tax foreclosure proceeding and sold at a public auction on June 9, 2010, by the County of Rockland as a consequence of delinquencies in the payment of real property taxes, among other things, to redeem their respective properties, and (b) for a judgment declaring that Luther Guthrie, as the highest bidder at the public auction on property formerly belonging to Alberto Castro and Sandra Castro, is entitled to delivery of the deed to the subject property, permanently enjoining the County of Rockland from reinstating ownership of the subject property to Alberto Castro and Sandra Castro, and directing the County of Rockland to execute and deliver the deed to the subject property to Luther Guthrie upon his payment of the balance of the purchase price, Luther Guthrie appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Rockland County (Jamieson, J.), entered May 11, 2011, as denied the petition pursuant to CPLR article 78, in effect, dismissed the counterclaim, and determined that the resolution was validly enacted.

ORDERED that the judgment is affirmed insofar as appealed from, with one bill of costs to Alberto Castro and Sandra Castro, payable by Luther Guthrie.

Luther Guthrie was the highest bidder for certain real property at a tax foreclosure auction sale conducted by the County of Rockland on June 9, 2010. That property had been owned by Alberto Castro and Sandra Castro, who had become delinquent in the payment of their real property taxes.

Paragraph 18 of the terms of sale of the subject real property, as set forth in the public [*2]auction notice of sale, which Guthrie admittedly received, unambiguously stated that “”[a]ll bids will be subject to the approval of the Legislature of the County of Rockland. The County does not guarantee that such approval will be obtained.”” The terms of sale also provided that “”[t]he County of Rockland reserves the right to . . . reject any or all bids and cancel and/or postpone sales at any time before the actual delivery of deeds,”” a right which, if invoked, was required to be exercised within 45 days of the Legislature’s approval of the bids. Moreover, at the auction, each successful bidder executed a memorandum of purchase, which recited that the successful bidder “”ha[s] no legal or beneficial ownership interest of any nature whatsoever in the property.”” Notably, the auction documents did not impose any limits on the Rockland County Legislature’s discretion to approve or disapprove a sale.

The legislative resolution at issue, in effect, gave the former owners of the properties that were sold at the June 9, 2010, public auction the opportunity to redeem their interests in their respective properties, and to vacate any court orders or deeds so that title reverted back to them if they timely moved for such relief and paid the total amount of the delinquent taxes on the property, inclusive of interest, penalties, and costs. The adoption of the resolution was a proper exercise of the Legislature’s discretion (see Matter of Toussie v County of Suffolk, 26 AD3d 506, 507), even if the resolution thereby effectively nullified Guthrie’s high bid on the subject property and cancelled the sale. Contrary to Guthrie’s contention, the Rockland County Legislature’s resolution was rationally based on legitimate economic concerns.

Although the cancellation of a sale may seem unfair to a successful bidder, this prospect is one of the clearly stated risks of bidding at a public auction, and was clearly articulated prior to the bidding (id. at 508; see L.J.B. Corp. v City of New York, 182 AD2d 485; Min-Lee Assoc. v City of New York, 28 AD2d 553, affd 27 NY2d 790).

Guthrie’s remaining contentions are without merit.

ANGIOLILLO, J.P., BALKIN, LOTT and ROMAN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Holman v Beaulieu      2011-11967         2012 NY Slip Op 08123    “Decided on November 28, 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.

 

2011-11967

2012-01598

(Docket Nos. O-4982-10, V-5122-10/10A, V-6914-10)

 

 

[*1]In the Matter of Patricia Holman, appellant,

 

v

 

Brian L. Beaulieu, respondent. (Proceeding Nos. 1 and 2)

 

 

 

In the Matter of Brian L. Beaulieu, respondent,

 

v

 

Patricia Holman, appellant. (Proceeding No. 3)

 

 

 

 

 

Bondi Iovino & Fusco, Garden City, N.Y. (Anthony F. Iovino of

counsel), for appellant.

Brian L. Beaulieu, New Haven, Ct., respondent pro se.

Eileen T. Stapleton, Levittown, N.Y., attorney for the child.

 

 

DECISION & ORDER

In related proceedings pursuant to Family Court Act articles 6 and 8, the mother appeals, as limited by her brief, from (1) stated portions of an order of the Family Court, Nassau County (Stack, J.H.O.), dated November 4, 2011, which, inter alia, after a hearing, dismissed her family offense petition, and, in effect, denied her petition, among other things, for sole custody of the parties’ child, and (2) stated portions of an order of the same court dated December 22, 2011, which, inter alia, awarded the father visitation with the child on three weekends per month and on certain holidays, and directed her to share in transporting the child to the father’s home for visitation.

ORDERED that the orders are affirmed insofar as appealed from, without costs or disbursements.

A family offense must be established by a “”fair preponderance of the evidence”” (Family Ct Act § 832). Here, the evidence at a hearing, which included inconsistent out-of-court statements by the subject child, and an absence of supporting evidence, did not satisfy that burden. Further, the determination of the Family Court, in effect, denying the mother’s petition, inter alia, for sole custody of the subject child has a sound and substantial basis in the record (see Matter of Conforti v Conforti, 46 AD3d 877, 877-878). Contrary to the mother’s contention, the Family Court had the authority to modify the father’s visitation schedule upon consideration of his petition for sole custody (see Matter of Albanese v Albanese, 44 AD3d 1117). On this issue, the Family Court possessed all relevant information necessary to make an informed determination in the best interest of the child (see Matter of Cardona v Vantassel, 96 AD3d 1052; Matter of McLean v Simpson, 82 [*2]AD3d 1101).

The mother’s remaining contentions are without merit.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Hunter             2011-02462         2012 NY Slip Op 08124    “Decided on November 28, 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.

 

2011-02462

 

 

[*1]In the Matter of Blanche Hunter, deceased. JPMorgan Chase Bank, N.A., etc., appellant- respondent; Margaret Hunter, et al., objectants- respondents-appellants; Eric T. Schneiderman, etc., objectant-respondent. (File No. 30/73)

 

 

 

 

 

Ruskin Moscou Faltishek, P.C., Uniondale, N.Y. (C. Raymond

Radigan of counsel), and Harris Beach PLLC, Pittsford, N.Y. (Paul

J. Yesawich III and Laura W. Smalley of counsel), for appellant-

respondent (one brief filed).

Gates & Adams, P.C., Rochester, N.Y. (Anthony J. Adams, Jr.,

of counsel), for objectants-

respondents-appellants.

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

(Richard Dearing and Brian A. Sutherland of

counsel), objectant-respondent pro se.

 

 

DECISION & ORDER

In a probate proceeding in which JPMorgan Chase Bank, N.A., petitioned to judicially settle its first intermediate account as cotrustee of a testamentary trust, the petitioner appeals from stated portions of a decree of the Surrogate’s Court, Westchester County (Scarpino, Jr., S.), dated January 10, 2011, which, upon a decision of the same court dated March 31, 2010, made after a nonjury trial, inter alia, sustained certain objections related to its retention in the subject trust of a concentration of common stock in Eastman Kodak Company, and thereupon imposed a surcharge against it in the total principal sum of $4,322,412.40, with statutory interest, and the objectants Margaret Hunter and Pomona College cross-appeal from stated portions of the same decree which, inter alia, dismissed certain of their objections related to the petitioner’s retention in the subject trust of a concentration of common stock in Eastman Kodak Company, and thereupon imposed a surcharge against the petitioner in the total principal sum of only $4,322,412.40.

ORDERED that the decree is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

The petitioner, JPMorgan Chase Bank, N.A., served as the executor of the estate of the decedent, Blanche D. Hunter, as well as a trustee of two separate testamentary trusts established by the decedent, referred to as the Eighth (A) Trust, and the Eighth (B) Trust. Following the probate of the decedent’s last will and testament in 1973, and the settlement of the petitioner’s account as executor of the decedent’s estate, the subject trusts were funded in 1977 almost entirely with stock in the Eastman Kodak Company (hereinafter Kodak) that was held by the estate. Pursuant to the [*2]terms of the trusts, the corpus of the Eighth (A) Trust was transferred to the Eighth (B) Trust following the death of the Eighth (A) Trust beneficiary in 1980. At issue on this appeal is the propriety of the petitioner’s management of the Eighth (B) Trust, which was established for the benefit of the decedent’s granddaughter, Pamela Townley Creighton, who is now deceased and has been substituted as an objectant in these proceedings by Pomona College, which has obtained a vested interest in the Eighth (B) Trust. We are also asked to determine whether the petitioner violated the prudent-person rule of investment and the Prudent Investor Act (EPTL 11-2.3[a]) by maintaining a concentration of Kodak stock in the Eighth (B) Trust for more than 20 years, during which period the value of the Kodak stock declined precipitously. Following a nonjury trial on the petition for an intermediate accounting in connection with the Eighth (B) Trust, and the objections filed by the objectants, the Surrogate’s Court held that the petitioner violated the prudent-person rule of investment for the accounting period prior to January 1, 1995, as well as the Prudent Investor Act for the accounting period thereafter, by maintaining the concentration of Kodak stock in the Eighth (B) Trust for more than 20 years, and that the petitioner should have diversified the trust portfolio no later than July 31, 1987, by selling at least 95% of the Kodak stock at that time. Accordingly, the Surrogate’s Court sustained several objections and dismissed certain others, and imposed a surcharge on the petitioner.

“”In reviewing a determination made after a nonjury trial, the power of this Court is as broad as that of the trial court, and we may render a judgment we find warranted by the facts, bearing in mind that in a close case, the trial judge had the advantage of seeing the witnesses”” (Marini v Lombardo, 79 AD3d 932, 933; see Campbell v Campbell, 50 AD3d 614, 615). In exercising this power, we find no reason to disturb the Surrogate’s Court’s determination that the petitioner violated both the prudent-person rule of investment and the Prudent Investor Act during the relevant time periods by maintaining the concentration of Kodak stock in the Eighth (B) Trust for more than 20 years. Contrary to the petitioner’s contention, the record supports the findings made by the Surrogate’s Court that the petitioner never formulated any investment plan for the trust that included diversification of the concentration of Kodak stock, that it acted contrary to its own internal policies, which restrict the retention of any one stock unless certain circumstances existed, none of which were present here, and that it failed to establish that it took steps to determine whether it was in the interests of the beneficiaries to retain nondiversified holdings in the trust in light of the purposes and terms of the trust and the provisions of the governing instrument (see EPTL 11-2.3[b][3][C]; Matter of Janes, 90 NY2d 41; Matter of Saxton, 274 AD2d 110; Matter of Rowe, 274 AD2d 87, 90-91; cf. Matter of HSBC Bank USA, N.A. [Knox], 98 AD3d 300, lv denied 98 AD3d 1327). Accordingly, the Surrogate’s Court correctly imposed a surcharge upon the petitioner under these circumstances.

There is no merit the parties’ remaining contentions, including those addressed to the amount of the surcharge.

ANGIOLILLO, J.P., BALKIN, LOTT and ROMAN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Shira L. (Zindel L.)        2012-02777         2012 NY Slip Op 08125    “Decided on November 28, 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.

 

2012-02777

(Docket Nos. V-05442-10, V-05443-10, V-05444-10, and V-14882-10)

 

 

[*1]In the Matter of Shira L. (Anonymous), appellant,

 

and

 

Zindel L. (Anonymous), respondent. Law Office of Brynde Berkowitz, P.C., Woodmere, N.Y., for appellant. Jay C. Shoulson, Long Island City, N.Y., for respondent. Roberta Chambers, Queens Village, N.Y., attorney for the children Aliza and Shlomo. Eric Perlmutter, Jamaica, N.Y., attorney for the child Azriel.

 

 

 

 

 

DECISION & ORDER

In related custody and visitation proceedings pursuant to Family Court Act article 6, the mother appeals, by permission, from an order of the Family Court, Queens County (Hunt, J.), dated March 20, 2012, which awarded the father temporary unsupervised visitation with the parties’ son Azriel.

ORDERED that the order is affirmed, with costs.

The Family Court did not improvidently exercise its discretion in granting the father temporary unsupervised visitation with the parties’ son Azriel. Its determination had a sound and substantial basis in the record (see Matter of Boggio v Boggio, 96 AD3d 834; Matter of DeSimone v Delano, 94 AD3d 759; Matter of Crowder v Austin, 90 AD3d 753). The Family Court possessed adequate relevant information to enable it to make an informed and provident determination with respect to the best interests of that child and, therefore, an evidentiary hearing was not necessary to render a temporary visitation determination (see Matter of Donovan C., 65 AD3d 1041; Bibas v Bibas, 62 AD3d 924; McAvoy v Hannigan, 41 AD3d 791; Assini v Assini, 11 AD3d 417; Matter of Levande v Levande, 10 AD3d 723).

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

ENTER: [*2]

Aprilanne Agostino

Clerk of the Court”

Matter of Lancia               2012-06817         2012 NY Slip Op 08126    “Decided on November 28, 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

SANDRA L. SGROI, JJ.

 

2012-06817

 

 

[*1]In the Matter of Maurizio Lancia, an attorney and counselor-at-law. Grievance Committee for the Ninth Judicial District, petitioner; Maurizio Lancia, respondent. (Attorney Registration No. 2414407)

 

 

 

Motion by the Grievance Committee for the Ninth Judicial District to strike the respondent’s name from the roll of attorneys and counselors-at-law, pursuant to Judiciary Law § 90(4), based upon his conviction of a felony. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on June 26, 1991. Gary L. Casella, White Plains, N.Y. (Forrest Strauss of counsel), for petitioner.

 

 

OPINION & ORDER

PER CURIAM.On October 18, 2010, the respondent pleaded guilty in the United States District Court for the District of Connecticut to count 33 of a 38-count indictment, to wit, fraud by wire, in violation of 18 USC § 1343. The respondent admitted under oath that he had participated in a scheme and artifice to defraud and to obtain money and property by means of materially false and fraudulent pretenses. Specifically, the respondent admitted that he knowingly and wilfully participated in a mortgage fraud scheme and that, for purposes of executing this scheme, the mails and wires had been used by him and others, who caused wired funds to be sent in connection with the purchase of certain real property.

On April 3, 2011, the respondent was sentenced to 27-months imprisonment, two-years post-incarceration supervised release, a Special Assessment of $100, restitution in the amount of $135,366.07, and forfeiture in the amount of $2,428.

As stated by the Court of Appeals in Matter of Margiotta (60 NY2d 147, 150):

 

 

 

 

“”The Judiciary Law provides for automatic disbarment when an attorney is convicted of a felony. Under this section, an offense committed in any other State, district or territory of the United States where it is classified as a felony is determined to be a felony when it would constitute a felony in this state.’ (Judiciary Law § 90, subd 4, par e.) For purposes of this determination, the felony in the other jurisdiction need not be a mirror image of the New York felony, precisely corresponding in every detail, but it must have essential similarity.”” [*2]

The federal felony of fraud by wire in violation of 18 USC § 1343 has been held to be essentially similar to the New York felonies of grand larceny in the second degree under Penal Law § 155.40 and scheme to defraud in the first degree under Penal Law § 190.65 (see Matter of Doumazios, 88 AD3d 442; Matter of Caputo, 88 AD3d 264; Matter of Fazio, 35 AD3d 33).

By virtue of his felony conviction, the respondent was automatically disbarred and ceased to be an attorney pursuant to Judiciary Law § 90(4)(a).

The respondent has taken no position with respect to the motion by the Grievance Committee for the Ninth Judicial District (hereinafter the Grievance Committee) to strike his name from the roll of attorneys and counselors-at-law, pursuant to Judiciary Law § 90(4)(b). Accordingly, the motion is granted to reflect the respondent’s disbarment as of October 18, 2010.

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

ORDERED that the Grievance Committee’s motion is granted; and it is further,

ORDERED that pursuant to Judiciary Law § 90, the respondent, Maurizio Lancia, is disbarred, effective October 18, 2010, and his name is stricken from the roll of attorneys and counselors-at-law; and it is further,

ORDERED that the respondent, Maurizio Lancia, 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, Maurizio Lancia, 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 the respondent, Maurizio Lancia, 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 Maio v DeCrescenzo  2011-08885         2012 NY Slip Op 08127    “Decided on November 28, 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.

 

2011-08885

(Docket Nos. V-4427-09/09B, V-4428-09/09B)

 

 

[*1]In the Matter of Frank C. Maio, appellant,

 

v

 

Jennifer A. DeCrescenzo, respondent. Gail Jacobs, Great Neck, N.Y., for appellant. Donna M. McCabe, East Atlantic Beach, N.Y., for respondent. James E. Flood, Jr., Massapequa, N.Y., attorney for the child.

 

 

 

 

 

DECISION & ORDER

In a visitation proceeding pursuant to Family Court Act article 6, the father appeals, as limited by his brief, from so much of an order of the Family Court, Nassau County (Bennett, J.), dated November 30, 2011, as, upon a decision of the same court dated September 9, 2011, made after a hearing, denied that branch of his petition which was to modify the visitation provisions set forth in a so-ordered stipulation dated November 19, 2008, which was incorporated but not merged into the parties’ judgment of divorce dated March 23, 2009, so as to award him unsupervised visitation with the parties’ son in Florida.

ORDERED that on the Court’s own motion, the notice of appeal from the decision dated September 9, 2011, is deemed a premature notice of appeal from the order dated November 30, 2011 (see CPLR 5520[c]); and it is further,

ORDERED that the order dated November 30, 2011, is affirmed insofar as appealed from, without costs or disbursements.

Contrary to the father’s contention, the Family Court providently exercised its discretion in denying that branch of his petition which was for unsupervised visitation with the parties’ son in Florida. At the time of the filing of the subject petition, the son was three years old and had only experienced supervised visitation with the father for one hour each week in New York. “”The paramount concern in any custody or visitation determination is the best interests of the child, under the totality of the circumstances”” (Matter of Boggio v Boggio, 96 AD3d 834, 835; see Eschbach v Eschbach, 56 NY2d 167, 171; Friederwitzer v Friederwitzer, 55 NY2d 89, 94; Galanti v Kraus, 85 AD3d 723, 724; Matter of Alexander v Alexander, 62 AD3d 866, 866-867). Here, the father currently has some unsupervised visitation with the son in New York, and it is in the son’s best interests to have gradually increasing unsupervised visitation with the father in New York (cf. Matter of Aguirre v Romano, 73 AD3d 912, 914-915). [*2]

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Minkowicz v City of New York                2011-08409         2012 NY Slip Op 08128    “Decided on November 28, 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.

 

2011-08409

(Index No. 31670/10)

 

 

[*1]In the Matter of Chana Minkowicz, respondent,

 

v

 

City of New York, appellant.

 

 

 

 

 

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

(Francis F. Caputo and Peter A. Mancuso of counsel), for appellant.

The Berkman Law Office, LLC, Brooklyn, N.Y. (Aaron

Solomon of counsel), for respondent.

 

 

DECISION & ORDER

In a proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim, the City of New York appeals from an order of the Supreme Court, Kings County (Velasquez, J.), dated March 18, 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.

The Supreme Court improvidently exercised its discretion in granting the petition for leave to serve a late notice of claim. The petitioner did not demonstrate a reasonable excuse for the failure to serve a timely notice of claim and for the approximately one-year delay in filing the petition. The petitioner’s ignorance of the requirement to serve the notice of claim within 90 days after the claim arose did not constitute a reasonable excuse (see Meyer v County of Suffolk, 90 AD3d 720, 721; Matter of Bush v City of New York, 76 AD3d 628; Matter of Dancy v Poughkeepsie Hous. Auth., 220 AD2d 413). Furthermore, the petitioner’s assertions that she did not immediately appreciate the nature and severity of her injury and that she was caring for her seriously ill infant son were unavailing without supporting medical evidence (see Matter of Werner v Nyack Union Free School Dist., 76 AD3d 1026; Matter of Wright v City of New York, 66 AD3d 1037, 1038; Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d 138, 151; Matter of Ridley v New York City Tran. Auth., 38 AD2d 973).

In addition, the City did not acquire actual knowledge of the essential facts constituting the claim within the 90-day statutory period or within a reasonable time thereafter (see General Municipal Law § 50-e[5]; Matter of Wright v City of New York, 99 AD3d 717; Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d at 147; Casias v City of New York, 39 AD3d 681, 682; cf. Matter of Battle v City of New York, 261 AD2d 614, 615). Moreover, the petitioner failed to establish that the delay in seeking leave to serve a late notice of claim would not substantially prejudice the City in maintaining its defense on the merits, given the passage of time and the transient nature of the pothole in the street over which the petitioner allegedly tripped and [*2]fell (see Zarello v City of New York, 61 NY2d 628, 630; Matter of Wright v City of New York, 99 AD3d 717; Matter of Mitchell v Town of Greenburgh, 96 AD3d 852; Matter of Khalid v City of New York, 91 AD3d 779, 780; Matter of Aguilar v Town of Islip, 294 AD2d 358, 359; Caselli v City of New York, 105 AD2d 251, 253).

The petitioner’s remaining contentions pertain to matter dehors the record and have not been considered in the determination of the appeal (see Matter of Tonissen v Huntington U.F.S.D., 80 AD3d 704, 706).

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Mitchell v DiMango    “2012-09539,”    2012 NY Slip Op 08129    “Decided on November 28, 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.

 

2012-09539 DECISION, ORDER & JUDGMENT

 

 

[*1]In the Matter of Stephen T. Mitchell, petitioner,

 

v

 

Patricia DiMango, etc., et al., respondents. Stephen T. Mitchell, South Orange, New Jersey, petitioner pro se.

 

 

 

 

 

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

Ferrell of counsel), for respondents.

 

 

Proceeding pursuant to CPLR article 78, inter alia, in the nature of prohibition to prohibit the respondents from proceeding with an underlying criminal prosecution entitled People v Mitchell, pending in the Supreme Court, Kings County, under Indictment No. 4743/2010, and in the nature of mandamus to compel the respondents to allow him to subpoena certain information, and application to waive the filing fee imposed by CPLR 8022(b).

ORDERED that the application to waive the filing fee imposed by CPLR 8022(b) is granted; 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 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.

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

ENTER:

Aprilanne Agostino [*2]

Clerk of the Court”

Matter of Neely v Primus             2011-08200         2012 NY Slip Op 08130    “Decided on November 28, 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

SHERI S. ROMAN, JJ.

 

2011-08200

(Docket Nos. V-5841-10, V-5842-10)

 

 

[*1]In the Matter of Gregory Neely, appellant,

 

v

 

Theresa I. Primus, respondent. (Proceeding No. 1)

 

 

 

In the Matter of Theresa I. Primus, respondent,

 

v

 

Gregory Neely, appellant. (Proceeding No. 2)

 

 

 

 

 

Patrick Christopher, Howard Beach, N.Y., for appellant.

Simonetti & Associates, Woodbury, N.Y. (Regina A. Matejka

of counsel), for respondent.

Patricia Manzo, Jericho, N.Y., attorney for the children.

 

 

DECISION & ORDER

In related custody and visitation proceedings pursuant to Family Court Act article 6, the father appeals from so much of an order of the Family Court, Nassau County (Stack, J.H.O.), dated July 26, 2011, as, after a hearing, denied, as academic, his petition to prohibit the mother from relocating to Monroe, New York, with the subject children, and fixed a visitation schedule.

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

On October 31, 2008, the parties entered into a stipulation of settlement in which they agreed to share joint legal custody of their two children. Under the terms of the stipulation, the mother was to have residential custody of the children, and the father was to have visitation, inter alia, on Wednesday evenings and alternate weekends. The stipulation of settlement was incorporated but not merged in the parties’ ensuing judgment of divorce.

In June 2010, the mother moved with the children to Monroe, New York. The father admits that he consented to the relocation, provided that his visitation with the children would “”remain intact pursuant to the stipulation of settlement and judgment of divorce””. However, the father thereafter filed petitions in the Family Court to prevent the relocation and enforce the parties’ original visitation schedule, and the mother moved in the Supreme Court, Nassau County, for an order of protection against the father. When the parties appeared before the Supreme Court on August 5, 2010, the court encouraged them to try to agree upon a more convenient location to drop off and pick up the children for visitation than the mother’s former residence in Brooklyn. The parties then entered into a stipulation agreeing to change the drop-off and pick-up location, and move the father’s pick-up times to later in the evening. At a subsequent appearance in Family Court on March 14, 2011, after a discussion with the attorneys for the parties, the Family Court changed the pick-up location for the father’s Wednesday evening visits with the children. The Family Court subsequently conducted a hearing on the issue of visitation, and established a new visitation schedule [*2]which left the father’s Wednesday evening and alternate weekend visitation intact, but changed the location where the father was to drop off the children after weekend visits in an effort to equalize the distance each parent would drive.

Contrary to the father’s contention, under the circumstances of this case, the Family Court was not required to hold a hearing to determine whether relocation was in the best interests of the children. The record establishes that the father consented to the relocation upon the condition that his visitation with the children remain intact, and that he thereafter voluntarily entered into a stipulation on August 5, 2010, which changed the location for the drop-off and pick-up of the children, and moved his pick-up times to later in the evening. The father’s claim that the condition upon which he consented to relocation was effectively destroyed on March 14, 2011, when the Family Court changed the pick-up location for his Wednesday evening visits, is without merit. The change in the Wednesday evening pick-up location did not materially impair the father’s visitation rights.

Furthermore, the Family Court providently exercised its discretion (see Matter of Thomas v Thomas, 35 AD3d 868) in establishing a new visitation schedule after the hearing, which adhered to the original visitation schedule set forth in the stipulation of settlement and judgment of divorce as closely as possible while attempting to equitably apportion driving time between the parties. As the Family Court’s visitation determination has a sound and substantial basis in the record, it should not be disturbed (see Matter of Holmes v Glover, 68 AD3d 868).

We find no record support for the father’s contentions that the Judicial Hearing Officer exhibited bias, partiality, and prejudice against him in these proceedings.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Marie A. P. v Nassau County Dept. of Social Servs.       2010-04392         2012 NY Slip Op 08131    “Decided on November 28, 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.

 

2010-04392

(Index No. 20273/09)

 

 

[*1]In the Matter of Marie A. P. (Anonymous), appellant,

 

v

 

Nassau County Department of Social Services, et al., respondents.

 

 

 

 

 

Feldman and Feldman, Uniondale, N.Y. (Steven Feldman and Arza

Feldman of counsel), for appellant.

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

(Michael S. Belohlavek and Sudarsana

Srinivasan of counsel), for respondent New

York State Office of Children and

Family Services.

 

 

DECISION & JUDGMENT

Proceeding pursuant to CPLR article 78 to review a determination of the New York State Office of Children and Family Services dated June 10, 2009, which, after a hearing, denied the petitioner’s application to amend and seal an indicated report maintained by the New York State Register of Child Abuse and Maltreatment.

ADJUDGED that the petition is granted, on the law, with costs, the determination is annulled, and the matter is remitted to the respondents to amend the indicated report to an unfounded report and to seal the amended report.

At an administrative hearing to determine whether a report of child abuse or maltreatment is substantiated, the allegations in the report must be established by a fair preponderance of the evidence (see Matter of Lee TT. V Dowling, 87 NY2d 699; Matter of Blythe v Carrion, 63 AD3d 1059). Judicial review of a determination that such a report has been substantiated is limited to whether the determination is supported by substantial evidence in the record (see Matter of Reed v Carrion, 84 AD3d 1094, 1095). Substantial evidence “” means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact'”” (Matter of Richard R. v Carrion, 67 AD3d 915, 916, quoting 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180; see Matter of Barnes v New York State Off. of Children & Family Servs., 67 AD3d 787).

The determination that the petitioner maltreated her daughter was not supported by substantial evidence (see Matter of Senande v Carrion, 83 AD3d 851; Matter of Parker v Carrión, 80 AD3d 458). The petitioner’s conduct did not, under the facts of this case, place the child’s physical, mental, or emotional condition in “”imminent danger”” of becoming impaired (18 NYCRR 432.1[b][1][ii]; see Matter of Senande v Carrion, 83 AD3d 851; Matter of Parker v Carrión, 80 AD3d 458). The evidence merely established that the mother hit the daughter on the buttocks with [*2]a child’s belt in an attempt to discipline the child, and caused no injury or substantial risk thereof. Under the circumstances of this case, including the absence of any finding, or even an allegation, of prior abuse or maltreatment, the determination that there was maltreatment was not supported by substantial evidence (see 18 NYCRR 432.1[b][1][ii]).

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Revis v Marzan             2012-01596         2012 NY Slip Op 08132    “Decided on November 28, 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.

 

2012-01596

(Docket No. V-408-11)

 

 

[*1]In the Matter of Jessica L. Revis, respondent,

 

v

 

Susan Marzan, et al., appellants.

 

 

 

 

 

Klein Varble & Associates, P.C., Poughkeepsie, N.Y. (Michael

R. Varble of counsel), for appellants.

Richard J. Burke, Jr., Poughkeepsie, N.Y., for respondent.

Theoni Stamos-Salotto, Hopewell Junction, N.Y., attorney for

the child.

 

 

DECISION & ORDER

In a child custody proceeding pursuant to Family Court Act article 6, the maternal aunt and maternal uncle appeal from an order of the Family Court, Dutchess County (Guzman, Ct. Atty. Ref.), dated January 30, 2012, which, after a hearing, granted the mother’s petition to modify an order of the same court (Forman, J.) dated October 9, 2009, entered upon the consent of the parties, awarding guardianship of the subject child to them, so as to award the mother sole custody of the child.

ORDERED that the order dated January 30, 2012, is affirmed, without costs or disbursements.

“” As between a parent and a nonparent, the parent has the superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished the right due to surrender, abandonment, persistent neglect, unfitness, or other similar extraordinary circumstances'”” (Matter of Barcellos v Warren-Kidd, 57 AD3d 984, 984-985, quoting Matter of Danzy v Jones-Moore, 54 AD3d 858). “”The burden of proof is on the nonparent to prove such extraordinary circumstances”” (Matter of Rudy v Mazzetti, 5 AD3d 777, 778), and “”[a]bsent proof of such extraordinary circumstances, an inquiry into the best interests of the child is not triggered”” (Matter of Jiminez v Jiminez, 57 AD3d 781, 781; see Matter of Krieger v Krieger, 65 AD3d 1352, 1353). Here, the Family Court properly determined that the appellants, the subject child’s maternal aunt and maternal uncle, failed to demonstrate the existence of extraordinary circumstances to warrant the continuation of their guardianship of the subject child (see Matter of Jiminez v Jiminez, 57 AD3d at 781; Matter of Tolbert v Scott, 42 AD3d 548). Where, as here, “”the separation between the natural parent and child is not in any way attributable to a lack of interest or concern for the parental role, that separation does not amount to an extraordinary circumstance”” (Matter of Male Infant L., 61 NY2d 420, 429).

Accordingly, the Family Court properly granted the mother’s petition to modify the order dated October 9, 2009, awarding guardianship of the child to the appellants, so as to award her [*2]sole custody of the child.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Reynolds         2012-05562         2012 NY Slip Op 08133    “Decided on November 28, 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.

 

2012-05562

 

 

[*1]In the Matter of John Arnold Reynolds, an attorney and counselor-at-law. Grievance Committee for the Tenth Judicial District, petitioner; John Arnold Reynolds, respondent. (Attorney Registration No. 3976867)

 

 

 

Motion by the Grievance Committee for the Tenth Judicial District to strike the respondent’s name from the roll of attorneys and counselors-at-law, pursuant to Judiciary Law § 90(4), based upon his felony conviction. 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 25, 2001.

 

 

Robert A. Green, Hauppauge, N.Y. (Stacey J. Sharpelleti of

counsel), for petitioner.

Helfer & Helfer, LLP, Bellmore, N.Y. (Michael Helfer of

counsel), for respondent.

 

 

OPINION & ORDER

PER CURIAM.On January 4, 2012, the respondent entered a plea of guilty in Supreme Court, Suffolk County (Cohen, J.), to the crime of scheming to defraud in the first degree, a class E felony in violation of Penal Law § 190.65(1)(b). The respondent admitted, inter alia, that between January 16, 2008, and April 30, 2009, he participated in a scheme to obtain mortgage loan proceeds from financial institutions using fraudulent documentation.

The Grievance Committee for the Tenth Judicial District (hereinafter the Grievance Committee) now moves to strike the respondent’s name from the roll of attorneys and counselors-at-law pursuant to Judiciary Law § 90(4)(b) based upon his felony conviction. The respondent does not oppose the Grievance Committee’s motion.

By virtue of his felony conviction, the respondent ceased to be an attorney and counselor-at-law pursuant to Judiciary Law § 90(4), and was automatically disbarred on January 4, 2012. Accordingly, the Grievance Committee’s motion to strike the respondent’s name from the roll of attorneys and counselors-at-law is granted, effective January 4, 2012, and the respondent’s name is stricken from the roll of attorneys based on his disbarment.

ENG, P.J., MASTRO, RIVERA, SKELOS and ROMAN, JJ., concur.

ORDERED that pursuant to Judiciary Law § 90(4)(a), the respondent, John Arnold Reynolds, is disbarred, effective January 4, 2012, and his name is stricken from the roll of attorneys and counselors-at-law, pursuant to Judiciary Law § 90(4)(b); and it is further, [*2]

ORDERED that the respondent, John Arnold Reynolds, 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, John Arnold Reynolds, 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 its is further,

ORDERED that if the respondent, John Arnold Reynolds, 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 Rubin v Fleissig             2011-08964         2012 NY Slip Op 08134    “Decided on November 28, 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.

 

2011-08964

(Docket No. F-22161-04)

 

 

[*1]In the Matter of Donna Michelle Rubin, respondent,

 

v

 

Brian Fleissig, appellant.

 

 

 

 

 

Steven P. Forbes, Jamaica, N.Y., for appellant.

Cheryl S. Solomon, Brooklyn, N.Y., for respondent.

 

 

DECISION & ORDER

In a child support proceeding pursuant to Family Court Act article 4, the father appeals from an amended order of commitment of the Family Court, Kings County (Katz, J.), dated September 1, 2011, which, upon, in effect, confirming an order of the same court (Fasone, S.M.) dated February 16, 2011, made after a hearing, determining that he willfully violated a prior order of support, committed him to the custody of the New York City Department of Corrections for a term of imprisonment of six months, commencing September 1, 2011.

ORDERED that the appeal from so much of the amended order of commitment as committed the father to the custody of the New York City Department of Corrections for a term of imprisonment of six months is dismissed as academic, without costs or disbursements, as the period of incarceration has expired (see Matter of Rodriguez v Suarez, 93 AD3d 730); and it is further,

ORDERED that the amended order of commitment is affirmed insofar as reviewed, without costs or disbursements.

Contrary to the father’s contention, the Family Court properly determined that he willfully violated a prior order of support. The mother’s testimony and the father’s admission that he did not fully comply with the order of support constituted prima facie evidence of a willful violation (see Matter of Powers v Powers, 86 NY2d 63, 69-70; Matter of Calvello v Calvello, 20 AD3d 525, 526; Matter of Powers v Horner, 12 AD3d 609). The father failed to rebut this prima facie evidence of willfulness by offering competent, credible evidence of his inability to pay (see Matter of Powers v Powers, 86 NY2d at 69-70; Matter of Greene-Tyus v Tyus, 61 AD3d 758).

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

ENTER: [*2]

Aprilanne Agostino

Clerk of the Court”

Matter of Amerriah S. (Kadiatou Y.)         2011-11642         2012 NY Slip Op 08135    “Decided on November 28, 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.

 

2011-11642

(Docket Nos. N-2168-10, N-2169-10, N-2170-10)

 

 

[*1]In the Matter of Amerriah S. (Anonymous). Administration for Children’s Services, respondent;

 

and

 

Kadiatou Y. (Anonymous), et al., appellants. (Proceeding No. 1)

 

 

 

In the Matter of Amir S. (Anonymous). Administration for Children’s Services, respondent;

 

and

 

Kadiatou Y. (Anonymous), et al., appellants. (Proceeding No. 2)

 

 

 

In the Matter of Anasia S. (Anonymous). Administration for Children’s Services, respondent;

 

and

 

Kadiatou Y. (Anonymous), et al., appellants. (Proceeding No. 3) Christopher J. Robles, Brooklyn, N.Y., for appellant Kadiatou Y. Anthony DeGuerre, Staten Island, N.Y., for appellant Chris S.

 

 

 

 

 

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

(Pamela Seider Dolgow and Elizabeth S. Natrella of counsel), for

respondent.

Steven Banks, New York, N.Y. (Tamara A. Steckler and

Patricia Colella of counsel), attorney for the

children.

 

 

DECISION & ORDER

In three related child neglect proceedings pursuant to Family Court Act article 10, the mother appeals, as limited by her brief, from so much of a fact-finding order of the Family Court, Richmond County (Wolff, J.), dated December 9, 2011, as, after a hearing, found that she had neglected the child Anasia S. and derivatively neglected the children Amerriah S. and Amir S., and the father separately appeals, as limited by his brief, from so much of the same fact-finding order as, after a hearing, found that he had neglected the child Anasia S. and derivatively neglected the children Amerriah S. and Amir S.

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

In a child protective proceeding, the petitioner has the burden of proving neglect by [*2]a preponderance of the evidence (see Family Ct Act §§ 1012[f][i][B]; 1046[b][i]; Matter of Kassandra V. [Sylvia L.], 90 AD3d 940, 941). Here, contrary to the contentions of the mother and father of the subject children, the Family Court’s finding of neglect against the father based on his use of excessive corporal punishment is supported by a preponderance of the evidence. The evidence presented at the fact-finding hearing established that the father hit the child Anasia S., then five years old, several times with his hand, causing scratches and bruises to her face. The child’s out-of-court statements that the father slapped her 10 times in the face were sufficiently corroborated by the personal observations of the detective and caseworker, who both described the child’s injuries. Further, they were corroborated by the mother’s out-of-court statements that the child had told her that the father had struck her and the father’s out-of-court admission that he had hit the child (see Family Ct Act § 1046[a][vi]; Matter of Yanni D. [Hope J.], 95 AD3d 1313; Matter of Adreanna M. [Kety M.], 95 AD3d 1213; Matter of Delehia J. [Tameka J.], 93 AD3d 668).

The finding that the mother neglected Anasia S. was supported by a preponderance of the evidence, which demonstrated that she knew that the child’s father was inflicting excessive corporal punishment on Anasia S., yet failed to take any steps to protect her (see Matter of Iouke H. [Terrence H.], 94 AD3d 889).

Finally, the findings of derivative neglect as to the parents’ remaining children are supported by a preponderance of the evidence indicating the parents’ lack of understanding of their parental responsibility (see Matter of James S. [Kathleen S.], 88 AD3d 1006; Matter of Abigail G. [Barrington G.], 84 AD3d 1235; Matter of Derek J., 56 AD3d 558, 559).

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Scanziani v Hairston    2012-02267         2012 NY Slip Op 08136    “Decided on November 28, 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.

 

2012-02267

(Docket No. O-22854-11)

 

 

[*1]In the Matter of Toni Scanziani, respondent,

 

v

 

Tonya Hairston, appellant.

 

 

 

 

 

Francine Shraga, Brooklyn, N.Y., for appellant.

 

 

DECISION & ORDER

In a family offense proceeding pursuant to Family Court Act article 8, Tonya Hairston appeals from an order of fact-finding and disposition of the Family Court, Kings County (Ross, J.H.O.), dated February 6, 2012, which, after a hearing, inter alia, found that she had committed the family offenses of harassment in the second degree and disorderly conduct, and directed her to comply with the terms of an order of protection of the same court dated February 6, 2012.

ORDERED that the order of fact-finding and disposition is affirmed, without costs or disbursements.

A family offense must be established by a fair preponderance of the evidence (see Family Ct Act § 832; Matter of Pearlman v Pearlman, 78 AD3d 711, 712). “”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”” (Matter of Richardson v Richardson, 80 AD3d 32, 43-44).

Here, a fair preponderance of the credible evidence adduced at the fact-finding hearing supports the Family Court’s determination that the appellant committed the family offenses of harassment in the second degree and disorderly conduct (see Penal Law §§ 240.26, 240.20; Family Ct Act §§ 812, 832), warranting the issuance of an order of protection (see Family Ct Act § 842).

The appellant’s remaining contention is without merit.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Robert T. v Sproat       2011-03469         2012 NY Slip Op 08137    “Decided on November 28, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

REINALDO E. RIVERA, J.P.

ANITA R. FLORIO

LEONARD B. AUSTIN

SANDRA L. SGROI, JJ.

 

2011-03469 OPINION & JUDGMENT

 

 

[*1]In the Matter of Robert T. (Anonymous), petitioner,

 

v

 

Christine A. Sproat, etc., et al., respondents.

 

Mental Hygiene Legal Service, Mineola, N.Y. (Lesley De Lia and Dennis B. Feld of counsel), for petitioner.

Eric T. Schneiderman, Attorney General, New York, N.Y. (Susan Anspach of counsel), for respondents Christine A. Sproat and Michael F. Hogan.

PROCEEDING pursuant to CPLR article 78 in the nature of a writ of prohibition to prohibit enforcement of a provision of an amended order of conditions pursuant to CPL 330.20 dated December 16, 2010, issued by the respondent Christine A. Sproat, a Justice of the Supreme Court, Dutchess County, which directed that “”should the petitioner fail to comply”” with any of the other conditions imposed in that order “”and refuse to appear for or comply with a psychiatric examination,”” the Commissioner of the New York State Office of Mental Health “”shall apply to the court for a Temporary Confinement Order for the purpose of conducting an effective psychiatric examination in a secure facility.””

AUSTIN, J.The petitioner was found not responsible for a crime by reason of mental disease or defect. As a result, on March 19, 1996, the County Court, Ulster County, remanded him to the custody of the respondent Commissioner of the New York State Office of Mental Health (hereinafter the Commissioner), pursuant to Criminal Procedure Law § 330.20, based upon a finding that he was dangerously mentally ill. By order of the Supreme Court, Dutchess County, dated August 1, 2002, the petitioner was released from confinement pursuant to a release order and order of conditions, which imposed a treatment plan effective for a period of five years. Thereafter, by order dated September 24, 2007, the order of conditions was extended until September 24, 2010. In August 2010, the Commissioner moved to extend the order of conditions. The petitioner consented to the extension of the order of conditions for an additional three years, but objected to the insertion of the condition in issue (hereinafter the disputed provision), which stated:

 

 

“”ORDERED that should the [petitioner] fail to comply with any of the above conditions and refuse to appear for or comply with a psychiatric examination, the Commissioner shall apply to the court for a Temporary Confinement Order for the purpose of conducting an effective psychiatric examination in a secure facility.””

In an amended order of conditions pursuant to CPL 330.20 dated December 16, 2010, the respondent Christine A. Sproat, a Justice of the Supreme Court, Dutchess County, included the disputed provision in the amended order of conditions.

The petitioner commenced this proceeding against Justice Sproat, the Commissioner, and the District Attorney of Ulster County, pursuant to CPLR article 78, to prohibit the enforcement [*2]of the disputed provision in the amended order of conditions. The petitioner asserted that the Supreme Court went beyond its authority in including the disputed provision in the amended order of conditions. He claimed that a temporary confinement order, such as the one authorized in the disputed provision, could only be obtained pursuant to an application for a “”[r]ecommitment order”” as governed by CPL 330.20(14) since commitment orders are a creature of statute set forth in CPL 330.20. He maintained that the disputed provision authorized a secure confinement without regard for procedural safeguards and in contravention of his constitutional rights.

In their verified answer, the respondents contended that the Supreme Court was authorized by statute to “”fashion reasonable conditions to be included in an Order of Conditions.”” They claimed that the disputed provision was permissible pursuant to CPL 330.20(1)(o), which defines an order of conditions, in pertinent part, as:

“”[A]n order directing a defendant to comply with [a] prescribed treatment plan, or any other condition which the court determines to be reasonably necessary or appropriate, and, in addition, where a defendant is in custody of the commissioner, not to leave the facility without authorization.””

 

The respondents also relied upon CPL 330.20(12), which states, in pertinent part:

“”The order of conditions issued in conjunction with a release order shall incorporate a written service plan prepared by a psychiatrist familiar with the defendant’s case history and approved by the court, and shall contain any conditions that the court determines to be reasonably necessary or appropriate.””

The respondents did acknowledge that the alternative to a temporary confinement provision is a “”recommitment order”” as set forth in CPL 330.20(14), but maintained that the temporary confinement was a “”less intrusive”” means by which the Supreme Court could make certain that a petitioner would abide by the order of conditions. Further, they asserted that there was no statutory authority prohibiting the Supreme Court from utilizing this measure.

In reply, the petitioner argued that the provision at issue was not related to treatment but was instead a consequence if he failed to follow the treatment plan. As such, he contended that the disputed provision should not have been included within the amended order of conditions.

We begin our analysis of whether the petitioner is entitled to a writ of prohibition with a consideration of the nature of the remedy sought and the statutory framework which governs individuals found not responsible for a crime by reason of mental disease or defect. Pursuant to subsection three of CPLR 7803, a petitioner may question “”whether a determination was made in violation of lawful procedure.”” A writ of 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 power”” (Matter of Holtzman v Goldman, 71 NY2d 564, 569; see Matter of Hynes v George, 76 NY2d 500, 504). Whether to grant prohibition, even where a justice or judge acts in excess of his or her legal powers, rests within the sound discretion of the reviewing court (see Matter of Holtzman v Goldman, 71 NY2d at 569). We find this case to be one of those extraordinary situations where prohibition is appropriate.

In a criminal case, when the verdict of not responsible by reason of mental disease or defect is entered against a person, or a person enters a plea of not responsible on that same ground and that plea is accepted, the court must immediately issue an order (hereinafter examination order) directing that person to submit to psychiatric examinations by qualified psychiatric examiners designated by the Commissioner to determine whether the person has a dangerous mental disorder or, if not, if the person is mentally ill (see CPL 330.20[1][e]; [2]). Thereafter, the reports of the psychiatric examiners are provided by the Commissioner to the court (see CPL 330.20[5]).

Within 10 days after receipt of those reports, the court will conduct an initial hearing to determine the person’s present mental condition (see CPL 330.20[6]). Following that initial hearing, the person will be classified as either “”track”” one, two, or three (see Matter of Jamie R. v Consilvio, 6 NY3d 138, 142). The track assigned to a person designates his or her level and nature of confinement or supervision (see id.). A person is found to have a dangerous mental disorder if he or she is mentally ill requiring inpatient care and treatment and is a physical danger to his or her self or others (see CPL 330.20[1][c]; Matter of Jamie R. v Consilvio, 6 NY3d at 145). The court will [*3]classify such a person as track one and commit him or her to a secure facility for an initial term of six months by issuing a “”commitment order”” (CPL 330.20[6]; see Matter of Jamie R. v Consilvio, 6 NY3d at 142; Matter of Norman D., 3 NY3d 150, 156).

A person classified as track one is “”subject to far more comprehensive supervision by the courts than track two and three patients”” (Matter of Jamie R. v Consilvio, 6 NY3d at 143; see Matter of George L., 85 NY2d 295, 301). He or she will “”remain confined in a secure facility subject to continued judicial supervision pursuant to CPL 330.20 until adjudicated no longer dangerous”” (Matter of Jill ZZ., 83 NY2d 133, 137). The petitioner in this case was classified as track one, since the court initially found that he was suffering from a dangerous mental disorder.

“”Once track status is determined, future confinement of the individual is determined through periodic retention’ hearings that may result in retention orders authorizing [the Office of Mental Health] to continue to hold the patient in a secure or nonsecure facility”” (Matter of Jamie R. v Consilvio, 6 NY3d at 143). With respect to an individual in track one, pursuant to CPL 330.20(8), the Commissioner must, at least 30 days prior to the expiration of the six-month commitment period, apply to the court for a “”first retention order or a release order.”” If the Commissioner submits an application for retention and a hearing is held, the Commissioner must establish that the individual has a dangerous mental disorder or is mentally ill (see CPL 330.20[8]). If the application is for release, the burden is on the district attorney to establish that the individual has a dangerous mental disorder or mental illness (see id.). If the court determines that the person has a dangerous mental disorder, it must issue a “”first retention order”” (id.). A “”[f]irst retention order”” authorizes continued custody of a person by the Commissioner for a period not to exceed one year (CPL 330.20[1][g]). If the court determines that the person is mentally ill but does not have a dangerous mental disorder, it must issue a first retention order, a “”transfer order,”” and an order of conditions (see CPL 330.20[8]). If the court finds that the person is neither suffering from a dangerous mental disorder nor is mentally ill, it must issue a release order and an order of conditions (see id.).

Following retention pursuant to a first retention order, the Commissioner must again apply to the court at least 30 days prior to the expiration of the first retention order, for a second retention order or release order following the same procedure as was set forth with respect to an application for a first retention order (see CPL 330.20[9]). This second review takes place 18 months after the original finding (see CPL 330.20[1][h]). A “”[s]econd retention order”” authorizes “”continued custody of a [person] by the [C]ommissioner for a period not to exceed two years”” (id.) The same procedure is employed for any application for subsequent retention orders (see CPL 330.20[9]). Those reviews are conducted once every two years (see CPL 330.20[1][i]).

The Commissioner can apply for a transfer order when he or she deems that a track one individual, in the Commissioner’s custody pursuant to a retention or recommitment order, is no longer suffering from a dangerous mental disorder or that the person should be transferred from a secure facility to a nonsecure facility (see CPL 330.20[11]). In the event that the court finds that a person designated as track one no longer suffers from a dangerous mental disorder, the court must grant the Commissioner’s application and issue a transfer order directing the transfer of the person to a nonsecure facility (see id.). “”Whenever a court issues a transfer order it must also issue an order of conditions”” (id.).

If the Commissioner applies for a release order because he or she believes that the person does not have a dangerous mental disorder or a mental illness, the court must promptly conduct a hearing to determine the person’s “”present mental condition”” (CPL 330.20[12]). Should the court grant the application and issue a release order having found that the person does not have a dangerous mental disorder and is not mentally ill, it “”must issue a new order of conditions”” “”incorporat[ing] a written service plan prepared by a psychiatrist familiar with the [person’s] case history and approved by the court, and shall contain any conditions that the court determines to be reasonably necessary or appropriate”” (id.).

“”[T]he order of conditions is the vehicle by which the convicting court effectuates its continuing supervisory authority over”” a person acquitted by reason of mental disease or defect (Matter of Jill ZZ., 83 NY2d at 138). “”These conditions may include required periodic visits to a specified outpatient facility, restrictions on a defendant’s alcohol consumption or place of residence, or, if the defendant has been transferred to a nonsecure facility, the requirement that defendant not leave the premises without written authorization”” (Matter of Oswald N., 87 NY2d 98, 102 [citations omitted]). Failure to comply with the treatment plan specified in the order of conditions, followed by that person posing a danger to his or her self or others, may result in the court, “”upon a hearing, [*4]recommit[ting] the defendant to a secure psychiatric hospital””(id. at 102 [emphasis added]).

During the pendency of the order of conditions, the Commissioner or the district attorney may apply to the court for a recommitment of the defendant, if the “”applicant is of the view that the defendant has a dangerous mental disorder”” (CPL 330.20[14]). “”The applicant must give written notice of the application to the defendant, counsel for the defendant, and the mental hygiene legal service”” (id.). Notice must also be given to the Commissioner or the district attorney depending on who makes the application (see id.). The defendant is then given notice, through personal service or by mail to his or her last known address, that the court is going to conduct a hearing to determine whether he or she has a dangerous mental disorder (see id.). The applicant has the burden at that hearing of proving that the defendant has a dangerous mental disorder (see id.). If the applicant meets that burden, the court must issue a recommitment order (see CPL 330.20[14]). Based upon this statutory scheme, we find that requiring an application for the recommitment of an individual necessarily implicates the individual’s due process right to be heard before being recommitted; even if only temporarily.

The disputed provision at issue, as an “”additional condition,”” is not authorized by CPL 330.20 and improperly establishes an ex parte enforcement procedure for addressing violations of the amended order of conditions. Thus, this provision is violative of the due process protections afforded the petitioner under CPL article 330. The existing procedures mandated by the relevant statutes and regulations are sufficient to protect the community and the petitioner. The creation of wholly new mechanisms of enforcement that mimic procedures prescribed by statute and regulation, but lack the same procedural safeguards, is unwarranted and troubling from a due process perspective.

As noted above, “”[t]he retention, conditional release or discharge of a track one patient”” such as the petitioner “”is governed entirely by CPL 330.20″” (Matter of Jamie R. v Colsilvio, 6 NY3d at 143). Criminal Procedure Law § 330.20 contains no specific statutory procedure for dealing with an individual who has violated an order of conditions. However, CPL 330.20(14) provides for the Commissioner or the district attorney to apply at any time during the period covered by an order of conditions for recommitment of the individual if the “”applicant is of the view that the defendant has a dangerous mental disorder””(CPL 330.20[14]; see Matter of Bowles [New York State Off. of Mental Retardation & Dev. Disabilities], 206 AD2d 216, 219). Under 22 NYCRR 110.12(b), the court is permitted to issue a “”temporary confinement order”” directing the confinement of an individual brought before the court on the warrant issued pursuant to CPL 330.20(14). Therefore, if an individual violates an order of conditions and has a history of dangerous mental disorder, it is clear that the proper procedure is an application for recommitment (see e.g. Matter of Bowles, 206 AD2d at 219).

Moreover, upon application for a recommitment order, the subject of the application is entitled to notice and an opportunity to be heard (see Matter of Sheldon S., 9 AD3d 92, 98; Matter of K.L., 302 AD2d 388, 391, affd 1 NY3d 362). The disputed provision in this case did not provide for notice and an opportunity to be heard, thus depriving the petitioner of statutorily prescribed due process protections.

CPL 330.20(1)(o) and CPL 330.20(12) cannot be conflated so as to ignore the due process protections of CPL 330.20(14). “”All parts of a statute must be harmonized with each other”” (McKinney’s Cons Laws of NY, Book 1, Statutes § 98[a]; see Sanders v Winship, 57 NY2d 391, 395-396), and to construe one part of the statute so as to permit nullification of another is impermissible (see Matter of Albano v Kirby, 36 NY2d 526, 530).

Since the disputed provision was not specifically authorized by CPL 330.20, and actually conflicts with the provisions of CPL 330.20(14) by failing to provide for notice and an opportunity to be heard, it was improperly imposed. The Supreme Court does not have authority to issue a “”Temporary Confinement Order”” without notice until there is an application for recommitment—temporary or otherwise—on notice, in its current form. Therefore, enforcement of the disputed provision must be prohibited (see CPLR 7803[2]; Matter of Oliver C. v Weissman, 203 AD2d 458, 459).

Accordingly, the petition is granted, on the law, and the respondents are prohibited from enforcing or taking action to enforce the provision of the amended order of conditions dated December 16, 2010, which directed that should the petitioner fail to comply with any of the other provisions imposed in that order “”and refuse to appear for or comply with a psychiatric examination,”” the Commissioner of the New York State Office of Mental Health “”shall apply to the [*5]court for a Temporary Confinement Order for the purpose of conducting an effective psychiatric examination in a secure facility.””

FLORIO and SGROI, JJ., concur.

RIVERA, J.P., dissents and votes to deny the petition and dismiss the proceeding, with the following memorandum:

In this original proceeding pursuant to CPLR article 78 in the nature of a writ of prohibition, the petitioner, an insanity acquittee, seeks to prohibit the enforcement of a provision contained in an amended order of conditions which directed that should he fail to comply with any of the remaining conditions set forth therein “”and refuse to appear for or comply with a psychiatric examination,”” the Commissioner of the New York State Office of Mental Health “”shall apply to the court for a Temporary Confinement Order for the purpose of conducting an effective psychiatric examination in a secure facility”” (hereinafter the disputed provision).

The primary issue presented is whether the Supreme Court exceeded its authority in issuing the aforementioned amended order of conditions containing the disputed provision. For the reasons that follow, I conclude that the petitioner has failed to establish that the disputed provision is not authorized. Accordingly, I would deny the petition and dismiss the proceeding.

Factual Background

The petitioner, Robert T., who is currently 64 years old, has a long psychiatric history. His first admission, in September 1974, was for agitated and assaultive behavior at home. He was diagnosed as suffering from psychosis with epilepsy. Thereafter, on a re-admission, in October 1983, he was diagnosed with adjustment disorder with depressed mood. In April 1995, while at his residence, he cut his wrists and was admitted to St. Francis Hospital, in Poughkeepsie, New York. He was discharged on May 4, 1995.

Approximately two months after the aforementioned discharge from the hospital, on July 16, 1995, the petitioner intentionally drove his car into the opposite lane of traffic, purportedly in an attempt to commit suicide. He collided with another vehicle, killing its occupant. He was charged with manslaughter in the second degree. By order of the County Court, Ulster County, dated March 19, 1996, the petitioner was found not responsible by reason of mental disease or defect and was remanded to the custody of the Commissioner of the New York State Office of Mental Health (hereinafter the Commissioner), pursuant to CPL 330.20, based upon a finding that he was dangerously mentally ill. Thereafter, by order of the Supreme Court, Dutchess County, dated August 1, 2002, the petitioner was released from confinement pursuant to a release order and order of conditions, which imposed a treatment plan effective for five years. Subsequent to the issuance of the above-mentioned order of conditions, by order dated September 24, 2007, the Supreme Court, Dutchess County, extended the order of conditions until September 24, 2010.

In August 2010 the Commissioner moved to extend the order of conditions. As of July 29, 2010, the petitioner’s psychiatric/clinical diagnosis was set forth, inter alia, as: “”Axis I”” major depressive disorder severe recurrent with psychotic features; and “”Axis II”” personality disorder “”NOS.””

The proposed extended order of conditions contained the following disputed provision:

“”ORDERED that should the defendant fail to comply with any of the above conditions and refuse to appear for or comply with a psychiatric examination, the Commissioner shall apply to the court for a Temporary Confinement Order for the purpose of conducting an effective psychiatric examination in a secure facility.””

While the petitioner consented to the continuation of the order of conditions for an additional three years, he objected to the insertion of the disputed provision. In an amended order of conditions dated December 16, 2010, the respondent Christine A. Sproat, a Justice of the Supreme Court, Dutchess County (hereinafter Justice Sproat), included the disputed provision. The petitioner is not presently confined and the disputed provision has not been invoked.

The Instant Proceeding Pursuant To CPLR Article 78

The petitioner commenced the instant proceeding pursuant to CPLR article 78 in the nature of a writ of prohibition, to prohibit the enforcement of the disputed provision. According to [*6]the petitioner, Justice Sproat exceeded her authority in issuing the amended order of conditions which contained the disputed provision. In support of this claim, the petitioner relied upon CPL 330.20(14), which provides:

“”At any time during the period covered by an order of conditions an application may be made by the commissioner or the district attorney to the court that issued such order, or to a superior court in the county where the defendant is then residing, for a recommitment order when the applicant is of the view that the defendant has a dangerous mental disorder. The applicant must give written notice of the application to the defendant, counsel for the defendant, and the mental hygiene legal service, and if the applicant is the commissioner he must give such notice to the district attorney or if the applicant is the district attorney he must give such notice to the commissioner. Upon receipt of such application the court must order the defendant to appear before it for a hearing to determine if the defendant has a dangerous mental disorder. . . . If the defendant fails to appear in court as directed, the court may issue a warrant to an appropriate peace officer directing him to take the defendant into custody and bring him before the court. In such circumstance, the court may direct that the defendant be confined in an appropriate institution located near the place where the court sits. The court must conduct a hearing to determine whether the defendant has a dangerous mental disorder. At such hearing, the applicant, whether he be the commissioner or the district attorney must establish to the satisfaction of the court that the defendant has a dangerous mental disorder. . . . If the court finds that the defendant has a dangerous mental disorder, it must issue a recommitment order.””

The petitioner asserted that CPL 330.20(14), is the “”mechanism by which to effectuate”” the “”temporary secure confinement”” within the context of a pending recommitment application. Thus, he claimed that Justice Sproat improperly exceeded her authority when she authorized a secure confinement outside of what is presently permitted under law, bypassing safeguards and constitutional rights.

In a verified answer, dated June 3, 2011, the respondents entered denials to the allegations of the petition. The respondents asserted that no legal grounds existed for the instant CPLR article 78 proceeding. In this regard, the respondents stated that, contrary to the petitioner’s contention, Justice Sproat did not “”act either without jurisdiction or in excess of its authorized powers.”” Instead, the respondents maintained that the governing statute “”explicitly”” conferred “”broad discretion”” upon Justice Sproat to “”fashion reasonable conditions to be included in an Order of Conditions.”” Specifically, the respondents contended that the disputed provision was permissible pursuant to CPL 330.20(1)(o), which defines an order of conditions, in pertinent part, as:

“”[A]n order directing a defendant to comply with [a] prescribed treatment plan, or any other condition which the court determines to be reasonably necessary or appropriate, and, in addition, where a defendant is in custody of the commissioner, not to leave the facility without authorization”” (emphasis added).

The respondents also referred to CPL 330.20(12), which states, in relevant part:

“”The order of conditions issued in conjunction with a release order shall incorporate a written service plan prepared by a psychiatrist familiar with the defendant’s case history and approved by the court, and shall contain any conditions that the court determines to be reasonably necessary or appropriate””(emphasis added).

While the respondents acknowledged that the alternative to a temporary confinement provision is a “”[r]ecommitment order”” pursuant to CPL 330.20(14), they asserted that the temporary order of confinement was a “”less intrusive”” means for the court to ensure compliance with the order [*7]of conditions.

In reply, the petitioner asserted that the disputed provision was not a “”condition”” relating to treatment, but rather pertained to the “”consequences”” that follow “”if the treatment plan is not followed.”” He insisted that Justice Sproat was “”not free to legislate.””

Legal Analysis

Initially, a petitioner seeking a writ of prohibition must demonstrate that a body or officer acting in a judicial or quasi-judicial capacity is proceeding or threatening to proceed in excess of its jurisdiction, and that the petitioner has a clear legal right to the relief requested (see Matter of Garner v New York State Dept. of Correctional Servs., 10 NY3d 358, 361-362). “”[S]uch relief is extraordiary’ and should only be granted in limited circumstances”” (id. at 361; see Matter of Nicholson v State Commn. on Jud. Conduct, 50 NY2d 597, 605). The petitioner herein has failed to make the required showing.

CPL 330.20, which was enacted in 1980, governs the procedure to be followed after a criminal court has entered a judgment that the defendant is not responsible by reason of mental disease or defect (see Matter of Jamie R. v Consilvio, 6 NY3d 138, 141). If a person charged with a crime is found, by acceptance of a plea or by verdict, to be not responsible by reason of mental disease or defect, the court orders a psychiatric examination and conducts an initial hearing to determine whether the person is mentally ill or is suffering from a dangerous mental disorder (see CPL 330.20[2], [3], [4]).

Based upon evidence at the initial hearing, the individual receives one of three classifications. Where the court finds that the individual has a dangerous mental disorder, he or she is classified in track one (see 1980 Report of the NY Law Rev Commn, reprinted in 1981 McKinney’s Sessions Laws of NY at 2265), and is committed to a secure facility for an initial term of six months (see CPL 330.20[1][f]; [6]). At the expiration of a six-month commitment order to a secure facility, the track one patient receives the first of a series of court reviews to determine his or her current mental condition. If the court finds that the individual continues to have a dangerous mental disorder, he or she must be recommitted under a first retention order for not more than one year (see CPL 330.20[1][g]; [8]), but second and subsequent reviews occur every two years (see CPL 330.20[1][h]; [9]). If a court finds that the individual no longer suffers from a dangerous mental disorder, it may direct transfer to a nonsecure facility with an order of conditions if the individual is still mentally ill, or release the individual with an order of conditions if the individual is no longer mentally ill (see CPL 330.20[11],[12]).

Alternatively, where the court, in its initial determination, finds that the individual is mentally ill but does not have a dangerous mental disorder, he or she is classified in track two and committed to the custody of the Commissioner pursuant to the Mental Hygiene Law, with an order of conditions (see CPL 330.20[7]), or where the court finds that the individual does not have a dangerous mental disorder and is not mentally ill, he or she is classified in track three and is discharged either “”unconditionally or subject to an order of conditions”” (id.; see Matter of Sheldon S., 9 AD3d 92, 96; Matter of David B., 97 NY2d 267, 276). Accordingly, an order of conditions must be imposed on track one and two persons, and may be imposed on track three persons (see Matter of Sheldon S., 9 AD3d at 96).

The petitioner at issue was classified in a track one status, since the court initially found that he was suffering from dangerous mental disorders. Further, his status as a track one patient does not change if he is later determined to be “”mentally ill”” but no longer suffering from the dangerous mental disorders (see Matter of Norman D., 3 NY3d 150, 152). “”Track status, as determined by the initial commitment order, governs the acquittee’s level of supervision in future proceedings and may be overturned only on appeal from that order, not by means of a rehearing and review”” (id.).

As noted by the Court of Appeals in Matter of Jill ZZ. (83 NY2d 133, 138), “”the order of conditions is the vehicle”” whereby the court “”effectuates its continuing supervisory authority over”” a person acquitted by reason of mental disease or defect. “”Should a defendant fail to comply with the treatment plan specified in the order of conditions and thereafter become dangerous to himself or others, the courts may, upon a hearing, recommit the defendant to a secure psychiatric hospital”” (Matter of Oswald N., 87 NY2d 98, 102). At any time during the period covered by an order of conditions, the Commissioner or the District Attorney may apply for recommitment, if the “”applicant is of the view that the defendant has a dangerous mental disorder””(CPL 330.20[14]). The purposes of the recommitment procedures are “”to ensure that all persons who develop or relapse into [*8]a dangerous mental disorder during the pendency of the order of conditions are amenable to a secure psychiatric placement”” (People v Stone, 73 NY2d 296, 303; see Matter of Sheldon S., 9 AD3d at 97). The Court of Appeals has held that “”[t]he retention, conditional release or discharge of a track one patient is governed entirely by CPL 330.20″” (Matter of Jamie R. v Consilvio, 6 NY3d at 143). Since the petitioner is a track one patient, the terms relating to his supervision are governed solely by CPL 330.20. Thus, the crucial issue presented is whether the disputed provision is authorized by CPL 330.20.

There is nothing in the express language of CPL 330.20 that prohibits or limits the court’s authority to entertain an application for a temporary confinement order such as the one at bar. To the contrary, as persuasively maintained by the respondents, CPL 330.20(1)(o) permits a court to direct “”any other condition which the court determines to be reasonably necessary or appropriate.”” Further, the statute states that an order of conditions “”shall contain any conditions that the court determines to be reasonably necessary or appropriate”” (CPL 330.20[12]). Inasmuch as each case is unique and not all conditions can properly be cookie cut or anticipated, the Legislature saw fit to draft the statute in very broad terms so as to allow a court to properly devise “”reasonably necessary or appropriate”” conditions.

As succinctly stated by the Court of Appeals in Matter of Oswald N. (87 NY2d at 104), “”[t]he postacquittal procedures now codified in CPL 330.20 and initially enacted into law as part of the Insanity Defense Reform Act of 1980 (L 1980, ch 548) were intended to protect the public from persons found not responsible of a crime by reason of mental disease or defect while providing effective treatment for such individuals.”” Quoting from the Law Revision Commission which proposed the legislation largely incorporated in CPL 330.20, the Court of Appeals added that since

“” psychiatry cannot now guarantee the safety of the public from future dangerous acts of persons found not responsible . . . and will most likely be unable to do so in the foreseeable future, the procedures governing commitment, treatment, and release of such defendants are critically important. . . . [T]he mental condition of the defendant when released into the community—is the basis of public and professional concern'”” (id. at 104, quoting 1981 Report of NY Law Rev Commn, 1981 McKinney’s Session Laws of NY, at 2261).

It is self-evident that the legislature set forth certain procedures for an application for a “”recommitment order”” (CPL 330.20[14]). However, a “”recommitment order”” is not the exclusive tool available to the court under the statute. The temporary confinement order which includes the disputed provision constitutes an alternative means, separate from and short of a full recommitment order application process. The majority appears to conflate two entirely different concepts. CPL 330.20(14) is the proper mechanism by which to proceed where “”the applicant is of the view that the [petitioner] has a dangerous mental disorder.”” That provision is different from the disputed provision. Within the construct of mental illness, the disputed provision provides a preventive and preemptive mechanism. One of the objectives of the disputed provision and the order of conditions itself is to provide a tool for monitoring a potential onset of symptomatology, anticipatory to a likely regression or decompensation. The disputed provision constitutes a safety net within the statutory framework. It is simply another means to avert an insanity acquitee’s potential degeneration or devolution into a “”dangerous mental disorder.””

In order for the disputed provision to be invoked, two conditions must be met, namely, (1) the failure by the petitioner to comply with any of the conditions set forth in the amended order of conditions, i.e., treatment, and (2) the refusal by the petitioner to appear for or comply with a psychiatric examination. Upon a showing of non-compliance by the petitioner with those two conditions, the court may issue a “”Temporary Confinement Order”” for the very limited purpose of conducting an “”effective psychiatric examination in a secure facility.”” Clearly, this temporary and substantially less intrusive measure sought for a very limited purpose, namely, to permit an application for conducting a psychiatric examination, cannot be said to be prohibited by the statute. The procedure that the provision facilitates constitutes an efficient means, consistent with the legislative intent and judicial authority, to balance the State’s interest in protecting society with the petitioner’s rights and civil liberties. The disputed provision is, in fact, consistent with the legislative intent and mandate upon the judiciary to supervise an insanity acquittee.

Under the well-established principles of judicial construction of statutes, courts [*9]should take statutes “”as they find them and construe them according to the canons of interpretation, neither extending their operation beyond the bounds of the legislative intent, nor restricting their obvious application”” (McKinney’s Cons Laws of NY, Book 1, Statutes § 73). Neither the language nor the intention of CPL 330.20 supports the petitioner’s arguments. Consequently, I will not circumscribe the Supreme Court’s authority where, as here, the Legislature has expressly permitted it to issue conditions which it determines to be “”reasonably necessary or appropriate.”” The petitioner’s contentions are counterintuitive, and the determination sought by the petitioner severely undermines the court’s authority to carry out its mandate in exercising continuing supervision over an insanity acquittee.

Further, I reject the petitioner’s argument that the disputed provision violates his constitutional rights (see Jones v United States, 463 US 354, 370). It cannot be said that the petitioner’s liberty interests have been or will be violated by the disputed provision. The disputed provision is not a self-executing order. The petitioner is not forcibly subjected to a coercive psychiatric examination, to an invasive medical procedure, or to confinement without due process or equal protection. The disputed provision simply permits the Commissioner to apply to the court for a temporary confinement order for the purpose of conducting a psychiatric examination. The court, which is ultimately responsible for maintaining ongoing judicial supervision over an acquittee’s treatment, must then determine whether it is appropriate to grant or deny the application.

Finally, I disagree with my colleagues’ assertion that the disputed provision establishes an ex parte enforcement procedure for addressing violations of the order of conditions. The disputed provision provides the petitioner with ample notice and warning of what is expected of him, and of the consequences that may result should he fail to comply with the listed conditions and refuse to submit to a psychiatric examination.

Accordingly, I would deny the petition and dismiss the proceeding.

ADJUDGED that the petition is granted, on the law, without costs or disbursements, and the respondents are prohibited from enforcing or taking action to enforce the provision of the amended order of conditions dated December 16, 2010, which directed that should the petitioner fail to comply with any of the other conditions imposed in that order “”and refuse to appear for or comply with a psychiatric examination,”” the Commissioner of the New York State Office of Mental Health “”shall apply to the court for a Temporary Confinement Order for the purpose of conducting an effective psychiatric examination in a secure facility.””

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Van Dunk v Bonilla      2011-09156         2012 NY Slip Op 08138    “Decided on November 28, 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.

 

2011-09156

(Docket Nos. V-2520/10, V-2521/10)

 

 

[*1]In the Matter of Latricha Van Dunk, appellant,

 

v

 

Richard Bonilla, respondent. Salvatore C. Adamo, New York, N.Y., for appellant. Law Offices of K. D. Rothman, P.C., Nanuet, N.Y., for respondent. Veronica J. Young, New City, N.Y., attorney for the children.

 

 

 

 

 

DECISION & ORDER

In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Rockland County (Richardson-Mendelson, Ct. Atty. Ref.), dated August 12, 2011, which, after a hearing, denied her petition for sole custody of the subject children and awarded the parties joint legal custody of the children, with sole physical custody to the father and certain visitation to her.

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

In a child custody proceeding, the court’s paramount concern is to determine what placement, based on the totality of the circumstances, is in the best interests of the child (see Friederwitzer v Friederwitzer, 55 NY2d 89, 94; Eschbach v Eschbach, 56 NY2d 167, 171). The court’s determination of custody depends to a great extent upon an assessment of the character and credibility of the parties and witnesses, and those determinations are generally accorded deference on appeal. The determination should not be disturbed unless it lacks a sound and substantial basis in the record (see Eschbach v Eschbach, 56 NY2d at 174; Matter of Gordon v Goldin, 95 AD3d 1115, 1115). In “” custody disputes, the value of forensic evaluations of the parents and children has long been recognized’ (Ekstra v Ekstra, 49 AD3d 594, 595 [2008]; see Matter of Womack v Jackson, 30 AD3d 433, 434 [2006]; Stern v Stern, 225 AD2d 541, 541 [1996]) and the opinions of forensic experts should not be readily set aside’ unless contradicted by the record”” (Matter of Volpe v Volpe, 61 AD3d 691, 692, quoting Baines v Baines, 308 AD2d 557, 558).

Here, the Family Court properly considered the totality of the circumstances in determining that the best interests of the subject children would be served by awarding sole physical custody to the father. This determination has a sound and substantial basis in the record, including the testimony of the parties and the court-appointed forensic psychologist, and should not be disturbed (see Matter of Cordero v DeLeon, 92 AD3d 943; see also Eschbach v Eschbach, 56 NY2d at 174). [*2]

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Darren W.       2012-00239         2012 NY Slip Op 08139    “Decided on November 28, 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.

 

2012-00239

(Docket No. D-32045-10)

 

 

[*1]In the Matter of Darren W. (Anonymous), Jr., appellant.

 

 

 

 

 

Steven Banks, New York, N.Y. (Tamara Steckler and Raymond E.

Rogers of counsel), for appellant.

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

(Kristin M. Helmers and Deborah A.

Brenner of counsel), for respondent.

 

 

DECISION & ORDER

In a juvenile delinquency proceeding pursuant to Family Court Act article 3, Darren W. appeals from an order of disposition of the Family Court, Kings County (Elkins, J.), dated December 5, 2011, which, upon a fact-finding order of the same court dated August 11, 2011, made after a hearing, and upon his admission, finding that he committed an act which, if committed by an adult, would have constituted a violation of section 10-134.1(e) of the Administrative Code of the City of New York, which prohibits the possession of a box cutter in a public place while under the age of 21, adjudged him to be a juvenile delinquent and placed him in the custody of the New York State Office of Children and Family Services for a period of 12 months. The appeal brings up for review the denial, after a hearing, of that branch of the appellant’s omnibus motion which was to suppress certain physical evidence.

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

Contrary to the appellant’s contention, the police conduct in this case was justified at its inception and reasonably limited in scope at each step in response to the circumstances presented (see People v De Bour, 40 NY2d 210, 222-223; People v Williams, 238 AD2d 531, 532; People v Johnson, 220 AD2d 455, 455; see also People v Johnson, 244 AD2d 573, 573; People v Diaz, 131 AD2d 690, 693; cf. People v Riddick, 269 AD2d 471, 471-472). Accordingly, the Family Court properly denied that branch of the appellant’s omnibus motion which was to suppress certain physical evidence.

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

ENTER: [*2]

Aprilanne Agostino

Clerk of the Court”

Matter of Niaja A. W. (Paulette G.)          2011-09849         2012 NY Slip Op 08140    “Decided on November 28, 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.

 

2011-09849

(Docket No. B-38016-10)

 

 

[*1]In the Matter of Niaja A. W. (Anonymous). Administration for Children’s Services, et al., petitioners-respondents;

 

and

 

Paulette G. (Anonymous), appellant, et al., respondent.

 

 

 

 

 

Carol Kahn, New York, N.Y., for appellant.

Carrieri & Carrieri, P.C., Mineola, N.Y. (Ralph R. Carrieri of

counsel), for petitioner-respondent

Graham-Windham Services to Families

and Children.

Steven Banks, New York, N.Y. (Tamara A. Steckler and Susan

Clement of counsel), attorney for the

child.

 

 

DECISION & ORDER

In a proceeding pursuant to Social Services Law § 384-b to terminate parental rights, the mother appeals from an order of the Family Court, Kings County (Danoff, J.), dated October 11, 2011, which denied her motion, in effect, to vacate her default in appearing at the fact-finding hearing and dispositional hearing.

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

A parent seeking to vacate a default in a proceeding for the termination of parental rights must establish a reasonable excuse for the default, as well as a potentially meritorious defense (see CPLR 5015[a][1]; Matter of Kenneth S. v Bethzaida P., 95 AD3d 1022, 1023; Matter of Joseph N., 45 AD3d 849; Matter of Michael William O., 16 AD3d 511). The determination whether to relieve a party of a default is a matter left to the sound discretion of the Family Court (see Matter of Kenneth S. v Bethzaida P., 95 AD3d at 1023; Matter of Capri Alexis R., 48 AD3d 821, 822). Here, the mother presented neither a potentially meritorious defense to the termination petition nor a reasonable excuse for her failure to appear at the fact-finding hearing (see Matter of Kenneth S. v Bethzaida P., 95 AD3d at 1023; Matter of Capri Alexis R., 48 AD3d at 822; Matter of Joseph N., 45 AD3d 849). Accordingly, the Family Court properly denied the motion to vacate her default.

The mother’s remaining contention is without merit.

MASTRO, J.P., SKELOS, FLORIO and DICKERSON, JJ., concur. [*2]

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Alcantara          2008-03490         2012 NY Slip Op 08141    “Decided on November 28, 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

JOHN M. LEVENTHAL, JJ.

 

2008-03490

(Ind. No. 1846/06)

 

 

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

 

v

 

Quiry Alcantara, appellant.

 

 

 

 

 

Quiry Alcantara, Alden, N.Y., appellant pro se.

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

Joblove and Camille O’Hara

Gillespie of counsel), for respondent.

Lynn W. L. Fahey, New York, N.Y. (Joshua M. Levine of

counsel), former appellate counsel.

 

 

DECISION & ORDER

Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated November 3, 2010 (People v Alcantara, 78 AD3d 721), affirming a judgment of the Supreme Court, Kings County, rendered March 20, 2008.

ORDERED that the application is denied.

The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v Barnes, 463 US 745; People v Stultz, 2 NY3d 277).

ENG, P.J., MASTRO, RIVERA and LEVENTHAL, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Austin                2009-05742         2012 NY Slip Op 08142    “Decided on November 28, 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.

 

2009-05742

(Ind. No. 1354/07)

 

 

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

 

v

 

Alfonso Austin, appellant.

 

 

 

 

 

Christopher Renfroe, Forest Hills, N.Y., 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 (Holder, J.), rendered June 4, 2009, convicting him of assault in the first degree, assault in the second degree (two counts), resisting arrest, and false personation, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Grosso, J.), of that branch of the defendant’s omnibus motion which was to suppress identification evidence.

ORDERED that the judgment is affirmed.

Contrary to the defendant’s contention, the hearing court properly denied that branch of his omnibus motion which was to suppress identification evidence. The hearing court correctly determined that the arresting officers initially had a “”founded suspicion”” of possible criminal activity, creating a common-law right of inquiry, based on the fact that the defendant matched the suspect’s description and was located near the site of the subject criminal actions just minutes after they occurred (People v Pines, 99 NY2d 525; see People v De Bour, 40 NY2d 210). Further, the hearing court properly determined that the officers’ level of inquiry escalated to the level of reasonable suspicion based upon the defendant’s conduct of ducking behind a building and then walking away from them quickly (see People v Pines, 99 NY2d at 526). Once the police temporarily detained the defendant, they possessed probable cause to arrest him based upon, inter alia, a showup identification made by the complainant (see CPL 140.10 [1] [b]; People v De Bour, 40 NY2d at 223; People v Nunez, 82 AD3d 1128, 1129; People v Hill, 41 AD3d 733, 734).

The defendant’s contention that the Supreme Court erred in permitting improper bolstering testimony is unpreserved for appellate review and, in any event, is without merit. The officer’s testimony did not constitute improper bolstering pursuant to People v Trowbridge (305 NY 471) (see People v Williams, 216 AD2d 211, 212; People v Acosta, 174 AD2d 363).

The defendant’s contention concerning an alleged Brady violation (see Brady v Maryland, 373 US 83) is unpreserved for appellate review and, in any event, is without merit.

The defendant received the effective assistance of counsel (see People v Turner, 5 [*2]NY3d 476, 480; People v Baldi, 54 NY2d 137).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80).

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Bolton                2011-04788         2012 NY Slip Op 08143    “Decided on November 28, 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.

 

2011-04788

(Ind. No. 11-00050)

 

 

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

 

v

 

Robert Bolton, appellant.

 

 

 

 

 

Jane M. Bloom, Rock Hill, N.Y., for appellant.

Francis D. Phillips II, District Attorney, Goshen, N.Y.

(Lauren E. Grasso and Andrew R. Kass of

counsel), for respondent.

 

 

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Orange County (DeRosa, J.), rendered May 11, 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.

A plea of guilty will be upheld as valid if it was entered into voluntarily, knowingly, 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 into voluntarily, knowingly, and intelligently. Contrary to his contention, the County Court properly apprised the defendant of the duration of postrelease supervision he was agreeing to as part of the plea bargain (cf. People v Catu, 4 NY3d 242, 245).

The defendant’s remaining contention, that the County Court should have adjudicated him a youthful offender, is unpreserved for appellate review (see People v Stokes, 28 AD3d 592), and, in any event, without merit (see People v McCoy, 35 AD3d 237).

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Brown                2007-11732         2012 NY Slip Op 08144    “Decided on November 28, 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.

 

2007-11732

(Ind. No. 1197/07)

 

 

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

 

v

 

Andrew Brown, appellant.

 

 

 

 

 

Joseph A. Hanshe, Sayville, N.Y., for appellant.

Kathleen M. Rice, District Attorney, Mineola, N.Y. (Robert

A. Schwartz, Laurie K. Gibbons,

and Jessica L. Cepriano of counsel),

for respondent.

 

 

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Kase, J.), rendered December 7, 2007, convicting him of criminal possession of a controlled substance in the third degree (four counts) and criminal sale of a controlled substance in the third degree (four counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant’s contention, he was not deprived of the effective assistance of counsel. Considering the totality of the evidence, the law, and the circumstances of the case, trial counsel provided meaningful representation (see People v Beneveneto, 91 NY2d 708, 712; see also People v Caban, 5 NY3d 143, 152; People v Stultz, 2 NY3d 277, 287; People v Rivera, 71 NY2d 705, 709).

The defendant’s remaining contentions, that he was deprived of due process when the Supreme Court denied his motion to suppress certain evidence without holding a Dunaway/Mapp hearing (see Mapp v Ohio, 367 US 643; Dunaway v New York, 442 US 200), and because the close quarters of the courtroom prohibited him from holding private conversations with his attorney, are without merit.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Bruno 1990-03213         2012 NY Slip Op 08145    “Decided on November 28, 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, JJ.

 

1990-03213

(Ind. No. 86-01572)

 

 

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

 

v

 

Felix Bruno, appellant.

 

 

 

 

 

Felix Bruno, Coxsackie, N.Y., appellant pro se.

Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie

G. Sapakoff and Richard Longworth

Hecht of counsel), for respondent.

 

 

DECISION & ORDER

Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated June 11, 1990 (People v Bruno, 162 AD2d 545), affirming a judgment of the County Court, Westchester County, rendered July 15, 1988.

ORDERED that the application is denied.

The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v Barnes, 463 US 745; People v Stultz, 2 NY3d 277).

ENG, P.J., MASTRO, RIVERA and SKELOS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Byrd    2011-02775         2012 NY Slip Op 08146    “Decided on November 28, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

WILLIAM F. MASTRO, J.P.

PETER B. SKELOS

CHERYL E. CHAMBERS

SANDRA L. SGROI, JJ.

 

2011-02775

(Ind. No. 3019/09)

 

 

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

 

v

 

Ron Byrd, appellant.

 

 

 

 

 

Lynn W. L. Fahey, New York, N.Y., for appellant.

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

Joblove and Maria Park of counsel;

Jason D. Krumenaker on the brief), for

respondent.

 

 

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (D’Emic, J.), rendered October 25, 2010, convicting him of burglary in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant’s contention, he validly waived his right to appeal. The Supreme Court sufficiently “”describ[ed] the nature of the right being waived without lumping that right into the panoply of trial rights automatically forfeited upon pleading guilty and elicit[ed] agreements of understanding from the defendant”” (People v Lopez, 6 NY3d 248, 257; cf. People v Bradshaw, 18 NY3d 257, 265). The defendant’s valid waiver of his right to appeal precludes review of his contention that the sentence imposed was excessive (see People v Lopez, 6 NY3d at 255).

MASTRO, J.P., SKELOS, CHAMBERS and SGROI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Clark   2007-10512         2012 NY Slip Op 08147    “Decided on November 28, 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.

 

2007-10512

(Ind. No. 07-00199)

 

 

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

 

v

 

Taron Clark, appellant.

 

 

 

 

 

Gary E. Eisenberg, New City, N.Y., for appellant.

Francis D. Phillips II, District Attorney, Goshen, N.Y.

(Elizabeth L. Guinup and Andrew R. Kass

of counsel), for respondent.

 

 

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.), rendered November 8, 2007, convicting him of assault in first degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

On the night of the offense in question, the complainant arranged to purchase drugs from the defendant, from whom he had previously purchased drugs, even though the complainant could not afford to pay for the drugs. After accepting a bag of drugs from the defendant, the complainant, without paying, started to run in the direction of a car in which his friend was waiting. The complainant was then stabbed repeatedly from behind, sustaining serious injuries.

Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621), 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 their demeanor (see People v Mateo, 2 NY3d 383, 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, including the jury’s determination that the defendant was the individual who committed the crimes of assault in the first degree and criminal possession of a weapon in the third degree, was not against the weight of the evidence (see People v Romero, 7 NY3d 633).

The defendant’s contention that he was entitled to a charge on circumstantial evidence is unpreserved for appellate review (see CPL 470.05[2]). In any event, in light of the direct evidence of the defendant’s guilt, including the testimony of the complainant and an eyewitness, as well as the defendant’s admissions, the defendant was not entitled to a circumstantial evidence charge (see People v Roldan, 88 NY2d 826, 827; People v Daddona, 81 NY2d 990, 992; People v Barnes, 50 NY2d 375; People v Licitra, 47 NY2d 554, 558; People v Garson, 69 AD3d 650; People v Iverson, 56 AD3d 491). [*2]

The defendant’s contentions regarding the prosecutor’s summation comments are unpreserved for appellate review (see People v Romero, 7 NY3d 911, 912), and, in any event, do not warrant reversal (see People v Burroughs, 98 AD3d 583, 584; People v Kadry, 30 AD3d 440).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80).

The defendant’s remaining contentions are without merit.

SKELOS, J.P., FLORIO, LEVENTHAL and HALL, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Cotsifas             2011-01770         2012 NY Slip Op 08148    “Decided on November 28, 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.

 

2011-01770

(Ind. No. 2270/09)

 

 

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

 

v

 

Leonidas Cotsifas, appellant.

 

 

 

 

 

Leon H. Tracy, Jericho, N.Y., for appellant.

Kathleen M. Rice, District Attorney, Mineola, N.Y. (Lisa T.

Fleischer and Kevin C. King of

counsel), for respondent.

 

 

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Sullivan, J.), rendered January 25, 2011, convicting him of assault in the first degree, burglary in the first degree (two counts), burglary in the second degree (three counts), grand larceny in the third degree, criminal possession of stolen property in the third degree, attempted grand larceny in the third degree, unlawful imprisonment in the first degree, petit larceny (two counts), possession of burglar’s tools, attempted grand larceny in the fourth degree, unauthorized use of a vehicle in the third degree, endangering the welfare of a child, criminal possession of a weapon in the fourth degree, and criminal possession of stolen property in the fifth 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, identification testimony, and certain of his statements to law enforcement officials.

ORDERED that the judgment is affirmed.

The record supports the hearing court’s determinations that the People established that the police had reasonable suspicion to detain the defendant and that the reasonable suspicion ripened into probable cause to place him under arrest (see People v Mobley, 58 AD3d 756, 756-757). Accordingly, the hearing court properly denied those branches of the defendant’s omnibus motion which were to suppress physical evidence, identification testimony, and certain of his statements to law enforcement officials.

The Supreme Court properly denied the defendant’s request for a charge on the justification defense with respect to the charge of assault in the first degree, since no reasonable view of the evidence supported such a charge (see People v Watts, 57 NY2d 299, 301). Viewed in the light most favorable to the defendant, the evidence was not sufficient to support a finding that the victim, rather than the defendant, was the “”initial aggressor”” (Penal Law § 35.15[1][b]; see CJI2d[NY] Justification: Use of Physical Force in Defense of a Person [definition of “”initial aggressor””]; CJI2d[NY] Justification: Use of Deadly Force in Defense of a Person [definition of “”initial aggressor””]). In any event, the defendant’s use of deadly force against the victim would not have been justified since no rational view of the evidence would permit a jury to conclude that the [*2]defendant satisfied his duty to retreat (see Penal Law § 35.15[2][a]; People v McGhee, 4 AD3d 485, 486; People v Powell, 181 AD2d 923).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80).

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Devaney           2011-04157         2012 NY Slip Op 08149    “Decided on November 28, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

WILLIAM F. MASTRO, J.P.

ANITA R. FLORIO

RUTH C. BALKIN

CHERYL E. CHAMBERS, JJ.

 

2011-04157

2011-04159

2011-04160

 

 

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

 

v

 

Terrence Devaney, appellant. (S.C.I. Nos. 1625/06, 1304/07, 1066/09)

 

 

 

 

 

Kent V. Moston, Hempstead, N.Y., for appellant.

Kathleen M. Rice, District Attorney, Mineola, N.Y. (Robert

A. Schwartz and Laurie K. Gibbons

of counsel), for respondent.

 

 

DECISION & ORDER

Appeals by the defendant, as limited by his motion, from three sentences of the Supreme Court, Nassau County (Calabrese, J.), imposed April 6, 2011, on the grounds, inter alia, that the sentences are illegal.

ORDERED that the sentences are affirmed.

Contrary to the defendant’s contention, the sentences imposed were not illegal.

Although the defendant’s remaining contentions also survive an otherwise valid waiver of his right to appeal (see People v Seaberg, 74 NY2d 1), they are without merit.

MASTRO, J.P., FLORIO, BALKIN and CHAMBERS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Figueroa            2011-05655         2012 NY Slip Op 08150    “Decided on November 28, 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.

 

2011-05655

(Ind. No. 93/08)

 

 

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

 

v

 

Luis M. Figueroa, appellant.

 

 

 

 

 

Salvatore C. Adamo, New York, N.Y., for appellant.

William V. Grady, District Attorney, Poughkeepsie, N.Y.

(Bridget Rahilly Steller of counsel),

for respondent.

 

 

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Dutchess County (Forman, J.), rendered May 31, 2011, convicting him of manslaughter in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant pleaded guilty with the understanding that he would receive the sentence he bargained for, which was a determinate term of 20 years in prison, plus 5 years of postrelease supervision. The defendant’s plea of guilty was knowingly, intelligently, and voluntarily entered (see People v Fiumefreddo, 82 NY2d 536, 543; People v Lopez, 71 NY2d 662, 666; People v Harris, 61 NY2d 9, 17). Moreover, the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80).

The defendant received the effective assistance of counsel (see People v Taylor, 1 NY3d 174, 176; see also People v Benevento, 91 NY2d 708, 712; People v Baldi, 54 NY2d 137, 146-147).

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Fogel  2005-09532         2012 NY Slip Op 08151    “Decided on November 28, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

WILLIAM F. MASTRO, J.P.

DANIEL D. ANGIOLILLO

JOHN M. LEVENTHAL

PLUMMER E. LOTT, JJ.

 

2005-09532

2009-00774

(Ind. No. 2319/02)

 

 

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

 

v

 

Al Fogel, appellant.

 

 

 

 

 

Al Fogel, Stormville, N.Y., appellant pro se.

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

(John Castellano and Edward D.

Saslaw of counsel), for respondent.

 

 

DECISION & ORDER

Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated May 4, 2010 (People v Fogel, 73 AD3d 803), affirming (1) a judgment of the Supreme Court, Queens County, rendered October 3, 2005, and (2) an order of the same court dated September 18, 2008.

ORDERED that the application is denied.

The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v Barnes, 463 US 745; People v Stultz, 2 NY3d 277).

MASTRO, J.P., ANGIOLILLO, LEVENTHAL and LOTT, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Francis               2011-04193         2012 NY Slip Op 08152    “Decided on November 28, 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.

 

2011-04193

(Ind. No. 10-00238)

 

 

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

 

v

 

Anthony Francis, appellant.

 

 

 

 

 

John F. Ryan, White Plains, N.Y. (Salvatore A. Gaetani of

counsel), for appellant.

Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie

Sapakoff and Steven Bender of

counsel), for respondent.

 

 

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Westchester County (Hubert, J.), rendered March 24, 2011, convicting him of robbery in the first degree (two counts), criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Westchester County, for resentencing before a different Judge in accordance herewith.

The defendant contends that the County Court improperly considered materially untrue assumptions and charges of which he was acquitted as a basis for sentencing. We reach that issue in the interest of justice.

The remarks of the County Court demonstrate that, in imposing sentence, it improperly speculated that the defendant attempted to kidnap the complainant and intended to burglarize his residence. Since the court sentenced the defendant, in part, “”on the basis of materially untrue assumptions or misinformation,”” the defendant was denied due process, and must be resentenced (People v Metellus, 46 AD3d 578, 579; see People v Naranjo, 89 NY2d 1047; People v Wilson, 303 AD2d 773). Accordingly, we vacate the sentence and remit the matter to the County Court, Westchester County, for resentencing before a different Judge.

The defendant’s contention that the County Court improperly considered charges of which he was acquitted as a basis for sentencing is without merit.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Jackson              2009-01511         2012 NY Slip Op 08153    “Decided on November 28, 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.

 

2009-01511

(Ind. No. 1973/07)

 

 

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

 

v

 

H. Drew Jackson, appellant.

 

 

 

 

 

Robert C. Mitchell, Riverhead, N.Y. (John M. Dowden of counsel),

for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Lauren

Tan of counsel), for respondent.

 

 

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Crecca, J.), rendered January 29, 2009, convicting him of assault in the second degree and criminal contempt in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

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 of assault in the second degree and criminal contempt in the first degree 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 are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633).

The defendant’s contention that the testimony of the People’s expert concerning bloodstain pattern analysis impermissibly bolstered the testimony of the complaining witnesses is unpreserved for appellate review (see CPL 470.05[2]), and, in any event, is without merit (see generally People v Ocampo, 52 AD3d 741, 742). The defendant’s contention that expert testimony regarding bloodstain pattern analysis was improper because it addressed matters which were not beyond the ken of the jury is unpreserved for appellate review (see CPL 470.05[2]), and, in any event, is without merit (see People v Pike, 63 AD3d 1692, 1694; People v Delosh, 2 AD3d 1047, 1049; People v Whitaker, 289 AD2d 84; People v Barnes, 267 AD2d 1020, 1021). The defendant’s contention that the expert improperly testified as to matters and conclusions which were not contained in his report is without merit (see CPL 240.20[1][c]).

Contrary to the defendant’s contention, the prosecutor properly questioned him during his cross-examination regarding alleged prior bad acts since the defendant opened the door to this line of questioning during his direct examination (see e.g. People v Pinto, 56 AD3d 494, 495; People v Rios, 166 AD2d 616, 618).

The defendant’s challenges to various remarks made by the prosecutor during her [*2]summation are unpreserved for appellate review (see CPL 470.05[2]). In any event, the challenged remarks were fair response to arguments and issues raised on summation by the defense, and fair comment on the evidence (see People v Ashwal, 39 NY2d 105, 109-110).

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Kings   2008-01714         2012 NY Slip Op 08154    “Decided on November 28, 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.

 

2008-01714

(Ind. No. 5866/06)

 

 

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

 

v

 

James Kings, appellant.

 

 

 

 

 

Lynn W. L. Fahey, New York, N.Y. (David Lowry and Lisa Napoli

of counsel), for appellant.

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

Joblove, Sholom J. Twersky, and Jill

Oziemblewski of counsel), for

respondent.

 

 

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Sullivan, J.), rendered February 4, 2008, convicting him of burglary in the second degree and menacing in the second degree, upon a jury verdict, and imposing sentence. By decision and order on motion of this Court dated October 14, 2010, the matter was remitted to the Supreme Court, Kings County, for a reconstruction hearing with respect to those proceedings conducted in this matter on October 1, 2007, which could not be transcribed, and thereafter to report to this Court with all convenient speed, and the appeal was held in abeyance. The Supreme Court has now submitted its report.

ORDERED that the judgment is affirmed.

On the defendant’s appeal from a judgment of conviction, this Court, in a prior decision and order on motion, remitted the matter to the Supreme Court for a reconstruction hearing with respect to certain proceedings that could not be transcribed. The defendant now contends that the reconstruction hearing was inadequate to protect his right of appeal. A presumption of validity and regularity attends all judgments of conviction (see People v Williams, 29 NY2d 882), and that presumption may only be rebutted by substantial evidence to the contrary (see People v Andino, 183 AD2d 834; People v Smalls, 116 AD2d 675, 676; see also People v Glass, 43 NY2d 283, 287). Moreover, “”unless minutes have become unavailable because of any active fault on the part of the People, it does not necessarily follow from the fact that their absence compels resort to a less perfect record, that the right to appeal must be deemed to be frustrated'”” (People v Glass, 43 NY2d at 285-286, quoting People v Rivera, 39 NY2d 519, 523). Thus, it is the defendant’s burden to demonstrate that genuine appealable issues exist, and that alternative methods of providing an adequate record are not available, before the defendant is entitled to reversal of his conviction (see People v Andino, 183 AD2d 834; People v Smalls, 116 AD2d at 676; see also People v Glass, 43 NY2d at 287).

Our review of the reconstructed minutes satisfies us that the hearing justice, who also presided at the defendant’s trial, adequately reconstructed the missing portions of the record with the [*2]aid of both the defense counsel and the prosecutor as well as the court’s own notes and other documents. The defendant’s speculation that objections might have been made in connection with the prosecutor’s summation or the jury charge, but that no one was able to recall them, is insufficient to rebut the presumption of regularity in the proceedings. Thus, the defendant has failed to demonstrate that the reconstruction hearing was inadequate to protect his right of appeal (see People v Breaziel, 246 AD2d 310, 310-311; People v Andino, 183 AD2d at 834-835; see also People v Mealer, 57 NY2d 214, 219, cert denied 460 US 1024; cf. People v Jacobs, 286 AD2d 404, 405; People v Smith, 248 AD2d 568; People v Laracuente, 136 AD2d 742, 743-744).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80).

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Marsh                2010-02418         2012 NY Slip Op 08155    “Decided on November 28, 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.

 

2010-02418

(Ind. No. 2453/08)

 

 

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

 

v

 

Arlene K. Marsh, appellant.

 

 

 

 

 

Robert C. Mitchell, Riverhead, N.Y. (Kirk R. Brandt of

counsel), for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Karla

Lato of counsel), for respondent.

 

 

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Suffolk County (Efman, J.), rendered January 19, 2010, convicting her of reckless assault of a child and endangering the welfare of a child, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was tried on charges of reckless assault of a child (see Penal Law § 120.02) and endangering the welfare of a child (see Penal Law § 260.10). The defendant testified on her own behalf and admitted that, while babysitting for the then-15-month-old child of a friend, she picked the child up by the lower arms, below the elbows, and threw him into a crib, causing him to strike his head. The child sustained severe injuries, including traumatic injury to his brain resulting in brain damage. The jury found the defendant guilty of reckless assault of a child and endangering the welfare of a child.

The defendant’s contention that the evidence was legally insufficient to support her conviction of reckless assault of a child is unpreserved for appellate review (see CPL 470.05[2]; People v Hawkins, 11 NY3d 484, 492), 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, 621), we find that it was legally sufficient to establish the defendant’s guilt of reckless assault of a child 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, 349), 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).

The defendant’s contention that she was deprived of a fair trial by the County Court’s erroneous instruction with respect to the count of reckless assault of a child in response to a jury note is unpreserved for appellate review (see CPL 470.05[2]; People v Clark, 298 AD2d 461), and we decline to reach it in the exercise of our interest of justice jurisdiction (see CPL 470.15[16]). [*2]

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80).

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Mobley              1995-07601         2012 NY Slip Op 08156    “Decided on November 28, 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

ANITA R. FLORIO, JJ.

 

1995-07601

(Ind. No. 89846)

 

 

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

 

v

 

Corey K. Mobley, appellant.

 

 

 

 

 

Corey K. Mobley, Alden, N.Y., appellant pro se.

Kathleen M. Rice, District Attorney, Mineola, N.Y. (Robert

A. Schwartz and Jason R. Richards

of counsel), for respondent.

 

 

DECISION & ORDER

Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated March 27, 2000 (People v Mobley, 253 AD2d 530), affirming a judgment of the County Court, Nassau County, rendered July 26, 1995.

ORDERED that the application is denied.

The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v Barnes, 463 US 745; People v Stultz, 2 NY3d 277).

ENG, P.J., MASTRO, RIVERA and FLORIO, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Muhammad    2010-04785         2012 NY Slip Op 08157    “Decided on November 28, 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.

 

2010-04785

(Ind. No. 500/06)

 

 

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

 

v

 

Naim Muhammad, appellant.

 

 

 

 

 

Steven Banks, New York, N.Y. (Jonathan Garelick of counsel),

for appellant.

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

(John M. Castellano and Merri Turk

Lasky of counsel), for respondent.

 

 

DECISION & ORDER

Appeal by the defendant from a judgment of Supreme Court, Queens County (Lasak, J.), rendered April 28, 2010, convicting him of murder in the second degree (two counts), attempted murder in the second degree (two counts), criminal possession of a weapon in the second degree (two counts), and criminal possession of a weapon in the third degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

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 prove the defendant’s guilt beyond a reasonable doubt of murder in the second degree as to Derrick Samuels and of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree. 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 reviewing the record here, we are satisfied that the verdict of guilt in connection with these crimes was not against the weight of the evidence (see People v Romero, 7 NY3d 633).

The defendant’s contention that his conviction of attempted murder in second degree as to Jeffrey Roddy was not supported by legally sufficient evidence is unpreserved for appellate review (see CPL 470.05[2]; People v Hawkins, 11 NY3d 484, 492; People v Gray, 86 NY2d 10, 19; People v McDaniel, 84 AD3d 1410, 1411). 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 prove 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 at 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; People v Bleakley, 69 NY2d at 495). Upon reviewing the record here, we are satisfied that the verdict of guilt in connection with the crime of attempted murder in the second degree as to [*2]Jeffrey Roddy was not against the weight of the evidence (see People v Romero, 7 NY3d 633).

Contrary to defendant’s contention, the Supreme Court properly denied his application to charge the jury on manslaughter in the first degree as a lesser-included count of murder in the second degree in connection with the murder of Jeanette Boskett. There was no reasonable view of the evidence which would support a finding that the defendant committed manslaughter in the first degree, but did not commit murder in the second degree (see CPL 300.50; see also People v Butler, 84 NY2d 627; People v Scarborough, 49 NY2d 364).

The defendant’s contention that the Supreme Court should have granted his request for a missing witness charge as to James Everett and Johnson Thompson is without merit.

The sentence imposed was not excessive (see People v Delgado, 80 NY2d 780; People v Thompson, 60 NY2d 513, 519; People v Suitte, 90 AD2d 80, 85-86).

SKELOS, J.P., FLORIO, LEVENTHAL and HALL, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Niedwieski       2011-01452         2012 NY Slip Op 08158    “Decided on November 28, 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.

 

2011-01452

(Ind. No. 1632/10)

 

 

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

 

v

 

Ryan Niedwieski, appellant.

 

 

 

 

 

Salvatore C. Adamo, New York, N.Y., for appellant.

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

Constant of counsel), for respondent.

 

 

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Suffolk County (Efman, J.), rendered January 25, 2011, convicting him of burglary in the third degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that his plea was not knowingly, voluntarily, and intelligently entered, and that he was not informed, at the time he entered his plea, of the specific amount of restitution that he would have to pay. Although these contentions survive the defendant’s otherwise valid waiver of the right to appeal (see People v Alonzo, 90 AD3d 1065; People v Isaacs, 71 AD3d 1161), they are unpreserved for appellate review (see CPL 220.60[3]; 470.05[2]; People v Toxey, 86 NY2d 725, 726; People v Lopez, 71 NY2d 662, 665; People v Bunn, 79 AD3d 1143). With respect to the defendant’s contention concerning restitution, at the plea proceeding, the defendant was informed that his sentence would include restitution, the amount of which would be determined by the probation department, and, at the outset of the sentencing proceeding, he was made aware of the specific amount of restitution to be imposed. Since the defendant did not move to withdraw his plea of guilty or object before sentence was imposed, he failed to preserve for appellate review his contention that no specific amount of restitution was included in the terms of his plea agreement (see People v Murray, 15 NY3d 725, 726-727). In any event, the defendant’s contentions are without merit.

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

ENTER: [*2]

Aprilanne Agostino

Clerk of the Court”

People v Palompelli        1999-10578         2012 NY Slip Op 08159    “Decided on November 28, 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, JJ.

 

1999-10578

(Ind. No. 99-00065)

 

 

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

 

v

 

Frank Palompelli, appellant.

 

 

 

 

 

Frank Palompelli, Stormville, N.Y., appellant pro se.

Francis D. Phillips II, District Attorney, Goshen, N.Y.

(Andrew R. Kass of counsel), for

respondent.

 

 

DECISION & ORDER

Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated July 22, 2002 (People v Palompelli, 296 AD2d 557), affirming a judgment of the County Court, Orange County, rendered October 14, 1999.

ORDERED that the application is denied.

The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v Barnes, 463 US 745; People v Stultz, 2 NY3d 277).

ENG, P.J., MASTRO, RIVERA and SKELOS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Pearson             2006-03714         2012 NY Slip Op 08160    “Decided on November 28, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

REINALDO E. RIVERA, J.P.

DANIEL D. ANGIOLILLO

SHERI S. ROMAN

SANDRA L. SGROI, JJ.

 

2006-03714

(Ind. No. 3668/03)

 

 

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

 

v

 

Kayson Pearson, appellant.

 

 

 

 

 

Kayson Pearson, Malone, N.Y., appellant pro se.

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

Joblove and Ruth E. Ross of counsel),

for respondent.

 

 

DECISION & ORDER

Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated November 16, 2010 (People v Pearson, 78 AD3d 968), affirming a judgment of the Supreme Court, Kings County, rendered April 11, 2006, as amended May 31, 2006.

ORDERED that the application is denied.

The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v Barnes, 463 US 745; People v Stultz, 2 NY3d 277).

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Pena   2010-05873         2012 NY Slip Op 08161    “Decided on November 28, 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.

 

2010-05873

(Ind. No. 3298/08)

 

 

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

 

v

 

Jose Pena, appellant.

 

 

 

 

 

Lynn W. L. Fahey, New York, N.Y. (Jessica M. McNamara of

counsel), for appellant, and appellant pro se.

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

Joblove, Anthea H. Bruffee, Jennifer

L. Feldman, and Michael L. Brenner

of counsel), for respondent.

 

 

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dowling, J.), rendered May 17, 2010, convicting him of criminal possession of a weapon in the second degree and resisting arrest, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Guzman, J.), of that branch of the defendant’s omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is affirmed.

The defendant’s contention that the Supreme Court erred in declining to instruct the jury on temporary and lawful possession of a weapon is unpreserved for appellate review, as he failed to request such a charge at trial (see People v Silas, 308 AD2d 465; People v Kouvaras, 197 AD2d 638; see also People v Caldarola, 45 AD3d 600). In any event, this contention is without merit, as there was no reasonable view of the evidence that the defendant had a legal excuse for possessing the weapon, and that the weapon had not been used in a dangerous manner (see People v Hayes, 51 AD3d 688; People v Medina, 237 AD2d 382; People v Kouvaras, 197 AD2d at 639).

The defendant’s contention that the Supreme Court erred in denying his request to instruct the jury on voluntary possession is without merit. The court’s charge, as a whole, adequately conveyed to the jury the correct applicable legal standards and principles, and all of the elements of criminal possession of a weapon in the second degree (see People v Adams, 55 AD3d 616; People v Howell, 11 AD3d 560; People v Callender, 232 AD2d 650). The jury was correctly charged regarding the mens rea of criminal possession of a weapon in the second degree: that the defendant acted knowingly (see People v Perry, 67 AD3d 1046).

The hearing court properly denied that branch of the defendant’s omnibus motion which was to suppress physical evidence. The remaining contention raised in the defendant’s pro se supplemental brief is without merit. [*2]

ENG, P.J., FLORIO, SGROI and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Perales              2008-08868         2012 NY Slip Op 08162    “Decided on November 28, 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.

 

2008-08868

(Ind. No. 2077/05)

 

 

[*1]The People of the State of New York, plaintiff,

 

v

 

Richard Perales, defendant.

 

 

 

 

 

Richard Perales, Napanoch, N.Y., defendant pro se.

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

(John Castellano and Edward D.

Saslaw of counsel), for plaintiff.

 

 

DECISION & ORDER

Application by the defendant for a writ of error coram nobis seeking leave to file a late notice of appeal from a judgment of the Supreme Court, Queens County, rendered June 15, 2007.

ORDERED that the application is denied.

The defendant has not established his entitlement to the relief requested (see People v Syville, 15 NY3d 391).

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Reid    2010-10594         2012 NY Slip Op 08163    “Decided on November 28, 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.

 

2010-10594

(Ind. No. 9659/01)

 

 

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

 

v

 

Manuel Reid, appellant.

 

 

 

 

 

Steven Banks, New York, N.Y. (Kristina Schwarz of counsel),

for appellant.

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

Joblove and Jodi L. Mandel of

counsel), for respondent.

 

 

DECISION & ORDER

Appeal by the defendant from a resentence of the Supreme Court, Kings County (Demarest, J.), imposed September 17, 2010, upon his conviction of manslaughter in the first degree, upon his plea of guilty. 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 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).

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Sandoval           2010-07444         2012 NY Slip Op 08164    “Decided on November 28, 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.

 

2010-07444

(Ind. No. 1873/09)

 

 

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

 

v

 

Cristian Sandoval, appellant.

 

 

 

 

 

Martin Geoffrey Goldberg, Franklin Square, N.Y., for appellant,

and appellant pro se.

Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J.

Smiley, Andrea M. DiGregorio,

Douglas Noll, and Donald Berk of counsel),

for respondent.

 

 

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Nassau County (Robbins, J.), rendered July 20, 2010, convicting him of manslaughter 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.

On August 7, 2009, Jobani Reyes and Zach Rosales were walking home from a movie theater in Westbury at approximately 10:00 P.M., when they passed a group of young men, including the defendant and the codefendant, standing on a street corner. Reyes testified that as he and Rosales passed by the group, he heard the word “”chevala,”” which he understood as a derogatory Spanish term meaning “”enemy”” or “”coward.”” Reyes further testified that immediately after he heard that word, the defendant “”lifted up his shirt and shows us [a] knife . . . [and] started saying, la mara, la mara,’ . . . and was making gang signs [with his fingers].”” According to later testimony from a Nassau County Police Department detective assigned to the “”gang section”” of the Special Investigations Squad, the term “”la mara”” refers to a certain gang which identifies itself as “”MS-13,”” and which is known to have a presence in the Westbury area. The detective also testified that the term “”la mara”” is used by MS-13 gang members when they are involved in “”a fight or assault[ ] . . . to let the person know that it is la mara doing it.””

Reyes and Rosales started running, and they were pursued by the defendant and the codefendant. After Reyes and Rosales separated at a corner, the two men caught up with Rosales. When Reyes returned to aid his friend, he witnessed the defendant repeatedly stabbing Rosales with a knife, and the codefendant beating Rosales with a belt. While the two men were standing over Rosales, a van driven by a friend of Rosales pulled up at the scene, and Reyes heard the codefendant say to the defendant, “”Vamanos, Lucky,”” meaning,”” Let’s go, Lucky.”” The defendant and the codefendant then fled the area. Rosales subsequently died as a result of his stab wounds.

The sole defense witness to testify at trial was the defendant’s 14-year-old former girlfriend, who testified, inter alia, that she was the mother of the defendant’s child. She also [*2]testified that on the night Rosales was stabbed, beginning at approximately 10:00 P.M., she met with the defendant for about 20 minutes in front of his house.

The jury found the defendant guilty of manslaughter in the first degree and criminal possession of a weapon in the fourth degree. The defendant appeals from the judgment of conviction.

Contrary to the defendant’s contention, he was not deprived of a fair trial by the prosecutor’s references in her opening statement to the existence of local gangs in the area where the homicide occurred, or by her assertion that the defendant perceived Reyes and Rosales as enemies because they were not part of the MS-13 gang. The references to “”gangs”” were relevant to the defendant’s motive and intent in committing the homicide, and were necessary background to explain the sequence of events to the jury, and the prosecutor’s opening remarks were supported, inter alia, by the testimony of the detective who was experienced in gang identification and gang lore (see People v Ramirez, 23 AD3d 500, 501; People v Oliver, 19 AD3d 512; People v Filipe, 7 AD3d 539; People v Newby, 291 AD2d 460; People v Herrera, 287 AD2d 579). Further, any prejudice was alleviated by the trial court’s instruction to the jury that the prosecutor’s references to gangs were merely what the People intended the proof to show at trial (see People v Smart, 96 NY2d 793, 795: People v Ramirez, 23 AD3d at 500; People v Oliver, 19 AD3d at 513; People v Newby, 291 AD2d 460).

The defendant’s contentions that the trial court improperly allowed the People to present evidence that he had committed the uncharged crime of statutory rape by adducing testimony that the sole defense witness was the mother of his child, and that he was prejudiced by deficiencies in the Nassau County crime lab, are unpreserved for appellate review. In any event, these contentions are without merit. Accordingly, the defendant’s additional contention that the cumulative effect of these alleged errors deprived him of a fair trial is also without merit.

Further, the defendant’s contentions raised in his pro se supplemental brief that the Supreme Court erred in denying his Batson challenges (see Batson v Kentucky, 476 US 79) to the prosecutor’s peremptory challenges to three prospective jurors during the first round of jury selection (see People v James, 99 NY2d 264, 271-272; People v Lemay, 69 AD3d 757; People v Thompson, 34 AD3d 852, 853; cf. People v Reid, 57 AD3d 695, 696) are also unpreserved for appellate review. In any event, the defendant’s Batson challenges were properly denied because the defendant failed to meet his burden of demonstrating a prima facie case of discrimination (cf. People v James, 99 NY2d at 271; see People v Thatcher, 85 AD3d 1065, 1066; People v Quiles, 74 AD3d 1241, 1242).

Contrary to the defendant’s contention, the prosecutor’s summation remarks which he challenges on appeal did not deprive him of a fair trial, as they constituted fair comment on the evidence (see People v Stewart, 89 AD3d 1044, 1045; People v Sharpe, 87 AD3d 1168; People v Cass, 79 AD3d 768).

The defendant’s remaining contentions are without merit.

DILLON, J.P., AUSTIN, SGROI and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Scott   2011-09783         2012 NY Slip Op 08165    “Decided on November 28, 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.

 

2011-09783

(Ind. No. 131/10)

 

 

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

 

v

 

Ronin Scott, appellant.

 

 

 

 

 

Thomas N.N. Angell, Poughkeepsie, N.Y. (Steven Levine of

counsel), 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 September 27, 2011, convicting him of assault in the third degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant’s contentions that his plea of guilty was not knowing, voluntary, and intelligent because the allocution was factually insufficient and that the court failed to specifically enumerate all of the rights to which he was entitled are unpreserved for appellate review (see CPL 220.60[3]; 470.05[2]; People v Toxey, 86 NY2d 725, 726; People v Lopez, 71 NY2d 662, 665; People v Henson, 96 AD3d 1076, 1077; People v Bunn, 79 AD3d 1143). While there is an exception to the preservation requirement when a defendant’s recitation of the facts negates an essential element of the crime, casts significant doubt on his guilt, or otherwise calls into question the voluntariness of the plea (see People v Lopez, 71 NY2d at 666), this exception does not apply here because the defendant’s plea allocution did not negate an essential element of assault in the third degree, cast significant doubt on his guilt, or call into question the voluntariness of the plea (see People v Seeber, 4 NY3d 780, 781; People v Fiumefreddo, 82 NY2d 536, 543; People v Harris, 61 NY2d 9, 18; People v Nixon, 21 NY2d 338, 353, cert denied sub nom. Robinson v New York, 393 US 1067).

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Thompson        2003-05153         2012 NY Slip Op 08166    “Decided on November 28, 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, JJ.

 

2003-05153

(Ind. No. 328/02)

 

 

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

 

v

 

Rahmel Thompson, appellant.

 

 

 

 

 

Rahmel Thompson, Stormville, N.Y., appellant pro se.

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

(John M. Castellano, Jeanette

Lifschitz, and Rona I. Kugler of counsel),

for respondent.

Lynn W. L. Fahey, New York, N.Y. (David P. Greenberg of

counsel), former appellate counsel.

 

 

DECISION & ORDER

Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated May 23, 2006 (People v Thompson, 29 AD3d 923), affirming a judgment of the Supreme Court, Queens County, rendered May 22, 2003.

ORDERED that the application is denied.

The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v Barnes, 463 US 745; People v Stultz, 2 NY3d 277).

ENG, P.J., MASTRO, RIVERA and SKELOS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Townsend        2010-10871         2012 NY Slip Op 08167    “Decided on November 28, 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.

 

2010-10871

(Ind. No. 09-00591)

 

 

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

 

v

 

John Townsend, appellant.

 

 

 

 

 

Thomas T. Keating, Dobbs Ferry, N.Y. (Joseph M. Angiolillo of

counsel), for appellant.

Francis D. Phillips II, District Attorney, Goshen, N.Y. (Robert

H. Middlemiss of counsel), for

respondent.

 

 

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Orange County (De Rosa, J.), rendered October 25, 2010, convicting him of reckless endangerment in the first degree, driving while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs, and reckless driving, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress certain statements he made to law enforcement officials.

ORDERED that the judgment is affirmed.

The defendant’s contention that the evidence was legally insufficient to support his convictions of reckless endangerment in the first degree and driving while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs is unpreserved for appellate review (see CPL 470.05[2]; People v Kolupa, 13 NY3d 786, 787). 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 of these crimes 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 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 with respect to these crimes was not against the weight of the evidence (see People v Romero, 7 NY3d 633).

Contrary to the defendant’s contention, the County Court properly declined to suppress his statement to the police that, prior to his arrest, he had drunk one beer and had taken, inter alia, oxycodone and a muscle relaxant. This post-Miranda statement (see Miranda v Arizona, 384 US 436) was sufficiently attenuated from his earlier pre-Miranda statement to the police since there was a definite and pronounced break in the questioning (see People v White, 10 NY3d 286, 292, cert denied 555 US 897; People v Nelson, 73 AD3d 811; People v Parker, 50 AD3d 1607; [*2]People v Davis, 287 AD2d 376; People v Hawthorne, 160 AD2d 727, 728-729).

The defendant’s contention that he was deprived of a fair trial when the County Court allowed a witness to testify regarding the defendant’s illegal drug use was not preserved for appellate review, as the defendant did not object or move for a mistrial following the requested curative instruction (see CPL 470.05[2]; People v Parilla, 158 AD2d 556). In any event, although the witness’s statement was improper, any prejudice to the defendant was mitigated by the court’s actions in striking the improper testimony and providing a curative instruction to the jury (see People v Benloss, 60 AD3d 686, 686-687; People v Whitely, 41 AD3d 622, 623; People v Dawkins, 27 AD3d 576, 577), which the jury is presumed to have followed (see People v Evanson, 71 AD3d 782, 783; People v Hardy, 22 AD3d 679, 680). Moreover, the error was harmless, as the evidence of the defendant’s guilt, without reference to the improper testimony, was overwhelming, and there was no significant probability that, but for the error, the jury would have acquitted the defendant (see People v Johnson, 57 NY2d 969, 971; People v Crimmins, 36 NY2d 230, 241-242).

The defendant’s contention that he was deprived of his right to a fair trial by the preclusion of certain witness testimony is without merit. The County Court did not improvidently exercise its discretion in precluding the defense from calling the defendant’s father to testify as to witnessing the defendant suffer seizures as a child since such testimony was cumulative and collateral (see People v Parks, 85 AD3d 557, 558; People v O’Connor, 154 AD2d 626, 627; People v DiMattina, 149 AD2d 725, 726).

The defendant’s contention that the County Court erred in admitting evidence of an uncharged crime is also without merit. The defendant’s statement to the police that he was driving with a suspended license was probative of the defendant’s mental state and awareness, and the probative value of that statement outweighed any potential for undue prejudice (see People v Cass, 18 NY3d 553, 561; People v Bernardez, 73 AD3d 1196, 1197; People v Norman, 40 AD3d 1128, 1129). Furthermore, the court gave appropriate limiting instructions as to the limited purpose for which that evidence was received (see People v Cockett, 95 AD3d 1230, 1231, lv denied 19 NY3d 958; People v Morris, 82 AD3d 908, 909; People v Bernardez, 73 AD3d at 1197).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80).

The defendant’s remaining contention is without merit.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Winslow            2011-05836         2012 NY Slip Op 08168    “Decided on November 28, 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.

 

2011-05836

2011-05838

 

 

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

 

v

 

Johnathan R. Winslow, appellant. (S.C.I. Nos. 839/10, 2677/10)

 

 

 

 

 

Mark Diamond, New York, N.Y., for appellant.

Kathleen M. Rice, District Attorney, Mineola, N.Y. (Donald

Berk of counsel; Danielle Shure on the

brief), for respondent.

 

 

DECISION & ORDER

Appeals by the defendant from (1) a judgment of the Supreme Court, Nassau County (Jaeger, J., at plea; Aaron, J., at sentencing), rendered February 8, 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 under Superior Court Information No. 839/10, upon his plea of guilty, and imposing sentence, and (2) a judgment of the same court (McCormack, J., at plea; Aaron, J., at sentencing), also rendered February 8, 2011, convicting him of criminal sale of a controlled substance in the third degree under Superior Court Information No. 2677/10, upon his plea of guilty, and imposing sentence.

ORDERED that the judgments are affirmed.

Contrary to the People’s contention, the defendant did not validly waive his right to appeal (see People v Lopez, 6 NY3d 248; People v Holmes, 95 AD3d 1236, lv denied 19 NY3d 997).

The defendant’s contention that the Supreme Court failed to comply with CPL 400.21 before sentencing him as a second felony offender is unpreserved for appellate review (see People v Proctor, 79 NY2d 992, 994; People v Smith, 73 NY2d 961, 962; People v Cullum, 93 AD3d 856; People v Delston, 30 AD3d 536, 536; People v Alston, 289 AD2d 339). In any event, the defendant’s contention is without merit, as the statutory purposes of CPL 400.21 have been met and the Supreme Court substantially complied with the statute (see People v Bouyea, 64 NY2d 1140, 1142). The Supreme Court provided the defendant with notice of the predicate felony statement and an opportunity to be heard. Furthermore, the defendant admitted the allegations in the predicate felony statement, and there is no indication that the defendant contemplated a challenge to the constitutionality of his prior conviction (see People v Bouyea, 64 NY2d at 1142; People v Luisi, 81 AD3d 980; People v Glynn, 72 AD3d 1351; People v Merriman, 45 AD3d 700).

The defendant’s contention that the Supreme Court failed to conduct a hearing or adduce sufficient evidence to determine the amount of restitution imposed is unpreserved for appellate review, since the defendant failed to request a hearing or otherwise challenge the amount of restitution imposed at sentencing (see People v Toomer, 61 AD3d 899, 900). In any event, since [*2]the defendant agreed to the amount of restitution imposed as part of a plea agreement, the Supreme Court did not err in imposing restitution without conducting a hearing (see id. at 900).

The defendant’s remaining contention is unpreserved for appellate review and, in any event, without merit.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Ballek v Aldana-Bernier 2011-04325ON MOTION                2012 NY Slip Op 07946    “Decided on November 21, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

RANDALL T. ENG, P.J.

RUTH C. BALKIN

L. PRISCILLA HALL

SANDRA L. SGROI, JJ.

 

2011-04325 ON MOTION

(Index No. 21267/08)

 

 

[*1]Donna Ballek, etc., respondent,

 

v

 

Lilian Aldana-Bernier, etc., et al., appellants, et al., defendant.

 

 

 

 

 

DECISION & ORDER

Motion by the appellant Lilian Aldana-Bernier for leave to reargue stated portions of an appeal from an order of the Supreme Court, Queens County, dated March 31, 2011, which was determined by a decision and order of this Court dated April 17, 2012, or, in the alternative, for leave to appeal to the Court of Appeals from the decision and order of this Court. Separate motion by the appellant Jamaica Hospital Medical Center for leave to reargue stated portions of the appeal.

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

ORDERED that the motion of the appellant Lilian Aldana-Bernier is denied; and it is further,

ORDERED that the motion of the appellant Jamaica Hospital Medical Center is granted and, upon reargument, the decision and order of this Court dated April 17, 2012, is recalled and vacated, and the following decision and order is substituted therefor:

 

 

 

 

Callan, Koster, Brady & Brennan, LLP, New York, N.Y. (Michael P. Kandler and Steven M. Kaye of counsel), for appellant Lilian Aldana-Bernier.

Arshack, Hajek & Lehrman, PLLC, New York, N.Y. (Lynn Hajek of counsel), for appellants Ernst G. Severe and Jamaica Hospital Medical Center.

The Jacob D. Fuchsberg Law Firm, LLP (Andrew S. Buzin, Alan Fuchsberg, and Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Brian J. Isaac], of counsel), for respondent.

In an action, inter alia, to recover damages for medical malpractice, etc., the defendant Lilian Aldana-Bernier appeals, and the defendants Ernst G. Severe and Jamaica Hospital Medical Center separately appeal, from an order of the Supreme Court, Queens County (O’Donoghue, J.), dated March 31, 2011, which denied their separate motions for summary judgment dismissing the complaint insofar as asserted against each of them.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying the motion of the defendants Ernst G. Severe and Jamaica Hospital Medical Center for summary judgment dismissing the complaint insofar as asserted against them, and [*2]substituting therefor a provision granting the motion except with respect to those causes of action which allege that the defendant Jamaica Hospital Medical Center is vicariously liable for the alleged medical malpractice of the defendant Lilian Aldana-Bernier; as so modified, the order is affirmed, with one bill of costs to the plaintiff payable by the defendant Lilian Aldana-Bernier, and one bill of costs to the defendants Ernst G. Severe and Jamaica Hospital Medical Center payable by the plaintiff.

On September 14, 2006, Frank Ballek was taken by ambulance to the emergency room of Jamaica Hospital Medical Center (hereinafter JHMC). A psychiatric consultation was ordered and, as a result, physician Lilian Aldana-Bernier evaluated Frank. That night, an attending physician, Ernst G. Severe, discharged Frank. Frank killed himself on or before October 7, 2006.

Frank’s wife, Donna Ballek, individually and as administrator of Frank’s estate (hereinafter the plaintiff), commenced this action, inter alia, to recover damages for medical malpractice against, among others, Aldana-Bernier, Severe, and JHMC. Subsequently, Aldana-Bernier moved for summary judgment dismissing the complaint insofar as asserted against her, and Severe and JHMC moved for summary judgment dismissing the complaint insofar as asserted against them. The Supreme Court denied the separate motions.

“”The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted community standards of practice, and evidence that such deviation or departure was a proximate cause of injury or damage”” (Castro v New York City Health & Hosps. Corp., 74 AD3d 1005, 1006; see Deutsch v Chaglassian, 71 AD3d 718, 719; Geffner v North Shore Univ. Hosp., 57 AD3d 839, 842). “”On a motion for summary judgment, a defendant physician has the burden of establishing the absence of any deviation or departure, or that the patient was not injured thereby”” (Castro v New York City Health & Hosps. Corp., 74 AD3d at 1006; see Deutsch v Chaglassian, 71 AD3d at 719; Rebozo v Wilen, 41 AD3d 457, 458). In opposition, the plaintiff need only raise a triable issue of fact as to elements on which the defendant has met its prima facie burden (see Stukas v Streiter, 83 AD3d 18, 30).

“”A psychiatrist may not be held liable for a mere error in professional judgment”” (Thomas v Reddy, 86 AD3d 602, 603-604; see Betty v City of New York, 65 AD3d 507, 509; Fotinas v Westchester County Med. Ctr., 300 AD2d 437, 438-439; Seibert v Fink, 280 AD2d 661; Weinreb v Rice, 266 AD2d 454, 455). Rather, “”for a psychiatrist to be held liable for malpractice based upon a decision made in connection with a patient’s treatment or a decision to discharge a patient from a hospital, it must be shown that the treatment decisions represented something less than a professional medical determination . . . or that the psychiatrist’s decisions were not the product of a careful evaluation”” (Ozugowski v City of New York, 90 AD3d 875, 876 [citation and internal quotation marks omitted]; see Thomas v Reddy, 86 AD3d at 604; Betty v City of New York, 65 AD3d at 509; Fotinas v Westchester County Med. Ctr., 300 AD2d at 439; Seibert v Fink, 280 AD2d at 662; Weinreb v Rice, 266 AD2d at 455; Bell v New York City Health & Hosps. Corp., 90 AD2d 270, 280-281).

Aldana-Bernier demonstrated her prima facie entitlement to judgment as a matter of law by submitting an expert affidavit demonstrating that she had not deviated or departed from accepted community standards of practice (see Betty v City of New York, 65 AD3d at 509). She did not, however, establish prima facie that no claimed deviation or departure was a proximate cause of the plaintiff’s injuries. On this element, the expert affidavit she submitted in support of her motion was entirely conclusory. Consequently, to defeat Aldana-Bernier’s motion, the plaintiff was required only to demonstrate that there was a triable issue of fact as to departure (see Stukas v Streiter, 83 AD3d at 30). The plaintiff raised a triable issue of fact on this element through the submission of an expert affidavit (see Thomas v Reddy, 86 AD3d at 604; Fotinas v Westchester County Med. Ctr., 300 AD2d at 439). Accordingly, the Supreme Court properly denied Aldana-Bernier’s motion for summary judgment dismissing the complaint insofar as asserted against her. [*3]

However, the Supreme Court should have granted the motion of Severe and JHMC for summary judgment dismissing the complaint insofar as asserted against them, except with respect to those causes of action which allege that JHMC is vicariously liable for the alleged medical malpractice of Aldana-Bernier. Severe and JHMC made a prima facie showing, through the submission of an expert affirmation, that the treatment provided to Frank by JHMC and its personnel, including Severe, did not depart from accepted standards of medical treatment. In opposition, the plaintiff failed to raise a triable issue of fact as to whether Severe departed from accepted medical practice. To the extent the plaintiff’s medical expert opined that Severe departed from accepted medical practice in connection with Frank’s treatment or discharge, that portion of the affirmation is conclusory and, thus, insufficient to raise a triable issue of fact (see Betty v City of New York, 65 AD3d at 509; Dunn v Khan, 62 AD3d 828, 829; see also Alvarez v Prospect Hosp., 68 NY2d 320, 325). The plaintiff also failed to raise a triable issue of fact as to whether any other JHMC personnel, except Aldana-Bernier, committed a departure. Accordingly, there is no basis to hold JHMC liable independent of its vicarious liability for the alleged malpractice of Aldana-Bernier.

ENG, P.J., BALKIN, HALL and SGROI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Baumann v Hanover Community Bank   2011-07179         2012 NY Slip Op 07947    “Decided on November 21, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

MARK C. DILLON, J.P.

JOHN M. LEVENTHAL

L. PRISCILLA HALL

LEONARD B. AUSTIN, JJ.

 

2011-07179

(Index No. 19191/10)

 

 

[*1]George W. Baumann, appellant,

 

v

 

Hanover Community Bank, respondent.

 

 

 

 

 

Earl Barrison, New York, N.Y. (Steven M. Barrison and Karline

Wilson of counsel), for appellant.

Cullen and Dykman, LLP, Garden City, N.Y. (James G. Ryan

and Cynthia A. Augello of counsel),

for respondent.

 

 

DECISION & ORDER

In an action, inter alia, to recover damages for breach of a loan commitment, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Bucaria, J.), dated June 7, 2011, as granted that branch of the defendant’s motion which was pursuant to CPLR 3211(a) to dismiss the complaint, and denied his cross motion for summary judgment on the issue of liability on the cause of action to recover damages for breach of the loan commitment.

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

The plaintiff commenced this action against the defendant, Hanover Community Bank, to recover damages for breach of a loan commitment, negligent and intentional infliction of emotional distress, and breach of fiduciary duty. The complaint alleges that in April 2010, the defendant issued a loan commitment to the plaintiff and his wife in connection with a residential mortgage, the mortgage closing was held on May 7, 2010, and the plaintiff’s wife died on May 12, 2010. The complaint further alleges that on May 13, 2010, when the defendant learned that the plaintiff’s wife had died, the defendant refused to fund the loan. In the order appealed from, the Supreme Court, among other things, granted that branch of the defendant’s motion which was pursuant to CPLR 3211(a) to dismiss the complaint, and denied the plaintiff’s cross motion for summary judgment on the issue of liability on the cause of action to recover damages for breach of the loan commitment.

As an initial matter, there is no merit to the defendant’s contention that the plaintiff failed to assemble a sufficient record for this Court to reach an informed decision on the merits and provide meaningful appellate review of the order insofar as appealed from (cf. Lew v Lew, 82 AD3d 1171).

On a motion to dismiss the 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), “”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”” (Leon v Martinez, 84 NY2d 83, 87-88; see Nonnon v City of New York, 9 NY3d 825, 827). However, a court may consider evidentiary material submitted by a defendant in support of a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) (see CPLR 3211[c]; Sokol v Leader, 74 AD3d 1180, 1181). “”When evidentiary material is considered”” on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion has not been converted to one for summary judgment, “”the criterion is whether the [plaintiff] has a cause of action, not whether he [or she] 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 Ginzburg, 43 NY2d 268, 275; see Basile v Wiggs, 98 AD3d 640, 641; Sokol v Leader, 74 AD3d at 1182).

Here, the complaint was predicated upon an allegation that the loan was not funded by the defendant. However, the defendant “”indisputably”” demonstrated “”through evidentiary material”” that this allegation was “”not a fact at all”” (Baron v Galasso, 83 AD3d 626, 628 [internal quotation marks omitted]), by showing that the loan was, in fact, funded. Therefore, the Supreme Court properly granted that branch of the defendant’s motion which was to dismiss the cause of action to recover damages for breach of the loan commitment. For the same reason, the Supreme Court properly denied the plaintiff’s cross motion for summary judgment on the issue of liability on this cause of action, as the plaintiff failed to make a prima facie showing of entitlement to judgment as a matter of law.

The Supreme Court also properly granted that branch of the defendant’s motion which was to dismiss the second cause of action, which was to recover damages for negligent and intentional infliction of emotional distress. With respect to the allegations sounding in negligent infliction of emotional distress, a breach of the duty of care “”resulting directly in emotional harm is compensable”” (Kennedy v McKesson Co., 58 NY2d 500, 504) when the mental injury is “”a direct, rather than a consequential, result of the breach”” (id. at 506) and when the claim possesses “”some guarantee of genuineness”” (Ferrara v Galluchio, 5 NY2d 16, 21; see Ornstein v New York City Health & Hosps. Corp., 10 NY3d 1, 6). Applying these principles, the complaint does not allege the existence of a duty on the part of the defendant to the plaintiff in connection with the subject loan commitment. As alleged, “”the parties’ relationship was a contractual one between a borrower and a bank, which does not give rise to a duty which could furnish a basis for tort liability”” (Rakylar v Washington Mut. Bank, 51 AD3d 995, 996; see Johnson v Jamaica Hosp., 62 NY2d 523, 528).

In order to state a cause of action to recover damages for intentional infliction of emotional distress, the complaint must allege conduct that was “”so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency . . . and [was] utterly intolerable in a civilized community”” (Marmelstein v Kehillat New Hempstead: Rav Aron Jofen Community Synagogue, 11 NY3d 15, 22-23 [internal quotation marks omitted]; see Howell v New York Post Co., 81 NY2d 115, 121). Here, the allegations in the complaint did not meet that burden.

The plaintiff’s remaining contentions with respect to the second cause of action are without merit.

Further, the Supreme Court properly granted that branch of the defendant’s motion which was to dismiss the cause of action to recover damages for breach of fiduciary duty for failure to state a cause of action. The elements of a cause of action to recover damages for breach of fiduciary duty are (1) the existence of a fiduciary relationship, (2) misconduct by the defendant, and (3) damages directly caused by the defendant’s misconduct (see Rut v Young Adult Inst., Inc., 74 AD3d 776). Generally, the relationship between a borrower and a bank is contractual in nature and does not create a fiduciary relationship between them (see e.g. Marine Midland Bank v Hallman’s Budget Rent-A-Car of Rochester, 204 AD2d 1007, 1007; Bank Leumi Trust Co. of N.Y. v Block 3102 Corp., 180 AD2d 588, 589; see also Call v Ellenville Natl. Bank, 5 AD3d 521, 523). Here, the complaint failed to allege that the parties’ relationship was such that “”one of them [was] under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation”” (AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 11 NY3d 146, 158 [internal [*3]quotation marks omitted]; see Roni LLC v Arfa, 18 NY3d 846, 848).

DILLON, J.P., LEVENTHAL, HALL and AUSTIN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Byers v Winthrop Univ. Hosp.     2011-08202         2012 NY Slip Op 07948    “Decided on November 21, 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.

 

2011-08202

(Index No. 17533/07)

 

 

[*1]Lisa-Anne Byers, appellant,

 

v

 

Winthrop University Hospital, et al., respondents. H. Fitzmore Harris, P.C., New York, N.Y., for appellant.

 

 

 

 

 

Montfort, Healey, McGuire & Salley, Garden City, N.Y. (Donald

S. Neumann, Jr., of counsel), for respondent Winthrop University

Hospital.

Santangelo, Benvenuto & Slattery (James W. Tuffin, Melville,

N.Y., of counsel), for respondents

Nassau Surgical Associates and Frank

A. Monteleone.

 

 

DECISION & ORDER

In an action to recover damages for medical malpractice and lack of informed consent, the plaintiff appeals from an order of the Supreme Court, Nassau County (Sher, J.), entered June 29, 2011, which denied her motion, in effect, to vacate a judgment of the same court dated June 29, 2010, dismissing the complaint pursuant to CPLR 3216, to restore the action to the calendar, and to extend her time to file a note of issue.

ORDERED that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

There is no merit to the plaintiff’s contention that the judgment improperly dismissed the complaint pursuant to CPLR 3216 and, therefore, that her motion to vacate the judgment should have been granted. The certification order dated February 16, 2010, directing the plaintiff to file a note of issue within 90 days, and warning that the complaint would be deemed dismissed without further order of the Supreme Court if the plaintiff failed to comply with that directive, had the same effect as a valid 90-day notice pursuant to CPLR 3216 (see Fenner v County of Nassau, 80 AD3d 555, 555; Sicoli v Sasson, 76 AD3d 1002, 1003; Rodriguez v Five Towns Nissan, 69 AD3d 833, 834). Having received a 90-day notice, the plaintiff was required either to serve and file a timely note of issue or to move pursuant to CPLR 2004, prior to the default date, to extend the time within which to serve and file a note of issue (see Fenner v County of Nassau, 80 AD3d at 555; Sharpe v Osorio, 21 AD3d 467, 468; DeVore v Lederman, 14 AD3d 648, 649). In light of the plaintiff’s failure to do either, the complaint was properly dismissed pursuant to CPLR 3216 (see Petersen v Lysaght, Lysaght & Kramer, P.C., 47 AD3d 783, 783; C & S Realty, Inc. v Soloff, 22 AD3d 515, 516; Vinikour v Jamaica Hosp., 2 AD3d 518, 519).

To vacate the judgment dismissing the complaint, the plaintiff was required to demonstrate a justifiable excuse for her failure to comply with the certification order and the existence of a potentially meritorious cause of action (see CPLR 3216[e]; Baczkowski v Collins [*2]Constr. Co., 89 NY2d 499, 503; Rodriguez v Five Towns Nissan, 69 AD3d at 834; Davis v Cardiovascular Consultants of Long Is., P.C., 65 AD3d 1076, 1077; Petersen v Lysaght, Lysaght & Kramer, P.C., 47 AD3d at 783). Although the court has the discretion to accept law office failure as a justifiable excuse (see CPLR 2005), a claim of law office failure should be supported by a “”detailed and credible”” explanation of the default at issue (see Henry v Kuveke, 9 AD3d 476, 479; see also Gironda v Katzen, 19 AD3d 644, 645), and conclusory and unsubstantiated claims of law office failure are insufficient (see Lugauer v Forest City Ratner Co., 44 AD3d 829, 830; Matter of ELRAC, Inc. v Holder, 31 AD3d 636, 636-637; Matter of Denton v City of Mount Vernon, 30 AD3d 600, 601). In addition, in a medical malpractice action, expert medical opinion evidence is required to demonstrate merit, except as to matters within the ordinary experience and knowledge of laypersons (see Mosberg v Elahi, 80 NY2d 941, 942).

The undetailed and uncorroborated claim of law office failure set forth by the plaintiff’s attorney, and the unsubstantiated claim that he left the country to assist his injured sister, did not amount to a justifiable excuse for the failure to comply with the certification order (see Lugauer v Forest City Ratner Co., 44 AD3d at 830; Matter of ELRAC, Inc. v Holder, 31 AD3d at 636-637) or for the delay of more than six months in moving to vacate the default judgment (see Bowman v Kusnick, 35 AD3d 643, 644; Williams v Pratt Inst., 212 AD2d 692, 692). Moreover, the plaintiff failed to demonstrate the existence of a potentially meritorious cause of action (see Orphan v Pilnik, 15 NY3d 907, 908; Belak-Redl v Bollengier, 74 AD3d 1110, 1111; Behar v Coren, 21 AD3d 1045, 1047). Accordingly, the Supreme Court providently exercised its discretion in denying the plaintiff’s motion, inter alia, in effect, to vacate the judgment dismissing the complaint pursuant to CPLR 3216.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Cheathem v Ostrow       2009-04453         2012 NY Slip Op 07949    “Decided on November 21, 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.

 

2009-04453

(Index No. CV-513/05)

 

 

[*1]Felicia Cheathem, respondent,

 

v

 

Stephen Ostrow, et al., appellants.

 

 

 

 

 

Greher Law Offices, P.C., New Windsor, N.Y. (Warren Greher and

John McHugh of counsel), for appellants.

Bergstein & Ullrich, LLP, Chester, N.Y. (Stephen Bergstein of

counsel), for respondent.

 

 

DECISION & ORDER

In an action, inter alia, to recover damages for sexual harassment, the defendants appeal from a judgment of the Supreme Court, Orange County (McGuirk, J.), dated March 27, 2009, which, upon a jury verdict, is in favor of the plaintiff and against them in the principal sum of $25,000.

ORDERED that the judgment is affirmed, with costs.

CPLR 3117 permits the use of an adverse party’s deposition for any purpose (see CPLR 3117; Feldsberg v Nitschke, 49 NY2d 636, 640). Additionally, CPLR 4515 permits the introduction of a prior inconsistent statement sworn or subscribed by the witness for purposes of impeachment (see CPLR 4515; Feldsberg v Nitschke, 49 NY2d at 644 n 2). However, “”[a] trial court is not without power to ensure the orderly and fair administration of justice merely because a particular item of evidence is technically admissible. Although there exist general rules for the conduct of trials, deviation from these rules may be necessary to fit the circumstances of a particular case”” (Feldsberg v Nitschke, 49 NY2d at 643). “”[T]rial courts retain their discretionary power to control the trial and to avoid unnecessarily protracted or confusing presentation of evidence'”” (Dank v Sears Holding Mgt. Corp., 93 AD3d 627, 628, quoting Feldsberg v Nitschke, 49 NY2d at 643).

Here, the Supreme Court providently exercised its discretion in precluding defense counsel from using the plaintiff’s deposition testimony to impeach a portion of her trial testimony. At trial, the plaintiff testified that her employer, the defendant Stephen Ostrow, required her to play the game “”Simon Says,”” and that during this game, he instructed her to hop on one foot and expose her bare chest to him. Although the plaintiff did not testify about this event during her deposition, the plaintiff was not asked in her deposition whether she testified to every alleged instance of sexual harassment. Under these circumstances, the use of the plaintiff’s deposition testimony to impeach this portion of her trial testimony would have been confusing and unfairly prejudicial, and the Supreme Court properly precluded defense counsel from doing so (see Dank v Sears Holding Mgt. Corp., 93 AD3d at 628). [*2]

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Chichester v Alal-Amin Grocery & Halal Meat      2011-10487         2012 NY Slip Op 07950    “Decided on November 21, 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.

 

2011-10487

(Index No. 23517/06)

 

 

[*1]Ester Chichester, et al., respondents,

 

v

 

Alal-Amin Grocery & Halal Meat, defendant, Ian Rajiu Sahai, et al., appellants. .

 

 

 

 

 

Friedman, Khafif & Sanchez, LLP, Brooklyn, N.Y. (Fabien A.

Robley of counsel), for appellants.

Elliot Ifraimoff (Pollack, Pollack, Issac & De Cicco, New

York, N.Y. [Dmitriy Shulman and

Brian J. Issac], of counsel), for

respondents.

 

 

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendants Ian Rajiu Sahai and Amy N. Sahai appeal from an order of the Supreme Court, Queens County (Lebowitz, J.), entered September 22, 2011, which denied their motion to vacate a judgment of the same court entered July 16, 2010, which, upon an order of the same court dated March 30, 2007, granting the plaintiffs’ unopposed motion for leave to enter judgment against them on the issue of liability upon their default in appearing or answering, and after an inquest, was in favor of the plaintiffs and against them in the principal sum of $1,050,000, and for leave to serve a late answer.

ORDERED that the order entered September 22, 2011, is affirmed, with costs.

The Supreme Court properly denied the appellants’ motion pursuant to CPLR 5015(a)(1) to vacate a default judgment entered against them. The affidavits of the plaintiffs’ process server established, prima facie, that the appellants were properly served with process pursuant to CPLR 308(2) (see Bank of N.Y. v Segui, 68 AD3d 908, 909; Cavalry Portfolio Servs., LLC v Reisman, 55 AD3d 524, 525; Jefferson v Netusil, 44 AD3d 621). Although a defendant’s sworn denial of receipt of a copy of the summons and complaint generally rebuts the presumption of proper service established by the process server’s affidavit and necessitates an evidentiary hearing (see Skyline Agency v Coppotelli, Inc., 117 AD2d 135, 139), no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server’s affidavits (see US Natl. Bank Assn. v Melton, 90 AD3d 742, 743; U.S. Bank, N.A. v Arias, 85 AD3d 1014, 1015; Scarano v Scarano, 63 AD3d 716; Simonds v Grobman, 277 AD2d 369, 370).

In support of the appellants’ motion to vacate their default, the appellant Amy N. Sahai denied, in an affidavit, that she received any mailing concerning this action and, although she admitted that her relatives were present at the address where process was served, she claimed that she did not live at that address and that none of her relatives fit the description in the affidavits of [*2]service. The appellants failed to submit any documentary evidence to support the claim of Amy N. Sahai that she did not reside at the subject premises at the time that she was served, and they failed to submit an affidavit from a relative at that address denying receipt of a copy of the summons and complaint or stating that the appellants did not live there (see Foster v Jordan, 269 AD2d 152, 153). Furthermore, the appellants failed to rebut the evidence submitted by the plaintiffs in opposition to the motion to vacate the judgment, demonstrating that the appellants had represented, in several real estate documents, that the address where process was delivered and mailed was a one-family dwelling in which they resided (cf. Toyota Motor Credit Corp. v Lam, 93 AD3d 713, 714; U.S. Bank, N.A. v Arias, 85 AD3d 1014, 1016). In light of the foregoing, the appellants failed to demonstrate a reasonable excuse for their defaults and, thus, they were not entitled to relief pursuant to CPLR 5015(a)(1).

Similarly, the appellants were not entitled to relief pursuant to CPLR 317. While, under CPLR 317, it was unnecessary for the appellants to offer a reasonable excuse for their defaults (see Eugene Di Lorenzo, Inc. v A C. Dutton Lbr. Co., 67 NY2d 138, 141), they failed to demonstrate that they did not personally receive notice of the commencement of the action in time to defend it (see Wassertheil v Elburg, LLC, 94 AD3d 753, 754; Fleisher v Kaba, 78 AD3d 1118, 1119; Levine v Forgotson’s Cent. Auto & Elec., Inc., 41 AD3d 552).

The appellants’ remaining contentions are not properly before this Court, as they are being raised for the first time on appeal (see Waterman v Weinstein Mem. Chapel, 49 AD3d 717, 718; Pile v Grant, 41 AD3d 810; Evergreen Sys. v Geotech Lizenz, 155 AD2d 584).

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Davis v City of New York               2011-06039         2012 NY Slip Op 07951    “Decided on November 21, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

WILLIAM F. MASTRO, J.P.

RUTH C. BALKIN

SANDRA L. SGROI

JEFFREY A. COHEN, JJ.

 

2011-06039

(Index No. 23822/10)

 

 

[*1]William Davis, respondent

 

v

 

City of New York, appellant.

 

 

 

 

 

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

A. Sonnenshein and Diana Lawless of counsel), for appellant.

Sivin & Miller, LLP, New York, N.Y. (Edward Sivin of

counsel), for respondent.

 

 

DECISION & ORDER

In an action to recover damages for false arrest and imprisonment and malicious prosecution, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Kerrigan, J.), entered May 12, 2011, as granted that branch of the plaintiff’s motion which was for summary judgment on the issue of liability on the cause of action alleging false arrest and imprisonment and denied that branch of its cross motion which was to dismiss the cause of action alleging false arrest and imprisonment for failure to state a cause of action pursuant to CPLR 3211(a)(7).

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 the issue of liability on the cause of action alleging false arrest and imprisonment, 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.

In support of his motion, inter alia, for summary judgment on the issue of liability on the cause of action alleging false arrest and imprisonment, the plaintiff sought to establish, prima facie, that there was no probable cause for his arrest (cf. Broughton v State of New York, 37 NY2d 451, 456, cert denied sub nom. Schanbarger v Kellogg, 423 US 929). He relied entirely on the decision issued by this Court on his appeal from the judgment of conviction in the underlying criminal proceeding (see People v Davis, 69 AD3d 647). Specifically, the plaintiff asserted that this Court had held that his arrest was predicated entirely on illegally seized evidence. The plaintiff’s assertion was a misreading of our decision. Although we reversed the plaintiff’s judgment of conviction and granted suppression of certain physical evidence found in the plaintiff’s knapsack, our holding was not based on a determination that the police lacked probable cause to arrest the plaintiff. Indeed, we did not address, either expressly or impliedly, the legal issue of the basis for the plaintiff’s arrest. Consequently, our factual recitation of the events surrounding the search of the plaintiff’s knapsack could not properly have been relied on for a determination as to whether the police had probable cause to arrest the plaintiff. Inasmuch as the plaintiff, therefore, failed to [*2]establish, prima facie, that the police lacked probable cause to arrest him, he failed to meet his burden of establishing his entitlement to judgment as a matter of law on the issue of liability on that cause of action (see Alvarez v Prospect Hosp., 68 NY2d 320, 324), and that branch of his motion should have been denied without regard to the sufficiency of the defendant’s papers in opposition (see id. at 324).

The Supreme Court properly denied that branch of the defendant’s cross motion which was to dismiss the cause of action alleging false arrest and imprisonment pursuant to CPLR 3211(a)(7). The defendant’s contentions in support of its cross motion were grounded on the same misreading of our decision in the plaintiff’s criminal appeal.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Delijani v Delijani              2010-00074         2012 NY Slip Op 07952    “Decided on November 21, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

RANDALL T. ENG, P.J.

REINALDO E. RIVERA

SHERI S. ROMAN

SANDRA L. SGROI, JJ.

 

2010-00074

(Index No. 4785/99)

 

 

[*1]Morgan Delijani, respondent,

 

v

 

Parham Delijani, appellant. Jan Ira Gellis, P.C., New York, N.Y. (Lee N. Mermelstein of counsel), for appellant.

 

 

 

 

 

Anthony A. Capetola, Williston Park, N.Y. (Robert P. Johnson and

Michele R. Olsen of counsel), for respondent.

 

 

DECISION & ORDER

In a matrimonial action in which the parties were divorced by judgment entered December 4, 2003, the defendant appeals from an order and money judgment (one paper) of the Supreme Court, Nassau County (Maron, J.), entered August 17, 2009, which, in effect, granted that branch of the plaintiff’s unopposed motion which was for an award of interim counsel fees in the sum of $59,000, and is in favor of the plaintiff’s counsel and against him in the principal sum of $59,000.

ORDERED that the order and money judgment is affirmed, with costs.

On appeal, the defendant contends that the Supreme Court improvidently exercised its discretion in denying his attorney’s request for an adjournment in which to appear to oppose the plaintiff’s motion, inter alia, for an award of interim counsel fees in the sum of $59,000, and in granting that branch of the plaintiff’s unopposed motion. Initially, we note that, while CPLR 5511 prohibits an appeal from an order or judgment entered upon the default of the appealing party, the appeal from the order and money judgment entered August 17, 2009, brings up for review those matters which were the subject of contest before the Supreme Court (see Matter of Branch v Cole-Lacy, 96 AD3d 741, 742; Sarlo-Pinzur v Pinzur, 59 AD3d 607, 607-608; Tun v Aw, 10 AD3d 651, 652). Since the adjournment requested by the defendant’s attorney was the subject of dispute in the Supreme Court, the denial of that request may be reviewed on appeal.

The granting of an adjournment for any purpose is a matter resting within the sound discretion of the trial court (see Matter of Steven B., 6 NY3d 888, 889; Matter of Anthony M., 63 NY2d 270, 283; Matter of Branch v Cole-Lacy, 96 AD3d at 742; Matter of O’Leary v Frangomihalos, 89 AD3d 948, 949; Natoli v Natoli, 234 AD2d 591, 592). “”In deciding such motions by a defendant, the court must engage in a balanced consideration of all relevant factors”” (Cabral v Cabral, 35 AD3d 779, 779; see Matter of Sicurella v Embro, 31 AD3d 651; Natoli v Natoli, 234 AD2d at 592; Cuevas v Cuevas, 110 AD2d 873, 877). Upon balancing the relevant factors here, we conclude that the Supreme Court did not improvidently exercise its discretion in denying the request of the defendant’s attorney for an adjournment to appear to oppose the plaintiff’s motion (see Matter of Sicurella v Embro, 31 AD3d 651; Natoli v Natoli, 234 AD2d 591; York v [*2]York, 250 AD2d 841).

ENG, P.J., RIVERA, ROMAN and SGROI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

“East End Labs., Inc. v Altaire Pharms., Inc.”         2010-03884         2012 NY Slip Op 07953    “Decided on November 21, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

RANDALL T. ENG, P.J.

RUTH C. BALKIN

JOHN M. LEVENTHAL

CHERYL E. CHAMBERS, JJ.

 

2010-03884

2011-01011

(Index No. 16556/05)

 

 

[*1]East End Laboratories, Inc., et al., respondents- appellants,

 

v

 

Altaire Pharmaceuticals, Inc., et al., appellants-respondents.

 

 

 

 

 

Doar Rieck Kaley & Mack, New York, N.Y. (John F. Kaley and

David Rivera of counsel), for appellants-respondents.

Gold, Stewart, Benes, LLP, Bellmore, N.Y. (Christopher Benes

and Melissa B. Levine of counsel), for

respondents-appellants.

 

 

DECISION & ORDER

In an action, inter alia, to recover damages for tortious interference with contract, conversion, assault, battery, and unlawful imprisonment, the defendants appeal (1), as limited by their notice of appeal and brief, from so much of an order of the Supreme Court, Suffolk County (Sutherland, Ct. Atty. Ref.), dated March 23, 2010, as granted that branch of the plaintiffs’ motion which was pursuant to CPLR 3126 to strike their counterclaims on the ground, among others, that they willfully disobeyed orders directing disclosure, and (2), as limited by their brief, from stated portions of an order of the same court (Emerson, J.) dated January 11, 2011, which, inter alia, denied, as untimely, their motion, in effect, pursuant to CPLR 3104(d) to vacate so much of the order dated March 23, 2010, as granted that branch of the plaintiffs’ motion which was pursuant to CPLR 3126 to strike their counterclaims, and the plaintiffs cross-appeal from stated portions of the order dated March 23, 2010.

ORDERED that the appeal and the cross appeal from the order dated March 23, 2010, are dismissed; and it is further,

ORDERED that the order dated January 11, 2011, is affirmed insofar as appealed from; and it is further,

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

Since no direct appeal lies from an order of a court attorney referee appointed to supervise disclosure pursuant to CPLR 3104, the appeal from the order dated March 23, 2010, must be dismissed (see Etzion v Etzion, 84 AD3d 1014, 1015; Continental Ins. Co. v Northberry Concrete Corp., 156 AD2d 419). Moreover, since the plaintiffs’ brief fails to set forth any arguments regarding the portions of the order dated March 23, 2010, that were cross-appealed from, we must dismiss the plaintiffs’ cross appeal as abandoned (see Ellner v Schwed, 48 AD3d 739, 740; Matter of Goldweber & Hershkowitz v Digsby, 32 AD3d 853, 854). [*2]

The Supreme Court properly denied, as untimely, the defendants’ motion, in effect, pursuant to CPLR 3104(d) to vacate so much of the order dated March 23, 2010, as granted that branch of the plaintiffs’ motion which was pursuant to CPLR 3126 to strike their counterclaims. Pursuant to CPLR 3104(d), a party may make a motion seeking review of a referee’s order regarding discovery, and such motion “”shall be . . . made in the court in which the action is pending within five days after the order is made”” (see Etzion v Etzion, 84 AD3d 1014, 1015). Here, the defendants made their motion, in effect, pursuant to CPLR 3104(d) on April 29, 2010. Since the defendants did not seek review of the order dated March 23, 2010, within five days after that order was made, as required (see CPLR 3104[d]; CIT Project Fin. v Credit Sussie First Boston LLC, 7 Misc 3d 1002[A], 2005 NY Slip Op 50406[U]; cf. Casa de Meadows Inc. [Cayman Is.] v Zaman, 76 AD3d 917, 923), the Supreme Court properly denied, as untimely, the defendants’ motion, in effect, pursuant to CPLR 3104(d). In any event, considering that the defendants, among other things, repeatedly failed to comply with the plaintiffs’ discovery demands and spoliated evidence needed by the plaintiffs to defend against the defendants’ counterclaims, it was not an improvident exercise of discretion to grant that branch of the plaintiffs’ motion which was pursuant to CPLR 3126 to strike the defendants’ counterclaims (see Howe v Jeremiah, 51 AD3d 975, 975-976; McArthur v New York City Hous. Auth., 48 AD3d 431).

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

“Ginsburg Dev. Cos., LLC v Carbone”       2011-05343         2012 NY Slip Op 07954    “Decided on November 21, 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.

 

2011-05343

(Index No. 17369/08)

 

 

[*1]Ginsburg Development Companies, LLC, respondent,

 

v

 

Donald J. Carbone, etc., et al., appellants (and a third-party action).

 

 

 

 

 

Wilson Elser Moskowitz Edelman & Dicker, LLP, New York,

N.Y. (Thomas A. Leghorn and Cori Rosen of counsel), for

appellants.

Riker, Danzig, Scherer, Hyland & Perretti, LLP, New York,

N.Y. (Jonathan P. Vuotto and

Thomas P. Sheridan of counsel), for

respondent.

 

 

DECISION & ORDER

In an action, inter alia, to recover damages for fraud, the defendants appeal from so much an order of the Supreme Court, Westchester County (Loehr, J.), entered April 12, 2011, as denied their cross motion to disqualify nonparties Jonathan P. Vuotto and Riker, Danzig, Scherer, Hyland & Perretti, LLP, as counsel for the plaintiff in this action.

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

The Supreme Court providently exercised its discretion in denying the defendants’ cross motion to disqualify Jonathan P. Vuotto and his law firm, Riker, Danzig, Scherer, Hyland & Perretti, LLP, as counsel for the plaintiff in this action (see Light v Light, 64 AD3d 633, 635; Hudson Val. Mar., Inc. v Town of Cortlandt, 54 AD3d 999, 1000-1001; see also Magnus v Sklover, 95 AD3d 837, 838).

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Giorgio v Pilla     2011-06878         2012 NY Slip Op 07955    “Decided on November 21, 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.

 

2011-06878

(Index No. 23924/07)

 

 

[*1]Dominick Giorgio, respondent-appellant,

 

v

 

Steven Pilla, et al., appellants-respondents.

 

 

 

 

 

Corrigan & Baker, LLC, White Plains, N.Y. (Gregg S. Baker of

counsel), for appellants-respondents Steven Pilla and Deborah Pilla.

Hogan & Rossi, Brewster, N.Y. (David Simon and Julianne

Culhane of counsel), for appellant-

respondent Bibbo Associates, LLP.

Mark E. Constantine, Irvington, N.Y., for respondent-appellant.

 

 

DECISION & ORDER

In an action, inter alia, to recover damages for negligence and breach of contract, the defendants Steven Pilla and Deborah Pilla appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Liebowitz, J.), entered June 14, 2011, as denied that branch of their motion which was for summary judgment on their counterclaims, the defendant Bibbo Associates, LLP, separately appeals, as limited by its brief, from so much of the same order as denied that branch of its separate motion which was for summary judgment dismissing the complaint insofar as asserted against it, and the plaintiff cross-appeals, as limited by his brief, from so much of the same order as granted that branch of the motion of the defendants Steven Pilla and Deborah Pilla which was for summary judgment dismissing the complaint insofar as asserted against them, and denied that branch of his cross motion which was for summary judgment on the complaint.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion of the defendant Bibbo Associates, LLP, which was for summary judgment dismissing the first cause of action insofar as asserted against it and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

In 2003, the plaintiff purchased an unimproved parcel of real property from Emilio Conciatori, and thereafter retained the defendant Bibbo Associates, LLP (hereinafter Bibbo), inter alia, to prepare the necessary applications to obtain a permit from the Westchester County Department of Health (hereinafter the WCDOH) to construct a well and sewage disposal system on the property. The WCDOH subsequently issued a permit, and the plaintiff commenced construction of a single-family residence. Prior to the completion thereof, the defendants Steven Pilla and Deborah Pilla (hereinafter together the Pillas), who owned an adjacent parcel of property, contacted the WCDOH, claiming that the location of the plaintiff’s proposed well violated the minimum setback requirement from their existing septic system. The WCDOH thereafter revoked the permit, [*2]and the plaintiff then commenced this action. The first and second causes of action allege negligence and breach of contract against Bibbo, arising out of its alleged failure to undertake the necessary investigation to discover the location of the Pillas’ septic system. The complaint also asserts causes of action against the Pillas sounding in negligence, prima facie tort, and nuisance, alleging that they impermissibly enlarged and relocated their septic system without a permit, and deliberately and maliciously waited until after construction of the proposed well was commenced before informing the plaintiff of the location of their septic system. The Pillas counterclaimed for an award of costs and an attorney’s fee, and the imposition of sanctions, alleging that the action was a Strategic Lawsuit Against Public Participation (hereinafter SLAPP suit) arising out of their communication to the WCDOH, and that the action was frivolous. Following the completion of discovery, the parties moved and cross-moved for summary judgment. The Supreme Court granted that branch of the Pillas’ motion which was for summary judgment dismissing the complaint insofar as asserted against them, and otherwise denied the motions and cross motion.

Contrary to the plaintiff’s contention, the Supreme Court properly granted that branch of the Pillas’ motion which was for summary judgment dismissing the complaint insofar as asserted against them. A landowner may be held liable to third persons for the condition of real property where the owner has “”created or negligently permitted to remain on the land a structure or other artificial condition which involves an unreasonable risk of harm to others outside of the land, because of its plan, construction, location, disrepair or otherwise”” (Restatement [Second] of Torts § 364, Comment A; see Fetter v DeCamp, 195 AD2d 771, 772). Here, the Pillas made a prima facie showing of their entitlement to judgment as a matter of law dismissing the causes of action sounding in negligence and nuisance by submitting evidentiary proof that the repairs performed to their septic system prior to the plaintiff’s purchase of his property did not relocate their system closer to the site of the plaintiff’s proposed well, and that no permits were required for the work performed. Accordingly, the Pillas demonstrated, prima facie, that the repairs were performed in lawful compliance with WCDOH rules and regulations, and did not present an unreasonable risk of harm to neighboring property owners. Further, as to the plaintiff’s prima facie tort cause of action, the Pillas demonstrated, prima facie, that they did not act solely based on disinterested malevolence in communicating with the WCDOH (see Smith v Meridian Tech., Inc., 86 AD3d 557, 559). In opposition, the plaintiff failed to raise a triable issue of fact as to whether the Pillas’ septic system presented an unreasonable risk of harm to him, or whether they otherwise breached a duty of care (see Fetter v DeCamp, 195 AD2d at 774). Additionally, the plaintiff failed to raise a triable issue of fact as to whether the Pillas’ communications with the WCDOH were motivated solely by disinterested malevolence. For the same reasons, the plaintiff failed to establish his prima facie entitlement to judgment as a matter of law on the complaint insofar as asserted against the Pillas.

The Pillas likewise established their prima facie entitlement to judgment as a matter of law on their counterclaims against the plaintiff (see Civil Rights Law § 70-a). In opposition, however, the plaintiff tendered proof sufficiently demonstrating that the action has a substantial basis in fact and law (see id.). Accordingly, the Supreme Court properly denied that branch of the Pillas’ motion which was for summary judgment on their counterclaims, which alleged that the main action constituted a prohibited SLAPP suit (see Civil Rights Law § 70-a[1]; 22 NYCRR 130-1.1).

The Supreme Court properly concluded that triable issues of fact existed as to the second cause of action, which was asserted against Bibbo to recover damages for breach of contract. Accordingly, the court properly denied that branch of Bibbo’s motion which was for summary judgment dismissing that cause of action, as well as that branch of the plaintiff’s cross motion which was for summary judgment on that cause of action.

Nevertheless, the Supreme Court should have granted that branch of Bibbo’s motion which was for summary judgment dismissing the first cause of action, which was asserted against it to recover damages for negligence, since the allegations set forth in that cause of action were not independent of the breach of contract cause of action (see Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 389; Hudson Eng’g Assoc. v Kramer, 204 AD2d 277).

The parties’ remaining contentions are without merit.

SKELOS, J.P., FLORIO, LEVENTHAL and HALL, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Gruber v Anastas             2011-02421         2012 NY Slip Op 07956    “Decided on November 21, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

REINALDO E. RIVERA, J.P.

L. PRISCILLA HALL

PLUMMER E. LOTT

JEFFREY A. COHEN, JJ.

 

2011-02421

(Index No. 23053/09)

 

 

[*1]Louis J. Gruber, Jr., et al., respondents,

 

v

 

Ayreen Anastas, et al., appellants, et al., defendant. Goodwin Procter, LLP, New York, N.Y. (Jessica A. Davis, Lauren M. Nowierski, and Kate D. Seib of counsel), for appellants. Frances S. Gruber, Honesdale, Pennsylvania, respondent pro se.

 

 

 

 

 

DECISION & ORDER

In an action, inter alia, to recover possession of a rent-stabilized apartment, the defendants Ayreen Anastas and Rene Gabri appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Kings County (Bayne, J.), entered January 14, 2011, as, after a nonjury trial, is in favor of the plaintiffs and against them on so much of the first cause of action as sought to recover possession of the rent-stabilized apartment and issued a warrant of eviction.

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

“”[A] court, in its discretion, may properly decide to proceed with a trial in the absence of a note of issue and certificate of readiness”” (Petti v Pollifrone, 170 AD2d 494, 495). Here, the Supreme Court did not improvidently exercise its discretion in proceeding with a trial since the defendant tenants, Ayreen Anastas and Rene Gabri (hereinafter the appellants), were not deprived of the opportunity to conduct or complete discovery and failed to demonstrate that they were prejudiced by the court’s decision to proceed.

We also reject the appellants’ contention that the Supreme Court erred by awarding the plaintiff landlords judgment on so much of their first cause of action as sought to recover possession of the subject rent-stabilized apartment on the ground that the appellants overcharged subtenants for the use of the premises in violation of Rent Stabilization Code (9 NYCRR) § 2525.6(b). Although, under Rent Stabilization Code (9 NYCRR) § 2504.1(d)(1), a landlord normally must give the tenant notice of the violation and a specified amount of time to cure the illegal sublet (see also Rent Stabilization Code [9 NYCRR] § 2524.3[a]), under the circumstances of this case, including the fact that the appellants imposed a substantial surcharge, the appellants should not be permitted to cure the lease violation (see Matter of 151-155 Atl. Ave. v Pendry, 308 AD2d 543, 543-544; see also BLF Realty Holding Corp. v Kasher, 299 AD2d 87, 91).

The appellants’ remaining contentions are either without merit or improperly raised for the first time in their reply brief (see Torah v Dell Equity, LLC, 90 AD3d 746, 747; Education Resources Inst., Inc. v Soren, 85 AD3d 848, 850). [*2]

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Igwe v State of New York             2011-08814         2012 NY Slip Op 07957    “Decided on November 21, 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.

 

2011-08814

 

 

[*1]Kalu Igwe, appellant,

 

v

 

State of New York, respondent. (Claim No. 116757)

 

 

 

 

 

Goldberg, Scudieri & Lindenberg, P.C., New York, N.Y. (Robert

H. Goldberg of counsel), for appellant.

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

(Steven C. Wu and Patrick J. Walsh of

counsel; Scott Weingart on the brief), for

respondent.

 

 

DECISION & ORDER

In a claim, inter alia, to recover damages for fraud, the claimant appeals from an order of the Court of Claims (Ferreira, J.), entered August 8, 2011, which granted the defendant’s motion to dismiss the claim pursuant to Court of Claims Act §§ 10 and 11 as untimely.

ORDERED that the order is affirmed, with costs.

Court of Claims Act § 10(4) provides,

“”A claim for breach of contract, express or implied, and any other claim not otherwise provided for by this section, over which jurisdiction has been conferred upon the court of claims, shall be filed and served upon the attorney general within six months after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after such accrual.””

Here, it is undisputed that the claimant’s claim accrued on April 26, 2003. The complaint the claimant filed with the State Attorney General’s Office, Bureau of Consumer Frauds and Protection, on October 27, 2003, did not constitute a notice of intention to file a claim (cf. Klos v State of New York, 19 AD3d 1173, 1174; Ferrugia v State of New York, 237 AD2d 858, 859). Since the claimant did not serve a notice of intention to file a claim within six months after the date of accrual, and did not file and serve a notice of claim upon the Attorney General until May 2009, his claim is time-barred.

The claimant’s remaining contentions are without merit.

Accordingly, the Court of Claims correctly granted the defendant’s motion to dismiss the claim pursuant to Court of Claims Act §§ 10 and 11 as untimely (see Prisco v State of New York, 62 AD3d 978).

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

“Katz v Eastern Constr. Developing & Custom Homes, Inc.”          2011-05702         2012 NY Slip Op 07958    “Decided on November 21, 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.

 

2011-05702

(Index No. 20634/07)

 

 

[*1]Nikolai Katz, et al., plaintiffs-appellants,

 

v

 

Eastern Construction Developing and Custom Homes, Inc., respondent, Franks Plumbing and Heating, defendant- appellant.

 

 

 

 

 

Sheps Law Group, P.C., Melville, N.Y. (Robert C. Sheps and

Aimee Alix of counsel), for plaintiffs-appellants.

Feldman, Rudy, Kirby & Farquharson, P.C., Jericho, N.Y.

(Gerald F. Kirby of counsel), for

defendant-appellant.

Farber, Brocks & Zane LLP, Mineola, N.Y. (Braden H. Farber

and Tracy L. Frankel of counsel), for

respondent.

 

 

DECISION & ORDER

In an action to recover damages for negligence and breach of contract, the plaintiffs appeal from so much of an order of the Supreme Court, Suffolk County (Gazzillo, J.), entered May 26, 2011, as granted that branch of the motion of the defendant Eastern Construction Developing and Custom Homes, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it, and the defendant Franks Plumbing and Heating separately appeals from so much of the order as granted that branch of the motion of the defendant Eastern Construction Developing and Custom Homes, Inc., which was for summary judgment dismissing the cross claim against it.

ORDERED that the order is affirmed, with one bill of costs payable by the appellants appearing separately and filing separate briefs.

The defendant Eastern Construction Developing and Custom Homes, Inc. (hereinafter Eastern), established its prima facie entitlement to judgment as a matter of law dismissing the plaintiffs’ negligence cause of action insofar as asserted against it by submitting evidence that the cause of the subject fire at the plaintiffs’ premises was unrelated to its work, and that it committed no act from which a jury could rationally infer that it negligently caused the fire (see Tower Ins. Co. v Allstate Ins. Co., 31 AD3d 630). In addition, Eastern established its prima facie entitlement to dismissal of the plaintiffs’ cause of action alleging breach of contract insofar as asserted against it by submitting, among other things, proposals for the work, which did not include fire protection services. In opposition, the plaintiffs failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324). The plaintiffs’ remaining contentions are without merit.

Similarly, Eastern established its prima facie entitlement to judgment as a matter of law dismissing the cross claim of the defendant Franks Plumbing and Heating (hereinafter Franks). [*2]In opposition, Franks failed to raise a triable issue of fact.

Accordingly, the Supreme Court properly granted Eastern’s motion for summary judgment dismissing the complaint insofar as asserted against it and the cross claim against it.

SKELOS, J.P., FLORIO, LEVENTHAL and HALL, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Keller v Rashid   2012-00930         2012 NY Slip Op 07959    “Decided on November 21, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

WILLIAM F. MASTRO, J.P.

PETER B. SKELOS

CHERYL E. CHAMBERS

SANDRA L. SGROI, JJ.

 

2012-00930

(Index No. 28270/10)

 

 

[*1]Jennifer Keller, respondent,

 

v

 

MD Rashid, et al., defendants, Mohamed Lakhal, et al., appellants.

 

 

 

 

 

Marjorie E. Bornes, Brooklyn, N.Y., for appellants.

McCarthy & Kelly LLP, New York, N.Y. (William P. Kelly of

counsel), for respondent.

 

 

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants Mohamed Lakhal and Chef Cab Corp. appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Kramer, J.), dated November, 1, 2011, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them, and granted that branch of the plaintiff’s cross motion which was for summary judgment on the issue of liability against them.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion of the defendants Mohamed Lakhal and Chef Cab Corp. for summary judgment dismissing the complaint insofar as asserted against them is granted, and that branch of the plaintiff’s cross motion which was for summary judgment on the issue of liability against those defendants is denied.

The defendant taxi driver Mohamed Lakhal was stopped at a red light on 19th Street at the intersection of 6th Avenue in Manhattan. Lakhal’s taxi was owned by the defendant Chef Cab Corp. (hereinafter Chef). According to Lakhal’s deposition testimony, when the light turned green, he proceeded into the intersection at about 10 to 15 miles per hour. In the middle of the intersection, his taxi was struck on the driver’s side door by another taxi. Lakhal testified at his deposition that the other taxi had run a red light. The plaintiff was a passenger in the other taxi, which was driven by the defendant MD Rashid and owned by the defendant Munor Cab Corp. The plaintiff testified at her deposition that she did not see the color of the traffic light at the time of the accident, and Rashid did not testify at a deposition.

The plaintiff commenced this action against the drivers and owners of both taxis. Lakhal and Chef (hereinafter together the appellants) moved for summary judgment dismissing the complaint insofar as asserted against them on the ground that they were not at fault in the happening of the accident, and 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 accident. The plaintiff opposed the motion and cross-moved for summary judgment on the issue of liability against all the defendants. In an [*2]order dated November 1, 2011, the Supreme Court, inter alia, denied the appellants’ motion and granted that branch of the plaintiff’s cross motion which was for summary judgment on the issue of liability against the appellants.

In support of their motion for summary judgment, the appellants established that Rashid failed to properly observe and yield to the taxi driven by Lakhal, which had the right of way (see Platt v Wolman, 29 AD3d 663). Lakhal was entitled to assume that Rashid would obey the traffic laws requiring him to stop at a red light (see id.; see also Donohue v Chaudhry, 63 AD3d 876, 877). The plaintiff failed to raise a triable issue of fact in opposition (see generally Stukas v Streiter, 83 AD3d 18, 24). Accordingly, the Supreme Court should have granted the appellants’ motion for summary judgment dismissing the complaint insofar as asserted against them, and denied that branch of the plaintiff’s cross motion which was for summary judgment on the issue of liability against the appellants.

In view of the foregoing, we need not address the appellants’ remaining contention.

MASTRO, J.P., SKELOS, CHAMBERS and SGROI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

“Khan v MMCA Lease, Ltd.”        2012-01850         2012 NY Slip Op 07960    “Decided on November 21, 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.

 

2012-01850

(Index No. 5713/11)

 

 

[*1]Shawkat Ali Khan, respondent,

 

v

 

MMCA Lease, Ltd., appellant, et al., defendant.

 

 

 

 

 

London Fischer LLP, New York, N.Y. (Clifford B. Aaron and

Stephanie Kudrle of counsel), for appellant.

 

 

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant MMCA Lease, Ltd., appeals from an order of the Supreme Court, Queens County (Butler, J.), entered January 6, 2012, which denied its motion pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant MMCA Lease, Ltd., pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it is granted.

On December 12, 2010, at the intersection of West 54th Street and 9th Avenue in Manhattan, the plaintiff was operating a motor vehicle when it allegedly was struck by a motor vehicle operated by Sharon Rodriguez and owned by the defendant MMCA Lease, Ltd. (hereinafter MMCA). Following the commencement of this action, MMCA moved pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it on the ground that it is entitled to the protection of the Graves Amendment (49 USC § 30106) and, therefore, could not be held vicariously liable for Rodriguez’s allegedly negligent operation of the leased vehicle based solely on its ownership of the vehicle. The Supreme Court denied the motion.

“”On a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory”” (Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704; see Leon v Martinez, 84 NY2d 83, 87). However, bare legal conclusions are not presumed to be true (see Parola, Gross & Marino, P.C. v Susskind, 43 AD3d 1020, 1021; Mayer v Sanders, 264 AD2d 827, 828). Moreover, where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff 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 (see Guggenheimer v Ginzburg, 43 NY2d 268, 274-275; Fishberger v Voss, 51 AD3d 627, 628). [*2]

Under the Graves Amendment, in order for recovery to be barred, the owner, or an affiliate of the owner, must be engaged in the trade or business of renting or leasing motor vehicles, and the owner, or its affiliate, must not be negligent (see Graham v Dunkley, 50 AD3d 55, 57-58).

Here, MMCA showed that it was the owner of the subject vehicle and was engaged in the business of renting or leasing motor vehicles (see Gluck v Nebgen, 72 AD3d 1023). Additionally, to the extent that the plaintiff’s claim that MMCA negligently maintained the subject vehicle was supported by factual allegations, MMCA established that they were not facts at all through its submissions showing that it did not engage in the repair and maintenance of the vehicles it leases and that it was the sole responsibility of the lessee, Rodriguez, to maintain the subject vehicle (see Guggenheimer v Ginzburg, 43 NY2d at 275; see also Gluck v Nebgen, 72 AD3d at 1023).

Accordingly, the Supreme Court should have granted MMCA’s motion pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Langan v City of New York            2011-04821         2012 NY Slip Op 07961    “Decided on November 21, 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.

 

2011-04821

(Index No. 38049/07)

 

 

[*1]Roseann Langan, et al., respondents,

 

v

 

City of New York, appellant, et al., defendant.

 

 

 

 

 

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

(Kristin M. Helmers, Yair S. Goldstein, and Janet L. Zaleon of

counsel), for appellant.

Michael J. Asta, New York, N.Y. (Lawrence B. Goodman of

counsel), for respondents.

 

 

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendant City of New York appeals from a judgment of the Supreme Court, Kings County (F. Rivera, J.), entered April 1, 2011, which, upon a jury verdict on the issue of liability finding it 75% at fault in the happening of the accident and the plaintiff Roseann Langan 25% at fault, upon a jury verdict on the issue of damages awarding the principal sums of $225,000 to the plaintiff Roseann Langan for past pain and suffering, $262,500 to the plaintiff Roseann Langan for future pain and suffering, and $37,500 to the plaintiff Henry Langan for loss of services, and upon an order of the same court dated September 14, 2010, denying its motion pursuant to CPLR 4404(a) to set aside the verdict and for judgment as a matter of law or, in the alternative, to set aside the verdict as contrary to the weight of the evidence and for a new trial, is in favor of the plaintiffs and against it.

ORDERED that the judgment is affirmed, with costs.

On March 29, 2007, while driving west on 60th Street in Brooklyn, a vehicle operated by the plaintiff Roseann Langan (hereinafter the injured plaintiff) was struck at the intersection of 60th Street and Third Avenue by a vehicle operated by the defendant Elbert Frazier, which had been proceeding south on Third Avenue. The force of the impact redirected the injured plaintiff’s vehicle southbound onto Third Avenue, where it struck a stanchion supporting the Gowanus Highway. As a result of the accident, the injured plaintiff sustained serious physical injuries.

The injured plaintiff, and her husband suing derivatively, commenced this action against the City of New York and Frazier. The plaintiffs alleged, inter alia, that the City negligently failed to properly inspect and discover that the traffic light at the subject intersection was defective. They claimed that the traffic light was improperly turned at a 45-degree angle so that the light appeared to control traffic traveling both westbound on 60th Street and southbound on Third Avenue, proximately causing the collision.

The case proceeded to a jury trial. At the conclusion of the trial, the jury found that the City was 75% at fault in the happening of the accident, that the injured plaintiff was 25% at fault, and that Frazier was not negligent. [*2]

After the trial, the City moved pursuant to CPLR 4404(a) to set aside the verdict and for judgment as a matter of law, or, in the alternative, to set aside the verdict as contrary to the weight of the evidence and for a new trial. The Supreme Court denied the City’s motion, and entered judgment in favor of the plaintiffs and against the City. The City appeals from the judgment.

Contrary to the City’s contention, the verdict was not contrary to the weight of the evidence. “”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 upon any fair interpretation of the evidence”” (Volino v Long Is. R.R. Co., 83 AD3d 693, 693; see Cohen v Hallmark Cards, 45 NY2d 493, 497-498; Nicastro v Park, 113 AD2d 129, 134). “”When a verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view”” (McGovern v Iqbal, 63 AD3d 803, 803; see Palermo v Original California Taqueria, Inc., 72 AD3d 917).

Here, a fair interpretation of the evidence, which included testimony from a nonparty witness who worked at an auto body shop located on Third Avenue between 60th and 61st Streets that the subject traffic light had been turned at an angle two to four months prior to the accident and that he had called 311 to report the condition, supported the jury’s verdict that the City was 75% at fault in the happening of the accident. Accordingly, the Supreme Court properly denied that branch of the City’s motion which was pursuant to CPLR 4404(a) to set aside the jury’s verdict as contrary to the weight of the evidence.

The City’s remaining contentions are without merit.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Lief v Hill              2011-09629         2012 NY Slip Op 07962    “Decided on November 21, 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.

 

2011-09629

(Index No. 16807/09)

 

 

[*1]Madelon Lief, etc., appellant,

 

v

 

Emita Hill, et al., respondents, et al., defendant.

 

 

 

 

 

Kurzman Grant, White Plains, N.Y. (Marc G. Kurzman of counsel),

for appellant.

Bleakley Platt & Schmidt, LLP, White Plains, N.Y. (Robert D.

Meade of counsel), for respondents.

 

 

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, as limited by her notice of appeal and brief, from so much of an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered August 30, 2011, as granted that branch of the motion of the defendants Emita Hill and Frederick Abbabio which was to strike the plaintiff’s demand for a trial by jury.

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

“” [T]he deliberate joinder of claims for legal and equitable relief arising out of the same transaction amounts to a waiver of the right to demand a jury trial'”” (Anesthesia Assoc. of Mount Kisco, LLP v Northern Westchester Hosp. Ctr., 59 AD3d 481, 482, quoting Hebranko v Bioline Labs., 149 AD2d 567, 567-568; cf. CPLR 4102[c]). Here, the Supreme Court properly determined that the plaintiff waived her right to a trial by jury by joining legal and equitable causes of action arising from the same transaction and seeking both legal and equitable relief (see Whipple v Trail Props., 261 AD2d 470; cf. Hebranko v Bioline Labs., 149 AD2d 567, 568). Accordingly, the court properly granted that branch of the motion of the defendants Emita Hill and Frederick Abbabio which was to strike the plaintiff’s demand for a trial by jury.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Ligon v Blake      2011-05538         2012 NY Slip Op 07963    “Decided on November 21, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

MARK C. DILLON, J.P.

RUTH C. BALKIN

LEONARD B. AUSTIN

JEFFREY A. COHEN, JJ.

 

2011-05538

(Index No. 26658/09)

 

 

[*1]Stanley Ligon, appellant,

 

v

 

Troy Blake, et al., respondents.

 

 

 

 

 

Cenceria Edwards, Brooklyn, N.Y., for appellant.

 

 

DECISION & ORDER

In an action, inter alia, to impose a constructive trust upon certain real property, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Jacobson, J.), dated March 31, 2011, as granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

The defendants met their prima facie burden of establishing their entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint (id.).

DILLON, J.P., BALKIN, AUSTIN and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

“Malcolm v Rite Aid of N.Y., Inc.”              2012-00935         2012 NY Slip Op 07964    “Decided on November 21, 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.

 

2012-00935

(Index No. 3287/07)

 

 

[*1]Alvin Malcolm, respondent,

 

v

 

Rite Aid of New York, Inc., et al., appellants.

 

 

 

 

 

Jeffrey Samel & Partners, New York, N.Y. (David Samel of

counsel), for appellants.

 

 

DECISION & ORDER

In an action, inter alia, to recover damages for false arrest and false imprisonment, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Martin, J.), dated November 21, 2011, as, upon reargument, adhered to the original determinations in an order of the same court dated April 7, 2010, denying that branch of their motion which was for summary judgment dismissing the complaint, in effect, denying that branch of their motion which was pursuant to CPLR 3216 to dismiss the complaint, and, in effect, granting that branch of the plaintiff’s cross motion which was, in effect, pursuant to CPLR 3216 to extend the time to serve and file a note of issue.

ORDERED that the order dated November 21, 2011, is affirmed insofar as appealed from, with costs.

The Supreme Court properly adhered to its original determination in an order dated April 7, 2010, denying that branch of the defendants’ motion which was for summary judgment dismissing the complaint. The defendants did not establish their prima facie entitlement to judgment as a matter of law dismissing the causes of action to recover damages for false arrest, false imprisonment, assault, battery, and violation of civil rights based upon the defense afforded to merchants under General Business Law § 218. Since the defendants failed to eliminate triable issues of fact as to whether the defendant Carlyle Byron had reasonable grounds to detain the plaintiff, whether the detention was conducted in a reasonable manner, and whether the detention was for a reasonable duration of time, the defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing those causes of action (see General Business Law § 218; Waynes v BJ’s Wholesale Club, Inc., 97 AD3d 659; Restrepo v Home Depot U.S.A., Inc., 92 AD3d 857; Sada v Kohl’s Dept. Stores, Inc., 79 AD3d 1121). Further, the defendants did not establish that they were entitled to judgment as a matter of law dismissing the causes of action sounding in negligence and negligent hiring, retention, training, and supervision, as General Business Law § 218 does not provide an affirmative defense to these causes of action and, in any event, the defendants failed to meet their prima facie burden with regard to these causes of action (see General Business Law § 218; Sada v Kohl’s Dept. Stores, Inc., 79 AD3d at 1122). Accordingly, that branch of the defendants’ motion which was for summary judgment dismissing the complaint was properly denied, regardless of the sufficiency of the opposing papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324), and, upon reargument, the Supreme Court properly adhered to its determination in the order [*2]dated April 7, 2010, denying that branch of the defendants’ motion.

With respect to the remaining branches of the defendants’ motion, and the plaintiff’s cross motion, “”CPLR 3216 is an extremely forgiving’ statute (Baczkowski v Collins Constr. Co., 89 NY2d 499, 503), which never requires, but merely authorizes, the Supreme Court to dismiss a plaintiff’s action based on the plaintiff’s unreasonable neglect to proceed’ “” (Kadyimov v Mackinnon, 82 AD3d 938, 938, quoting Davis v Goodsell, 6 AD3d 382, 383). CPLR 3216 prohibits the Supreme Court from dismissing a complaint based on failure to prosecute whenever a plaintiff has shown a justifiable excuse for the delay and the existence of a potentially meritorious cause of action (see Gordon v Ratner, 97 AD3d 634, 635). Under the circumstances of this case, the excuses of law office failure, ongoing discovery proceedings, and the existence of a parallel administrative proceeding were properly accepted by the Supreme Court as reasonable. Further, the Supreme Court properly determined that the plaintiff demonstrated a potentially meritorious cause of action (id. at 635; see Lauri v Freeport Union Free School Dist., 78 AD3d 1130). These determinations, combined with the fact that the defendants claimed no prejudice and the lack of evidence of a pattern of persistent neglect and delay in prosecuting the action or of any intent to abandon the action, all support the conclusion that the Supreme Court providently exercised its discretion. Accordingly, the Supreme Court properly adhered to its determinations in the order dated April 7, 2010, in effect, denying that branch of the defendants’ motion which was pursuant to CPLR 3216 to dismiss the complaint and granting that branch of the plaintiff’s cross motion which was, in effect, pursuant to CPLR 3126 to extend the time to serve and file a note of issue.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Martens v County of Suffolk       2012-01563         2012 NY Slip Op 07965    “Decided on November 21, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

RANDALL T. ENG, P.J.

MARK C. DILLON

PLUMMER E. LOTT

JEFFREY A. COHEN, JJ.

 

2012-01563

(Index No. 37097/09)

 

 

[*1]Jennifer Martens, et al., plaintiffs-respondents,

 

v

 

County of Suffolk, appellant, Town of Riverhead, et al., defendants-respondents.

 

 

 

 

 

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

A. Jeffreys of counsel), for appellant.

Certilman Balin Adler & Hyman, LLP, East Meadow, N.Y.

(James A. Rose and Sanjay V. Nair of

counsel), for plaintiffs-respondents.

 

 

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendant County of Suffolk appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Pitts, J.), dated January 5, 2012, as denied, as premature, its cross motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the cross motion of the defendant County of Suffolk for summary judgment dismissing the complaint and all cross claims insofar as asserted against it is granted.

The plaintiff Jennifer Martens (hereinafter the injured plaintiff) allegedly sustained personal injuries when she tripped and fell on an uneven and defective sidewalk in front of the “”Atlantis Marine World Aquarium,”” located at 431 East Main Street, in Riverhead. The injured plaintiff, and her husband suing derivatively, commenced this action against the defendants, alleging that the County of Suffolk, the Town of Riverhead, the Hamlet/Village of Riverhead, and Atlantis Marine World, LLC, each bore responsibility for the alleged accident. After the plaintiffs moved to amend their notice of claim, the County cross-moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against it on the grounds that it neither owned the accident site nor had prior written notice of the alleged defect. In the order appealed from, the Supreme Court, inter alia, denied the County’s cross motion as premature.

The County established its entitlement to judgment as a matter of law by demonstrating, prima facie, that it did not have prior written notice of the defect on the sidewalk that allegedly caused the plaintiff to fall (see Suffolk County Charter § C8-2A; Amabile v City of Buffalo, 93 NY2d 471; Rodriguez v Town of Islip, 89 AD3d 1077, 1077; Regan v Town of N. Hempstead, 66 AD3d 863; Koehler v Incorporated Vil. of Lindenhurst, 42 AD3d 438; Lysohir v County of Suffolk, 10 AD3d 638). In opposition, the plaintiffs did not raise a triable issue of fact. “”To satisfy a prior written notice statute, the notice relied upon by a plaintiff must not be too remote in time or [*2]location””(Massey v City of Cohoes, 35 AD3d 996, 996). Here, the plaintiffs’ submission of a notice of claim filed approximately eight years prior to the accident complained of, which identified a hazardous staircase at 431 East Main Street, Riverhead, was insufficient, as it was too remote in time and location to the alleged defect in the sidewalk (see Arcabascio v City of New York, 91 AD3d 684; Pagano v Town of Smithtown, 74 AD3d 1304, 1305; McCabe v Town of Riverhead, 2 AD3d 416, 417; Jones v Town of Brookhaven, 227 AD2d 530, 530).

Likewise, the County demonstrated, prima facie, that it did not own, operate, manage, or control the area in question (see Monteleone v Incorporated Vil. of Floral Park, 123 AD2d 312, 314). In opposition to this prima facie showing, the plaintiffs did not raise a triable issue of fact.

Furthermore, the County’s motion was not premature, as the plaintiffs failed to demonstrate how discovery may reveal or lead to relevant evidence, or that “”facts essential to opposing the motion were exclusively within”” another party’s “”knowledge and control”” (Espada v City of New York, 74 AD3d 1276, 1277; see CPLR 3212[f]; Norero v 99-105 Third Ave. Realty, LLC, 96 AD3d 727, 728; Haque v Daddazio, 84 AD3d 940). Ownership of the sidewalk is a matter of public record and, thus, does not constitute information in the sole and exclusive possession of the County (see CPLR 3212[f]; Kenworthy v Town of Oyster Bay, 116 AD2d 628, 629).

The plaintiffs’ remaining contentions are without merit.

Accordingly, the Supreme Court should have granted the County’s cross motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

ENG, P.J., DILLON, LOTT and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

“Menardy v Gladstone Props., Inc.”        2011-10179         2012 NY Slip Op 07966    “Decided on November 21, 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.

 

2011-10179

(Index No. 3076/98)

 

 

[*1]Raymonde Menardy, appellant,

 

v

 

Gladstone Properties, Inc., et al., defendants, Richard Tannenbaum, respondent.

 

 

 

 

 

Amos Weinberg, Great Neck, N.Y., for appellant.

 

 

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Spodek, J.), dated August 24, 2011, which denied her motion, in effect, for leave to enter a second default judgment against the defendants pursuant to CPLR 3215 and, sua sponte, amended a prior order of the same court dated November 23, 2009, so as to direct the dismissal of the complaint insofar as asserted against the defendant Richard Tannenbaum.

ORDERED that on the Court’s own motion, the notice of appeal from so much of the order dated August 24, 2011, as, sua sponte, amended the order dated November 23, 2009, so as to direct the dismissal of the complaint insofar as asserted against the defendant Richard Tannenbaum 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 August 24, 2011, is modified, on the law, (1) by deleting the provision thereof, sua sponte, amending the order dated November 23, 2009, so as to direct the dismissal of the complaint insofar as asserted against the defendant Richard Tannebaum and (2), by deleting the provision thereof denying those branches of the motion which were, in effect, for leave to enter a second default judgment pursuant to CPLR 3215 against the defendants Gladstone Properties, Inc., and Columbia Realty Co. and substituting therefor provisions granting those branches of the motion; as so modified, the order dated August 24, 2011, is affirmed, without costs or disbursements.

The plaintiff was injured in 1995 when a kitchen ceiling collapsed onto her. In 1998, the plaintiff commenced an action against the defendants, and in 2007 a default judgment was entered in her favor against all of the defendants. In an order dated November 23, 2009, the Supreme Court granted the defendants’ motion to vacate the default judgment, and scheduled the matter for a preliminary conference. Subsequently, the plaintiff’s counsel and the defendant Richard Tannenbaum appeared in court for a preliminary conference, and stipulated to a discovery schedule. The defendants Gladstone Properties, Inc., and Columbia Realty Co. did not appear. The plaintiff, alleging that the defendants thereafter failed to comply with discovery, and otherwise defaulted, inter alia, in the obligations imposed upon them in a preliminary conference order dated January 13, 2010, thereafter moved, in effect, for leave to enter a second default judgment against the defendants pursuant to CPLR 3215. In an order dated August 24, 2011, the Supreme Court denied the plaintiff’s [*2]motion and, sua sponte, amended the order dated November 23, 2009, so as to direct the dismissal of the complaint insofar as asserted against Tannenbaum. The plaintiff appeals.

“”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; Rienzi v Rienzi, 23 AD3d 450). Here, no such extraordinary circumstances existed so as to warrant the sua sponte dismissal of the complaint insofar as asserted against Tannenbaum. In addition, the Supreme Court’s determination to direct the dismissal of the complaint insofar as asserted against Tannenbaum, based upon improper service of process, was, in effect, an improper reversal of that portion of a prior order dated November 23, 2009, which, upon vacating the defendants’ default, implicitly concluded that service was properly effected upon Tannenbaum since the court directed the case to proceed to a preliminary conference (see McConnell v Santana, 87 AD3d 618). “”[A] trial court has no revisory or appellate jurisdiction, sua sponte, to vacate its own order or judgment”” (Adams v Fellingham, 52 AD3d 443, 444; see Herpe v Herpe, 225 NY 323; Matter of Owens v Stuart, 292 AD2d 677, 678-679; Reisman v Coleman, 226 AD2d 693; Osamwonyi v Grigorian, 220 AD2d 400, 401). Accordingly, it was error for the Supreme Court to amend its prior order so as to direct the dismissal of the complaint insofar as asserted against Tannenbaum after the time to appeal or move pursuant to CPLR 2221 expired.

The Supreme Court also should have granted that branch of the plaintiff’s motion which was, in effect, for leave to enter a second default judgment against the defendants Gladstone Properties, Inc., and Columbia Realty Co. since the record reflects that the plaintiff satisfied the criteria set forth under CPLR 3215. However, the Supreme Court properly denied that branch of the plaintiff’s motion which was, in effect, for leave to enter a second default judgment against Tannenbaum. Although the plaintiff demonstrated “”proof of the facts constituting the claim and the amount due,”” under the particular circumstances of this case, she failed to establish that Tannenbaum was in default of his obligations pursuant to the preliminary conference order (see CPLR 3215[f]).

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

“Mister Money Israel, Ltd. v Leibowitz” 2011-07219         2012 NY Slip Op 07967    “Decided on November 21, 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.

 

2011-07219

(Index No. 11533/10)

 

 

[*1]Mister Money Israel, Ltd., et al., appellants,

 

v

 

Abraham Leibowitz, etc., respondent.

 

 

 

 

 

Law Offices of Marc E. Bengualid, PLLC, New York, N.Y.

(Ariella M. Colman of counsel), for appellants.

Sol Mermelstein, Brooklyn, N.Y. (S. Herman Klarsfeld of

counsel), for respondent.

 

 

DECISION & ORDER

In an action to enforce a foreign judgment, brought by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the plaintiffs appeal from an order of the Supreme Court, Kings County (Bayne, J.), dated June 3, 2011, which denied their motion for summary judgment and, thereupon, directed the dismissal of the action.

ORDERED that the order is modified, on the law, by deleting the provision thereof directing the dismissal of the action, and substituting therefor a provision deeming the moving and answering papers on the plaintiffs’ motion for summary judgment in lieu of complaint to be the complaint and answer, respectively; as so modified, the order is affirmed, without costs or disbursements.

The plaintiffs commenced this action to enforce a foreign judgment by filing a summons with notice of motion for summary judgment in lieu of complaint pursuant to CPLR 3213. The Supreme Court properly denied the plaintiffs’ motion. In opposition to the plaintiffs’ prima facie showing of their entitlement to judgment as a matter of law, the defendant raised a triable issue of fact as to whether the foreign court had personal jurisdiction over him (see CPLR 5304[2]; John Galliano, S.A. v Stallion, Inc., 15 NY3d 75, 80, cert deniedUS, 131 S Ct 288).

However, since there exists a triable issue of fact as to whether the foreign court had personal jurisdiction over the defendant, instead of dismissing the action, the Supreme Court should have deemed the moving and answering papers to the plaintiffs’ motion to be the complaint and answer, respectively (see CPLR 3213; Frankini v Landmark Constr. of Yonkers, Inc., 91 AD3d 593, 595; Lugli v Johnston, 78 AD3d 1133, 1133-1135; Cadle Co. v Ayala, 47 AD3d 919, 920; cf. Schulz v Barrows, 94 NY2d 624, 628-629).

MASTRO, J.P., RIVERA, CHAMBERS and LOTT, JJ., concur. [*2]

ENTER:

Aprilanne Agostino

Clerk of the Court”

Nappy v Nappy 2011-05742         2012 NY Slip Op 07968    “Decided on November 21, 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.

 

2011-05742

2011-05743

(Index No. 30331/03)

 

 

[*1]Clara Nappy, also known as Clara Estrada, respondent,

 

v

 

Nicholas Nappy, appellant.

 

 

 

 

 

John G. Poli III, P.C., Huntington, N.Y., for appellant.

Darrin Berger, Huntington, N.Y., for respondent.

 

 

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the defendant appeals from (1) an order of the Supreme Court, Suffolk County (Spinner, J.), dated April 13, 2011, which denied his motion pursuant to CPLR 4404(a) to set aside a jury verdict in favor of the plaintiff and against him and for judgment as a matter of law or, alternatively, to set aside the jury verdict as contrary to the weight of the evidence and for a new trial, and (2) a judgment of the same court entered May 9, 2011, which, upon the jury verdict, is in favor of the plaintiff and against him in the total sum of $177,297.53.

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.

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 intermediate order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).

The parties entered into a stipulation of settlement dated March 12, 1999, which was incorporated, but not merged, into a judgment of divorce dated June 1, 1999. At some point in time, the defendant executed a document, denominated an “”IOU,”” which read as follows: “”I agree to pay [the plaintiff] $1900.00 per month for a period of 60 months starting August 1999. These monies are to be used to pay the second mortage [sic] on the house and for our son Nicholas to attend college.””

The plaintiff subsequently commenced this action, inter alia, to recover damages for breach of contract based on the defendant’s failure to make payments pursuant to the IOU. A trial was held, and the jury was given a verdict sheet containing only the following question: “”Considering the circumstances under which the IOU was prepared and executed, did the IOU, when taken as a whole, constitute a conditional or unconditional promise to pay?”” The jury unanimously [*2]answered that the IOU constituted an unconditional promise to pay. Thereafter, the Supreme Court denied the defendant’s motion pursuant to CPLR 4404(a) to set aside the jury verdict and for judgment as a matter of law or to set aside the jury verdict as contrary to the weight of the evidence and for a new trial, and entered a judgment in favor of the plaintiff.

As raised in his motion pursuant to CPLR 4404(a), the defendant contends that the parties’ alleged agreement that he pay the plaintiff $1,900 per month for 60 months was unenforceable because the parties never reached a meeting of the minds as to the material terms of the agreement. The defendant also contends that the alleged agreement was unenforceable because the parties failed to satisfy the requirements of Domestic Relations Law § 236(B)(3). However, as the plaintiff contends, consideration of these issues is barred by the doctrine of collateral estoppel. “”The doctrine of collateral estoppel bars relitigation of an issue which has necessarily been decided in a prior action and is determinative of the issues disputed in the present action, provided that there was a full and fair opportunity to contest the decision now alleged to be controlling”” (Capellupo v Nassau Health Care Corp., 97 AD3d 619, 621; see Buechel v Bain, 97 NY2d 295, 303-304, cert denied 535 US 1096). The party invoking the doctrine must show that the identical issue was necessarily decided in the prior action and is determinative in the present action (see Buechel v Bain, 97 NY2d at 304). The burden then shifts to the party to be estopped to demonstrate the absence of a full and fair opportunity to contest the prior determination (id.). Here, the plaintiff met her burden of establishing that these issues were necessarily determined by the Appellate Term on an appeal in a prior action commenced in the Third District Court, Suffolk County, and the defendant failed to demonstrate that he lacked a full and fair opportunity to contest that determination.

The defendant’s remaining contentions are without merit.

ANGIOLILLO, J.P., BALKIN, LOTT and ROMAN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

O’Neill v Town of Dover                2011-07230         2012 NY Slip Op 07969    “Decided on November 21, 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.

 

2011-07230

(Index No. 6551/08)

 

 

[*1]Kelli O’Neill, appellant,

 

v

 

Town of Dover, respondent.

 

 

 

 

 

Finkelstein & Partners, LLP, Newburgh, N.Y. (Andrew L. Spitz

of counsel), for appellant.

McCabe & Mack LLP (Congdon, Flaherty, O’Callaghan, Reid,

Donlon, Travis & Fishlinger,

Uniondale, N.Y. [Gregory A. Cascino], 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, Dutchess County (Brands, J.), dated June 28, 2011, which granted the defendant’s motion for summary judgment dismissing the complaint and denied her cross motion for summary judgment dismissing the defense of immunity pursuant to General Obligations Law § 9-103.

ORDERED that the order is affirmed, with costs.

In support of its motion for summary judgment dismissing the complaint, the defendant established its prima facie entitlement to judgment as a matter of law on the ground of its immunity from liability pursuant to General Obligations Law § 9-103 with evidence that it owned the property upon which the plaintiff’s accident occurred, the plaintiff was engaged in one of the recreational activities specified by the statute, namely, hiking, and the property was suitable for that recreational use (see Albright v Metz, 88 NY2d 656, 662; Fredette v Town of Southampton, 95 AD3d 940, 940-941; Rivera v Glen Oaks Vil. Owners, Inc., 41 AD3d 817, 818-819; Olson v Brunner, 261 AD2d 922, 922-923). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted the defendant’s motion for summary judgment dismissing the complaint, and properly denied the plaintiff’s cross motion for summary judgment dismissing the defense based on General Obligations Law § 9-103.

The parties’ remaining contentions have been rendered academic by our determination.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

“OneWest Bank, FSB v Mgbeahuru”        2011-11859         2012 NY Slip Op 07970    “Decided on November 21, 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.

 

2011-11859

(Index No. 016475/09)

 

 

[*1]OneWest Bank, FSB, etc., respondent,

 

v

 

Fidelis Mgbeahuru, appellant, et al., defendants. Fidelis Mgbeahuru, Uniondale, N.Y., appellant pro se.

 

 

 

 

 

McCabe, Weisberg & Conway, P.C., New Rochelle, N.Y.

(Richard P. O’Brien of counsel), for respondent.

 

 

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Fidelis Mgbeahuru appeals from an order of the Supreme Court, Nassau County (Adams, J.), entered September 20, 2011, which denied his motion pursuant to CPLR 6514 to cancel a notice of pendency.

ORDERED that the order is affirmed, with costs.

The defendant Fidelis Mgbeahuru (hereinafter the defendant) was not entitled to cancellation of a notice of pendency on the property involved in this foreclosure action, as this action had not been “”settled, discontinued or abated”” at the time he made his motion (CPLR 6514[a]; see generally Nastasi v Nastasi, 26 AD3d 32, 36 ). The defendant’s remaining contentions are either not properly before this Court or without merit. Accordingly, the Supreme Court properly denied the defendant’s motion pursuant to CPLR 6514 to cancel the notice of pendency.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Burg    2010-06669         2012 NY Slip Op 07971    “Decided on November 21, 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.

 

2010-06669

 

 

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

 

v

 

William Burg, appellant.

 

 

 

 

 

Thomas N. N. Angell, Poughkeepsie, N.Y. (Steven Levine 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 an order of the County Court, Dutchess County (Hayes, J.), dated June 16, 2010, which, after a hearing (Dolan, J.), designated him a level three sex offender pursuant to Correction Law article 6-C. 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 order is affirmed, without costs or disbursements.

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).

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Velez  2009-06019         2012 NY Slip Op 07972    “Decided on November 21, 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.

 

2009-06019

 

 

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

 

v

 

Santos Velez, appellant.

 

 

 

 

 

Kent V. Moston, Hempstead, N.Y. (Jeremy L. Goldberg and

Argun M. Ulgen of counsel), for appellant.

Kathleen M. Rice, District Attorney, Mineola, N.Y. (Yael V.

Levy and Jason R. Richards of

counsel), for respondent.

 

 

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Nassau County (McCormack, J.), dated June 4, 2009, which, after a hearing to redetermine his sex offender risk level pursuant to the stipulation of settlement in Doe v Pataki (3 F Supp 2d 456), designated him a level two sexually violent sex offender pursuant to Correction Law article 6-C.

ORDERED that the order is modified, on the law, by deleting therefrom the words “”sexually violent””; as so modified, the order is affirmed, without costs or disbursements.

Contrary to the defendant’s contention, at his Sex Offender Registration Act (see Correction Law article 6-C) redetermination hearing held pursuant to the stipulation of settlement reached in Doe v Pataki (3 F Supp 2d 456), the Supreme Court properly assessed 10 points against him under risk factor 12 of the Sex Offender Registration Act Guidelines (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [2006]), as the People established, by clear and convincing evidence, that he did not genuinely accept responsibility for the acts underlying his conviction of sexual abuse in the first degree (see People v Thompson, 95 AD3d 977, 978; People v Fuller, 83 AD3d 1025, 1025-1026; People v Smith, 78 AD3d 917, 918).

Furthermore, under the particular circumstances of this case, the Supreme Court properly assessed 10 points under the “”conduct while confined/supervised”” risk factor, based on evidence of the defendant’s unsatisfactory conduct while in confinement for an offense committed subsequent to his confinement/supervision on his conviction of sexual abuse in the first degree (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 16 [2006]; cf. People v Wilbert, 35 AD3d 1220, 1221). The defendant’s contention relating to the five points assessed under risk factor 9 (number and nature of prior crimes) is unpreserved for appellate review (see People v Teagle, 64 AD3d 549, 550; People v Kelly, 46 AD3d 790, 791) and, in any event, without merit.

The Supreme Court properly determined that the defendant was not entitled to a downward departure from his presumptive risk level assessment (see People v Palmer, 91 AD3d 618; People v Reynolds, 90 AD3d 630, 631). [*2]

However, as the People correctly concede, the Supreme Court apparently committed a clerical error by designating the defendant a sexually violent offender, as the Doe v Pataki stipulation provides that the redetermination court “”shall neither consider nor render a determination on the question of whether the [defendant] shall be designated a . . . sexually violent offender.”” Thus, the order must be modified by deleting therefrom the words “”sexually violent.””

The defendant’s remaining contention is unpreserved for appellate review and, in any event, without merit.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Williams             2011-00189         2012 NY Slip Op 07973    “Decided on November 21, 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.

 

2011-00189

 

 

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

 

v

 

Robert Williams, appellant.

 

 

 

 

 

Lynn W. L. Fahey, New York, N.Y. (Lisa Napoli of counsel),

for appellant.

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

Joblove and Morgan J. Dennehy of

counsel), for respondent.

 

 

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Reichbach, J.), dated December 22, 2010, which, after a hearing, designated him a level one sex 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 further proceedings consistent herewith.

The defendant was convicted in Alabama of two counts of attempted enticement of a child (see Ala. Code § 13A-6-69), a misdemeanor (see Ala. Code § 13A-4-2[d][4]). In connection with the defendant’s relocation to New York, the Board of Examiners of Sex Offenders (hereinafter the Board) determined that the defendant was required to register under the Sex Offender Registration Act (hereinafter SORA), and made a recommendation as to the appropriate risk level (see Correction Law § 168-k[2]). In the context of the court proceeding, under SORA, to determine the defendant’s risk level (see Correction Law § 168-k[2]), the defendant challenged the Board’s determination that he was subject to SORA based upon his out-of-state conviction. The Supreme Court determined that such a challenge was not properly before it, as that contention had to be asserted in a CPLR article 78 proceeding.

While the Supreme Court’s determination, at the time it was made, was supported by case law from this Court (see e.g. People v Teagle, 64 AD3d 549; People v Rendace, 58 AD3d 821), the Court of Appeals has since held that “”[a] determination by the Board of Examiners of Sex Offenders that a person who committed an offense in another state must register in New York is reviewable in a proceeding to determine the offender’s risk level”” (People v Liden, 19 NY3d 271, 273). Accordingly, as both parties request, we remit the matter to the Supreme Court, Kings County, for further proceedings to review the Board’s determination that the defendant was required to register as a sex offender under SORA.

MASTRO, J.P., SKELOS, FLORIO and DICKERSON, JJ., concur. [*2]

ENTER:

Aprilanne Agostino

Clerk of the Court”

“Rabos v R&R Bagels & Bakery, Inc.”        2011-08998         2012 NY Slip Op 07974    “Decided on November 21, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

ANITA R. FLORIO, J.P.

THOMAS A. DICKERSON

SANDRA L. SGROI

ROBERT J. MILLER, JJ.

 

2011-08998

2012-00846

(Index No. 3754/11)

 

 

[*1]Vassilia Rabos, appellant,

 

v

 

R & R Bagels & Bakery, Inc., et al., defendants, David Rakhminov, et al., respondents.

 

 

 

 

 

Razis & Ross, P.C., Astoria, N.Y. (George J. Razis, Callie Razis,

Elena Razis, and Stephen Ross of counsel), for appellant.

Mischel & Horn, P.C., New York, N.Y. (Scott T. Horn and

Naomi M. Taub of counsel), for

respondents David Rakhminov and Larisa

Rakhminov.

Paul Eisenstein, Woodbury, N.Y., for respondents Shirley J.W.

Kotcher and Lawrence T. Choy.

Norman Landres, New York, N.Y., for respondent Samir

Kohan.

 

 

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract and fraud, the plaintiff appeals, as limited by her brief, from (1) so much of an order of the Supreme Court, Queens County (McDonald, J.), dated July 13, 2011, as granted those branches of the motion of the defendants David Rakhminov and Larisa Rakhminov which were pursuant to CPLR 3211(a)(1) and (7) to dismiss the first and second causes of action insofar as asserted against them, and granted the motion of the defendant Samir Kohan pursuant to CPLR 3211(a)(7) to dismiss the fifth cause of action insofar as asserted against him, and (2) so much of an order of the same court dated November 23, 2011, as denied that branch of her motion which was for leave to renew her opposition to those branches of the motion of the defendants David Rakhminov and Larisa Rakhminov which were pursuant to CPLR 3211(a)(1) and (7) to dismiss the first and second causes of action insofar as asserted against them, and the motion of the defendant Samir Kohan pursuant to CPLR 3211(a)(7) to dismiss the fifth cause of action insofar as asserted against him, and those branches of her motion which were pursuant to CPLR 3211(e) for leave to replead the second and fifth causes of action.

ORDERED that the order dated July 13, 2011, is modified, on the law, by deleting the provisions thereof granting those branches of the motion of the defendants David Rakhminov and Larisa Rakhminov which were pursuant to CPLR 3211(a)(1) and (7) to dismiss the first and second causes of action insofar as asserted against them, and substituting therefor provisions denying those branches of the motion of the defendants David Rakhminov and Larisa Rakhminov; as so modified, the order dated July 13, 2011 is affirmed insofar as appealed from; and it is further,

ORDERED that the appeal from so much of the order dated November 23, 2011, as [*2]denied those branches of the plaintiff’s motion which were for leave to renew her opposition to those branches of the motion of the defendants David Rakhminov and Larisa Rakhminov which were pursuant to CPLR 3211(a)(1) and (7) to dismiss the first and second causes of action insofar as asserted against them is dismissed as academic in light of our determination on the appeal from the order dated July 13, 2011; and it is further,

ORDERED that the order dated November 23, 2011, is modified, on the law and in the exercise of discretion, by deleting the provision thereof denying that branch of the plaintiff’s motion which was pursuant to CPLR 3211(e) for leave to replead the second cause of action, and substituting therefor a provision granting that branch of the plaintiff’s motion; as so modified the order dated November 23, 2011, is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff, payable by the defendants David Rakhminov and Larisa Rakhminov, and one bill of costs is awarded to the defendant Samir Kohan, payable by the plaintiff.

The plaintiff commenced this action, inter alia, to recover damages for breach of contract and fraud. The first cause of action alleged breach of contract against, among others, the defendants David Rakhminov and Larisa Rakhminov (hereinafter the Rakhminov defendants). The second cause of action alleged fraud against, among others, the Rakhminov defendants. The fifth cause of action alleged breach of contract against, among others, the defendant Samir Kohan, incorrectly sued herein as Sammy Cohen.

The Rakhminov defendants moved, inter alia, pursuant to CPLR 3211(a)(1) and (7) to dismiss the first and second causes of action insofar as asserted against them, and Kohan separately moved pursuant to CPLR 3211(a)(7) to dismiss the fifth cause of action insofar as asserted against him. In an order dated July 13, 2011, the Supreme Court, among other things, granted those branches of the Rakhminov defendants’ motion which were to dismiss the first and second causes of action insofar as asserted against them, and Kohan’s motion pursuant to CPLR 3211(a)(7) to dismiss the fifth cause of action insofar as asserted against him.

The plaintiff subsequently moved, inter alia, for leave to renew her opposition to those motions, and pursuant to CPLR 3211(e) for leave to replead the second and fifth causes of action. In an order dated November 23, 2011, the Supreme Court denied those branches of the plaintiff’s motion.

A motion to dismiss based on documentary evidence pursuant to CPLR 3211(a)(1) may be appropriately granted “”only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law”” (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; see Norment v Interfaith Ctr. of N.Y., 98 AD3d 955). In order to be considered documentary evidence within the meaning of CPLR 3211(a)(1), the evidence “”must be unambiguous and of undisputed authenticity”” (Fontanetta v John Doe 1, 73 AD3d 78, 86), that is, it must be “”essentially unassailable”” (Suchmacher v Manana Grocery, 73 AD3d 1017, 1017; see Norment v Interfaith Ctr. of N.Y., 98 AD3d 955).

Here, the corporate minutes submitted by the Rakhminov defendants in support of their motion do not constitute “”documentary evidence”” within the meaning of CPLR 3211(a)(1) (see Norment v Interfaith Ctr. of N.Y., 98 AD3d 955; cf. Levine v Behn, 282 NY 120). Moreover, the purported documentary evidence failed to utterly refute the plaintiff’s allegations (see Kappa Dev. Corp. v Queens Coll. Point Holdings, LLC, 95 AD3d 1178, 1179; HSBC Bank, USA v Pugkhem, 88 AD3d 649, 651). Indeed, the record contains evidence which directly contradicts the purported documentary evidence. Accordingly, those branches of the Rakhminov defendants’ motion which were pursuant to CPLR 3211(a)(1) to dismiss the first and second causes of action insofar as asserted against them should have been denied.

“”On a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as [*3]alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory”” (Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704; see Leon v Martinez, 84 NY2d 83, 87). Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff 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 (see Guggenheimer v Ginzburg, 43 NY2d 268, 274-275; Norment v Interfaith Ctr. of N.Y., 98 AD3d 955).

Here, the first cause of action contained sufficient factual allegations to state a cause of action for breach of contract against the Rakhminov defendants. The complaint alleged, among other things, that the plaintiff entered into an agreement with the Rakhminov defendants pursuant to which she would make certain payments to them in return for 50% of the shares of a corporation they founded. The complaint alleged that the plaintiff made the payments and that the Rakhminov defendants failed to give her 50% of the shares of the corporation. Since the allegations in the complaint were sufficient to state a cause of action for breach of contract, and since those allegations were not refuted by the corporate minutes submitted by the Rakhminov defendants such that it can be said that the allegations were not facts at all, the Supreme Court should have denied that branch of the Rakhminov defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the first cause of action insofar as asserted against them (see Guggenheimer v Ginzburg, 43 NY2d at 275; Norment v Interfaith Ctr. of N.Y., 98 AD3d 955).

The Supreme Court also erred when it granted that branch of the Rakhminov defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the second cause of action insofar as asserted against them. “”In an action to recover damages for fraud, the plaintiff must prove a misrepresentation or a material omission of fact which was false and known to be false by [the] defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury”” (Lama Holding Co. v Smith Barney, 88 NY2d 413, 421; see Richmond Shop Smart, Inc. v Kenbar Dev. Ctr., LLC, 32 AD3d 423, 424).

Here, the complaint alleged that the Rakhminov defendants represented to the plaintiff that she was in fact an owner of 50% of the corporation, and that they would personally make investments in the corporation in an amount equal to the sums that the plaintiff had given them for business expenses. These representations were alleged to have been made for the purpose of deceiving the plaintiff into giving even more money to the Rakhminov defendants. The complaint further alleged that the statements were false, were known by the Rakhminov defendants to be false at the time they were made, and were intended to deceive, and that the plaintiff relied upon them to her detriment. Since the allegations in the complaint were sufficient to state a cause of action for fraud (see Scott v Fields, 92 AD3d 666, 668-669; Dana v Shopping Time Corp., 76 AD3d 992, 994; Richmond Shop Smart, Inc. v Kenbar Dev. Ctr., LLC, 32 AD3d at 424), and since those allegations were not refuted by the corporate minutes submitted by the Rakhminov defendants such that it can be said that the allegations were not facts at all, the Supreme Court should have denied that branch of the Rakhminov defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the second cause of action insofar as asserted against them (see Guggenheimer v Ginzburg, 43 NY2d at 275; Norment v Interfaith Ctr. of N.Y., 98 AD3d 955).

However, the Supreme Court properly granted Kohan’s motion pursuant to CPLR 3211(a)(7) to dismiss the fifth cause of action insofar as asserted against him. The allegations in the complaint failed to state a cause of action for breach of contract against Kohan (see Leon v Martinez, 84 NY2d at 87-88).

Turning to those branches of the plaintiff’s motion which were pursuant to CPLR 3211(e) for leave to replead the second and fifth causes of action,””the standard to be applied on a motion for leave to replead pursuant to CPLR 3211(e) is consistent with the standard governing [*4]motions for leave to amend pursuant to CPLR 3025″” (Janssen v Incorporated Vil. of Rockville Ctr., 59 AD3d 15, 27). “”Namely, motions for leave to amend pleadings should be freely granted absent prejudice or surprise to the opposing party, unless the proposed amendment is devoid of merit or palpably insufficient”” (id.).

Here, since the proposed amendment to the second cause of action was neither palpably insufficient nor patently devoid of merit, and there was no evidence that the amendment would prejudice or surprise the Rakhminov defendants, the Supreme Court should have granted that branch of the plaintiff’s motion which was pursuant to CPLR 3211(e) for leave to replead the second cause of action (see Fusca v A & S Constr., LLC, 84 AD3d 1155, 1157-1158). However, since the proposed amendment to the fifth cause of action was palpably insufficient and patently devoid of merit, the Supreme Court properly denied that branch of the plaintiff’s motion which was pursuant to CPLR 3211(e) for leave to replead the fifth cause of action (see Scott v Fields, 85 AD3d 756, 759).

The plaintiff’s remaining contentions either are without merit or have been rendered academic in light of our determination.

FLORIO, J.P., DICKERSON, SGROI and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Ray v County of Nassau 2011-02822         2012 NY Slip Op 07975    “Decided on November 21, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

REINALDO E. RIVERA, J.P.

CHERYL E. CHAMBERS

SHERI S. ROMAN

ROBERT J. MILLER, JJ.

 

2011-02822

(Index No. 6866/10)

 

 

[*1]Isaac Ray, appellant,

 

v

 

County of Nassau, et al., respondents.

 

 

 

 

 

Isaac Ray, Alden, N.Y., appellant pro se.

 

 

DECISION & ORDER

In an action, inter alia, to recover damages for intentional infliction of emotional distress and negligence, the plaintiff appeals from stated portions of an order of the Supreme Court, Nassau County (Parga, J.), dated January 20, 2011, which, inter alia, granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging negligence.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

The Supreme Court properly granted that branch of the defendants’ motion which was to dismiss the cause of action alleging negligence. A plaintiff seeking damages for an injury resulting from a wrongful arrest and detention may not recover, as here, under broad general principles of negligence, but must proceed by way of the traditional remedies of false arrest and imprisonment, which he has done. Those causes of action are not before us on this appeal (see Johnson v Kings County Dist. Attorney’s Off., 308 AD2d 278, 285; Heath v State of New York, 229 AD2d 912, 912-913; Secard v Department of Social Servs. of County of Nassau, 204 AD2d 425, 427; Stalteri v County of Monroe, 107 AD2d 1071, 1071; Boose v Rochester, 71 AD2d 59, 62). To the extent that the complaint contained other allegations of negligence not related to the plaintiff’s arrest and imprisonment, such allegations were insufficient to constitute any other cognizable cause of action against the defendants (see Donald v State of New York, 17 NY3d 389, 395; Mon v City of New York, 78 NY2d 309, 314-315; Santoro v Town of Smithtown, 40 AD3d 736, 738; see also McLean v City of New York, 12 NY3d 194, 199; Euell v Incorporated Vil. of Hempstead, 57 AD3d 837, 838; Dixon v Village of Spring Val., 6 AD3d 489, 490).

The plaintiff’s remaining contentions are without merit.

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

ENTER: [*2]

Aprilanne Agostino

Clerk of the Court”

Romano v Village of Mamaroneck            2011-06897         2012 NY Slip Op 07976    “Decided on November 21, 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.

 

2011-06897

(Index No. 13760/09)

 

 

[*1]Anna Maria Romano, appellant,

 

v

 

Village of Mamaroneck, et al., respondents.

 

 

 

 

 

Keogh, Timko & Moses, LLP, White Plains, N.Y. (Jonathan S.

Moses of counsel), for appellant.

Montfort, Healy, McGuire & Salley, Garden City, N.Y.

(Donald S. Neumann, Jr., of counsel), for

respondent Village of Mamaroneck.

Cascone & Kluepfel, LLP, Garden City, N.Y. (Michael T.

Reagan of counsel), for respondent

ELQ Industries, Inc.

 

 

DECISION & ORDER

In a consolidated action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered May 11, 2011, as granted those branches of the separate motions of the defendants ELQ Industries, Inc., and the Village of Mamaroneck which were for summary judgment dismissing the complaint insofar as asserted against each of them.

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

On December 5, 2006, the plaintiff allegedly tripped and fell over a tire mud flap that was depressed into the roadway of a parking space located on 231 Mamaroneck Avenue, in the Village of Mamaroneck. She commenced this consolidated action against the Village and ELQ Industries, Inc. (hereinafter ELQ). ELQ performed resurfacing work on Mamaroneck Avenue in August 2004, pursuant to a contract with the Village. The Village and ELQ separately moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against each of them, and the Supreme Court granted those branches of the motions.

Generally, a contractual obligation, standing alone, will not give rise to tort liability in favor of a third party (see Espinal v Melville Snow Contrs., 98 NY2d 136, 138). However, one exception to this general rule is where the contracting party, in failing to exercise reasonable care in the performance of his or her duties, launches a force or instrument of harm (id. at 140; Foster v Herbert Slepoy Corp., 76 AD3d 210, 213). Here, ELQ satisfied its prima facie burden of establishing its entitlement to judgment as a matter of law by demonstrating that the plaintiff was not a party to ELQ’s contract with the Village, and that ELQ did not create the allegedly dangerous condition that gave rise to the plaintiff’s accident. The Village also satisfied its prima facie burden of establishing its entitlement to judgment as a matter of law by demonstrating that it did not receive [*2]prior written notice of the condition complained of in the roadway where the plaintiff fell, as required by Village Law § 6-628, and that it did not create the alleged dangerous condition through an affirmative act of negligence (see Cuebas v City of Yonkers, 97 AD3d 779, 780; cf. Braver v Village of Cedarhurst, 94 AD3d 933).

In opposition to these respective prima facie showings, the plaintiff failed to raise a triable issue of fact. The affidavit from the plaintiff’s expert was speculative and conclusory and, therefore, insufficient to raise a triable issue of fact (see Romano v Stanley, 90 NY2d 444, 451-452; Loughlin v Town of N. Hempstead, 84 AD3d 1035; Poelker v Swan Lake Golf Corp., 71 AD3d 857, 858).

Accordingly, the Supreme Court properly granted those branches of the separate motions of ELQ and the Village which were for summary judgment dismissing the complaint insofar as asserted against each of them.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Rosado v Rosado              2011-02494         2012 NY Slip Op 07977    “Decided on November 21, 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.

 

2011-02494

(Index No. 46084/09)

 

 

[*1]Daria Rosado, respondent,

 

v

 

Ruben Rosado, appellant.

 

 

 

 

 

Carlos G. Garcia, Brentwood, N.Y., for appellant.

Victor F. Villacara, Patchogue, N.Y., for respondent.

 

 

DECISION & ORDER

In an action for a divorce and ancillary relief, the defendant appeals from an order of the Supreme Court, Suffolk County (MacKenzie, J.), dated February 10, 2011, which granted the plaintiff’s motion for an award of an attorney’s fee to the extent of awarding her the sum of $10,000 to be paid by the defendant.

ORDERED that the order is reversed, on the law, with costs, and the plaintiff’s motion for an award of an attorney’s fee is denied in its entirety.

“”The court rules imposing certain requirements upon attorneys who represent clients in domestic relations matters (see 22 NYCRR part 1400) were designed to address abuses in the practice of matrimonial law and to protect the public”” (Hovanec v Hovanec, 79 AD3d 816, 817; see Behrins & Behrins v Sammarco, 305 AD2d 346, 347). The failure to substantially comply with those rules will preclude an attorney’s recovery of unpaid legal fees (see Hovanec v Hovanoc, 79 AD3d at 817; see also Behrins & Behrins v Sammarco, 305 AD2d at 347).

Here, the evidence demonstrates that the plaintiff’s counsel failed to substantially comply with the matrimonial rules regarding periodic billing statements (see 22 NYCRR 1400.3[9]). Since the plaintiff’s counsel was thereby precluded from seeking unpaid fees from the plaintiff (see Hovanec v Hovanec, 79 AD3d at 817; see also Behrins & Behrins v Sammarco, 305 AD2d at 347), the plaintiff’s spouse may not be required to pay such fees (see Wagman v Wagman, 8 AD3d 263; Mulcahy v Mulcahy, 285 AD2d 587).

In light of our determination, we need not reach the parties’ remaining contentions.

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

ENTER: [*2]

Aprilanne Agostino

Clerk of the Court”

Saghizadeh v Castlepoint Ins. Co.              2011-11377         2012 NY Slip Op 07978    “Decided on November 21, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

ANITA R. FLORIO, J.P.

THOMAS A. DICKERSON

SANDRA L. SGROI

ROBERT J. MILLER, JJ.

 

2011-11377

(Index No. 25041/09)

 

 

[*1]Payem Saghizadeh, respondent,

 

v

 

Castlepoint Insurance Company, et al., defendants, Joseph F. Coluccio, appellant.

 

 

 

 

 

Wilson Elser Moskowitz Edelman & Dicker, LLP, White Plains,

N.Y. (Nancy Quinn Koba and Sheryl T. Parker of counsel), for

appellant.

Aboulafia Law Firm, LLC, New York, N.Y. (Matthew S.

Aboulafia and Jack Glanzberg of counsel),

for respondent.

 

 

DECISION & ORDER

In an action to recover damages for negligence and breach of a contract to procure insurance, the defendant Joseph F. Coluccio appeals from an order of the Supreme Court, Kings County (Solomon, J.), dated October 24, 2011, which denied his motion for leave to renew his prior cross motion for summary judgment dismissing the complaint insofar as asserted against him, which had been denied in an order of the same court dated February 3, 2011.

ORDERED that the order dated October 24, 2011, is affirmed, with costs.

A motion for leave to renew shall be based upon new facts not offered on the prior motion that would change the prior determination and shall contain reasonable justification for the failure to present such facts on the prior motion (see CPLR 2221[e][2], [3]). Here, the appellant, Joseph F. Coluccio, failed to meet the requirements of CPLR 2221(e) with his submission of, inter alia, the plaintiff’s deposition testimony. Accordingly, the Supreme Court properly denied the appellant’s motion for leave to renew his prior cross motion for summary judgment dismissing the complaint insofar as asserted against him.

The appellant’s remaining contentions are not properly before this Court.

FLORIO, J.P., DICKERSON, SGROI and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Samela v Post Rd. Entertainment Corp.  2012-00975         2012 NY Slip Op 07979    “Decided on November 21, 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.

 

2012-00975

(Index No. 26292/08)

 

 

[*1]Alicia A. Samela, etc., respondent,

 

v

 

Post Road Entertainment Corp., et al., appellants.

 

 

 

 

 

Havkins Rosenfeld Ritzert & Varriale, LLP, White Plains, N.Y.

(Steven H. Rosenfeld and Carmen A. Nicolaou of counsel), for

appellants.

Clark, Gagliardi & Miller, P.C., White Plains, N.Y. (Henry G.

Miller, Lawrence T. D’Aloise, Jr., and

Angela Morcone Giannini of counsel),

for respondent.

 

 

DECISION & ORDER

In an action pursuant to General Obligations Law §§ 11-100 and 11-101, inter alia, to recover damages for loss of support, the defendants appeal from an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered January 24, 2012, which denied their motion for summary judgment dismissing the complaint in its entirety or, in the alternative, for summary judgment dismissing so much of the complaint as seeks to recover damages for loss of future support and services and for exemplary damages.

ORDERED that the order is affirmed, with costs.

Over the course of several hours on the evening of August 6, 2007, and the early morning of August 7, the plaintiff’s 19-year-old son (hereinafter the decedent) consumed alcohol served to him at a bar owned by the defendants. While driving home from the bar in the early morning hours of August 7, 2007, the decedent was injured in an automobile accident, and later died of his injuries. The plaintiff commenced this action against the defendants, alleging violations of General Obligations Law §§ 11-100 and 11-101.

The defendants moved for summary judgment dismissing the complaint in its entirety or, in the alternative, dismissing so much of the complaint as seeks to recover damages for loss of future support and for exemplary damages. The defendants argued that the plaintiff could not establish her claim of damages in the form of actual damages and present and future support from the decedent, and could not establish a claim for exemplary damages. The Supreme Court denied the defendants’ motion.

General Obligations Law § 11-100 provides for recovery of damages for injury caused by the intoxication of a person under the age of 21. General Obligations Law § 11-101(1) provides for a cause of action to recover actual and exemplary damages to any person injured “”in person, property, means of support or otherwise”” by the unlawful sale of alcohol to an intoxicated person, whether resulting in his death or not. Both statutes (hereinafter together the Dram Shop Act), provide that parents may commence an action for damages thereunder (General Obligations Law §§ [*2]11-100[4]; 11-101[4]).

In assessing a claim for loss of support under the Dram Shop Act, the jury can consider the support the decedent provided to the plaintiffs before his or her death, and evidence of the support the plaintiffs could reasonably have expected but for his or her death (see Valicenti v Valenze, 68 NY2d 826; Sullivan v Mulinos of Westchester, Inc., 73 AD3d 1018). A parent cannot recover actual damages for loss of support under the Dram Shop Act absent a showing that a child had a legal duty to support his parents or had undertaken an obligation to do so (see McArdle v 123 Jackpot, Inc., 51 AD3d 743; McNeill v Rugby Joe’s, Inc., 272 AD2d 384).

In support of their motion for summary judgment, the defendants submitted the plaintiff’s deposition testimony, in which she testified, inter alia, that the decedent’s father paid the balance of his college tuition not covered by a scholarship and that the plaintiff claimed the decedent as a dependent on her state tax returns for the three years preceding his death, thus indicating that she supported him. While the decedent gave the plaintiff cash for household expenses, the plaintiff could not provide an amount, or state that these contributions were made with any regularity. Based on this proferred testimony, the defendants met their initial prima facie burden by demonstrating that the plaintiff could not substantiate her claim to recover for loss of support (see McArdle v 123 Jackpot, Inc., 51 AD3d 743; McNeill v Rugby Joe’s, 272 AD2d 384).

However, the Supreme Court properly concluded that, in opposition, the plaintiff raised triable issues of fact regarding her claims for actual damages, and for loss of current and future support from the decedent. The plaintiff also testified at her deposition that the decedent, her only child whom she had raised as a single mother, had been employed part-time throughout high school and during college, and contributed to household expenses during that time. She further testified that the decedent had promised to support her in the future and upon retirement, in recognition of her efforts as a single mother. She also offered proof that she had actual expenses connected with his death, including the cost of the headstone and flowers. Accordingly, the plaintiff raised a triable issue of fact as to the decedent’s current and future support and actual damages (see Valicenti v Valenze, 68 NY2d 826; Raynor v C.G.C. Grocery Corp., 159 AD2d 463; Ray v Galloway’s Cafe, 221 AD2d 612).

The defendants’ contention that the Supreme Court erred in denying that branch of their motion which was for summary judgment dismissing the plaintiff’s claim for exemplary damages is without merit. General Obligations Law § 11-101(1) expressly provides for the right to recover exemplary damages. This has been held to require proof that the defendants’ acts are wanton and reckless and demonstrate conscious indifference and disregard of the effect upon the health, safety, and rights of others (see General Obligations Law § 11-101[1]; McCauley v Carmel Lanes, 178 AD2d 835). The defendants offered proof that they had policies about checking identification and not overserving alcohol to intoxicated individuals, thereby meeting their prima facie burden in moving for summary judgment dismissing the exemplary damages claim (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). However, in opposition, the plaintiff submitted the transcript of the deposition testimony of witnesses to demonstrate that the defendants were not checking identification, and that the decedent was showing multiple signs of intoxication, including glassy eyes, slurred speech, difficulty standing or walking, and boisterous behavior. Accordingly the plaintiff raised a triable issue of fact on the issue of exemplary damages (see McCauley v Carmel Lanes, 178 AD2d 835).

The defendants’ remaining contentions are without merit.

DILLON, J.P., AUSTIN, SGROI and COHEN, JJ., concur.

ENTER: [*3]

Aprilanne Agostino

Clerk of the Court”

“Sehgal v http://www.nyairportsbus.com, Inc.”              2011-08371         2012 NY Slip Op 07980    “Decided on November 21, 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.

 

2011-08371

(Index No. 26872/10)

 

 

[*1]Anil Sehgal, et al., appellants,

 

v

 

http://www.nyairportsbus.com, Inc., et al., respondents.

 

 

 

 

 

Daniel P. Buttafuoco & Associates, PLLC, Woodbury, N.Y. (Ellen

Buchholz of counsel), for appellants.

Law Office of Jason Tenenbaum, P.C., Garden City, N.Y., for

respondents.

 

 

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Lane, J.), dated August 10, 2011, which denied, as premature, their motion for summary judgment on the issue of liability, with leave to renew after the completion of discovery.

ORDERED that the order is reversed, on the law, with costs, and the plaintiffs’ motion for summary judgment on the issue of liability is granted.

This action arose as a result of a motor vehicle collision on August 7, 2010, at the intersection of Fifth Avenue and West 57th Street in Manhattan. The plaintiffs averred that they were traveling at a rate of five miles per hour in an eastbound lane of West 57th Street, when, as they were preparing to stop at a red light, their vehicle was struck from behind by the defendants’ vehicle. The defendants admitted, in their answer, that their vehicle struck the plaintiffs’ vehicle. Before discovery was conducted, the plaintiffs moved for summary judgment on the issue of liability, and they submitted, inter alia, an affidavit from each plaintiff as to the facts surrounding the collision. In opposition, the defendants submitted only an attorney affirmation, in which they asserted, among other things, that the motion was premature. The Supreme Court denied the motion as premature, with leave to renew after the completion of discovery, and the plaintiffs appeal.

“” A driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle'”” (Napolitano v Galletta, 85 AD3d 881, 882, quoting Nsiah-Ababio v Hunter, 78 AD3d 672, 672; see Vehicle and Traffic Law § 1129[a]). Accordingly, “” [a]s a general rule, a rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the rearmost vehicle, imposing a duty of explanation on that operator to excuse the collision either through a mechanical failure, a sudden stop of the vehicle ahead, an unavoidable skidding on a wet pavement, or any other reasonable cause'”” (Abbott v Picture Cars E., Inc., 78 AD3d 869, 869, quoting DeLouise v S.K.I. Wholesale Beer Corp., 75 AD3d 489, 490; see [*2]Tutrani v County of Suffolk, 64 AD3d 53, 59).

Here, the plaintiffs’ affidavits established their prima facie entitlement to judgment as a matter of law (see Hanakis v DeCarlo, 98 AD3d 1082, 1084; Napolitano v Galletta, 85 AD3d at 882). In opposition, the defendants failed to raise a triable issue of fact (see Hanakis v DeCarlo, 98 AD3d at 1084; Perez v Brux Cab Corp., 251 AD2d 157, 159). They likewise failed to demonstrate that the motion was premature. A litigant seeking to avoid summary judgment on the ground that discovery has not been conducted must provide an evidentiary basis demonstrating that discovery may lead to relevant evidence or that the facts essential to opposing the motion are in the movant’s exclusive knowledge and control (see Medina v Rodriguez, 92 AD3d 850, 851; Hill v Ackall, 71 AD3d 829, 830). The defendants made no such showing. Accordingly, the Supreme Court should have granted the plaintiffs’ motion for summary judgment on the issue of liability.

In light of our determination that the plaintiffs’ affidavits were sufficient to meet their prima facie burden, we need not address the defendants’ remaining contention.

ANGIOLILLO, J.P., BALKIN, LOTT and ROMAN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Selmani v City of New York          2012-04020         2012 NY Slip Op 07981    “Decided on November 21, 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.

 

2012-04020

(Index No. 500001/11)

 

 

[*1]Samir Selmani, et al., respondents,

 

v

 

City of New York, et al., defendants, Michael Reilly, etc., appellant.

 

 

 

 

 

Thomas M. Bona, P.C., White Plains, N.Y. (James C. Miller of

counsel), for appellant.

Tacopina & Arnold (Antin, Ehrlich & Epstein, LLP, New

York, N.Y. [Jeffrey S. Antin and Emily

Mann], of counsel), for respondents.

 

 

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendant Michael Reilly, individually, appeals from so much of an order of the Supreme Court, Kings County (Ash, J.), dated November 30, 2011, as denied his motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him, individually, for lack of personal jurisdiction and granted the plaintiffs’ cross motion pursuant to CPLR 306-b for leave to extend the time to serve him with copies of the summons and complaint.

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

The appellant correctly contends that the plaintiffs failed to establish that he was served at his “”actual place of business”” pursuant to CPLR 308(2). A person’s “”actual place of business”” must be where the person is physically present with regularity, and that person must be shown to regularly transact business at that location (see Katz v Emmett, 226 AD2d 588, 589; Bridgehampton Natl Bank v Watermill Hgts. Assoc., 157 Misc 2d 246, 250; Anon Realty Assoc. v Simmons Stanley, 153 Misc 2d 954, 957; DiGiuseppe v DiGiuseppe, 70 Misc 2d 188, 189). Here, there was no showing that the appellant was physically present with regularity or regularly transacted business at the headquarters of the New York City Fire Department in Brooklyn where process was served (see Matter of Hennessey v DiCarlo, 21 AD3d 505, 506; Jiminez v City of New York, 5 AD3d 182, 183; Williams v City of New York, 2010 NY Slip Op 30022[U] [Sup Ct NY County]). Accordingly, the attempted service of the summons and complaint pursuant to CPLR 308(2) was defective as a matter of law (see Munoz v Reyes, 40 AD3d 1059; Rios v Zorrilla, 8 AD3d 463).

The Supreme Court, however, providently exercised its discretion in granting the plaintiffs’ cross motion pursuant to CPLR 306-b for leave to extend the time to serve the appellant with copies of the summons and complaint in the interest of justice (see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 105-106). Here, while the action was timely commenced, the statute of limitations had expired when the plaintiffs cross-moved for relief, the timely service of process was [*2]subsequently found to have been defective, and the appellant had actual notice of the action within 120 days of commencement of the action (see Rosenzweig v 600 N. St., LLC, 35 AD3d 705; Chiaro v D’Angelo, 7 AD3d 746; Beauge v New York City Tr. Auth., 282 AD2d 416). Furthermore, the plaintiffs demonstrated a potentially meritorious cause of action, and there was no prejudice to the appellant attributable to the delay in service (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105-106; Rosenzweig v 600 N. St., LLC, 35 AD3d at 706).

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

“Solar Line, Universal Great Bhd., Inc. v Prado”  2010-05673         2012 NY Slip Op 07982    “Decided on November 21, 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

SANDRA L. SGROI, JJ.

 

2010-05673

2010-11296

(Index No. 1548/06)

 

 

[*1]Solar Line, Universal Great Brotherhood, Inc., respondent,

 

v

 

Valdemar Prado, et al., defendants, Accredited Home Lenders, Inc., appellant.

 

 

 

 

 

Fidelity National Law Group, New York, N.Y.(Anthony F. Prisco

of counsel), for appellant.

 

 

DECISION & ORDER

In an action, inter alia, for a judgment declaring that a deed and a mortgage are void, the defendant Accredited Home Lenders, Inc., appeals, as limited by its brief, from (1) so much of an order of the Supreme Court, Kings County (Knipel, J.), dated April 20, 2010, as granted that branch of the plaintiff’s motion which was, in effect, for summary judgment declaring that the deed is void, and (2) so much of an order of the same court dated October 18, 2010, as denied that branch of its motion which was for leave to reargue its opposition to that branch of the plaintiff’s motion and, in effect, denied that branch of its motion which was, in effect, for summary judgment declaring that its mortgage is not void.

ORDERED that the order dated April 20, 2010, is affirmed insofar as appealed from, without costs or disbursements; and it is further,

ORDERED that the appeal from so much of the order dated October 18, 2010, as denied that branch of the appellant’s motion which was for leave to reargue is dismissed, without costs or disbursements, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order dated October 18, 2010, is affirmed insofar as reviewed,

without costs or disbursements.

The defendant Accredited Home Lenders, Inc. (hereinafter AHL), contends that the Supreme Court erred in granting that branch of the plaintiff’s motion which was, in effect, for summary judgment declaring that a deed executed by the defendant Valdemar Prado conveying to himself certain real property owned by the plaintiff, a not-for-profit corporation, is void. The plaintiff established that the deed is void on the ground that Prado did not obtain court approval for the transfer and, thus, the transfer violated Not-For-Profit Corporation Law §§ 510 and 511, which require Supreme Court approval for the disposition of all or substantially all of the assets of a not-for-profit corporation. Contrary to AHL’s contention, the plaintiff showed that it is a duly registered not-for-profit corporation and that the transferred property constitutes all or substantially all of the plaintiff’s assets. In opposition, no triable issues of fact were raised. [*2]

AHL further contends that the Supreme Court erred in determining that its mortgage, which was based on the void deed, is also void. This contention is without merit. “”If documents purportedly conveying a property interest are void, they convey nothing, and a subsequent bona fide purchaser or bona fide encumbrancer for value receives nothing”” (First Natl. Bank of Nev. v Williams, 74 AD3d 740, 742, citing Marden v Dorthy, 160 NY 39, 48; see GMAC Mtge. Corp. v Chan, 56 AD3d 521, 522; Yin Wu v Wu, 288 AD2d 104, 105; Kraker v Roll, 100 AD2d 424, 430-431; see also Ameriquest Mtge. Co. v Gaffney, 41 AD3d 750, 751 [“”one consequence of a void deed would be that (a subsequent transferee) cannot claim the protected status of bona fide purchaser because nothing would have been conveyed to it””]). AHL contends that it was a subsequent good faith encumbrancer for value and, thus, protected under Real Property Law § 266. However, a bona fide encumbrancer is only protected when the challenged conveyance is voidable, not when it is void (see Anderson v Blood, 152 NY 285; Yin Wu v Wu, 288 AD2d at 105; Kraker v Roll, 100 AD2d 424). Here, the Supreme Court determined that the deed is void. Thus, the interests of subsequent bona fide purchasers or encumbrancers for value are not protected under Real Property Law § 266.

AHL also contends that the Supreme Court erred in determining that the deed is void, inasmuch as the deed is capable of ratification. In this regard, AHL correctly points out that Religious Corporations Law § 12 provides an exception to the statutory requirement of obtaining leave of the court by permitting the court to confirm a conveyance after the sale has been made and the conveyance executed and delivered (see Religious Corporations Law § 12[9]; Church of God of Prospect Plaza v Fourth Church of Christ, Scientist of Brooklyn, 54 NY2d 742; Matter of Yancey [New Chapel Baptist Church], 307 NY 858). However, that statute does not apply here since the plaintiff is not a religious corporation (see Cuomo v Daniels, 25 Misc 3d 1226[A], 2009 NY Slip Op 52304[U] [2009]; see also Rose Ocko Found. v Lebovits, 259 AD2d 685, 688).

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Thompson v Horwitz      2012-04050         2012 NY Slip Op 07983    “Decided on November 21, 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.

 

2012-04050

(Index No. 35836/07)

 

 

[*1]Marjorie Thompson, respondent,

 

v

 

Martin Horwitz, defendant, MFA Construction, Inc., appellant.

 

 

 

 

 

McLaughlin & Stern, LLP, New York, N.Y. (Jon Paul Robbins

of counsel), for appellant.

Larry Anthony Welch, New York, N.Y. (Choya Washington of

counsel), for respondent.

 

 

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the defendant MFA Construction, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Pfau, J.), entered January 9, 2012, as denied that branch of the motion of the defendants MFA Construction, Inc., and Martin Horwitz which was for summary judgment dismissing the complaint insofar as asserted against it as time-barred, and granted that branch of the plaintiff’s cross motion which was for summary judgment on the issue of liability insofar as asserted against it.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the plaintiff’s cross motion which was for summary judgment on the issue of liability insofar as asserted against the defendant MFA Construction, Inc., and substituting therefor a provision denying that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff commenced this action against the defendant MFA Construction, Inc. (hereinafter MFA), and its president, the defendant Martin Horwitz, alleging that the defendants breached an oral agreement pursuant to which the plaintiff was authorized to perform certain marketing services on behalf of the defendants. The plaintiff alleged, inter alia, that the defendants failed to pay her an agreed-upon fee for her services. The Supreme Court denied that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against MFA as time-barred, and granted that branch of the plaintiff’s cross motion which was for summary judgment on the issue of liability insofar as asserted against MFA.

The Supreme Court properly denied that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against MFA as time-barred. “”Where, as here, the claim is for payment of a sum of money allegedly owed pursuant to a contract, the cause of action accrues when the plaintiff possesses a legal right to demand payment'”” (Swift v New York Med. Coll., 25 AD3d 686, 687, quoting Matter of Prote Contr. Co. v Board of Educ. of [*2]City of N.Y., 198 AD2d 418, 420; see Minskoff Grant Realty & Mgt. Corp. v 211 Mgr. Corp., 71 AD3d 843, 845). Contrary to MFA’s contention, the defendants failed to show when the plaintiff’s legal right to demand payment arose. Therefore, the defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against MFA as time-barred (see Minskoff Grant Realty & Mgt. Corp. v 211 Mgr. Corp., 71 AD3d at 845; Kuo v Wall St. Mtge. Bankers, Ltd., 65 AD3d 1089, 1090). The defendants’ failure to establish their prima facie entitlement to judgment as a matter of law on this issue required the denial of that branch of the motion, regardless of the sufficiency of the plaintiff’s opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

The Supreme Court erred, however, in granting that branch of the plaintiff’s cross motion which was for summary judgment on the issue of liability insofar as asserted against MFA. In opposition to the plaintiff’s prima facie showing of entitlement to judgment as a matter of law, the defendants raised a triable issue of fact as to the terms of the parties’ oral agreement, and as to what fee, if any, the plaintiff is entitled to under the agreement (see John Treiber Agency v Spartan Concrete Corp., 268 AD2d 506).

ANGIOLILLO, J.P., BALKIN, LOTT and ROMAN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Tidwell v Villaman            2012-01974         2012 NY Slip Op 07984    “Decided on November 21, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

WILLIAM F. MASTRO, J.P.

PETER B. SKELOS

CHERYL E. CHAMBERS

SANDRA L. SGROI, JJ.

 

2012-01974

(Index No. 26593/09)

 

 

[*1]Eric Tidwell, respondent,

 

v

 

Jonathan Villaman, et al., defendants, Serge A. Zaytounalian, et al., appellants.

 

 

 

 

 

Gannon, Rosenfarb, Balletti & Drossman, New York, N.Y. (John

H. Shin of counsel), for appellants.

 

 

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants Serge A. Zaytounalian, G.E. Auto Repair Enterprises, Inc., and L & B Auto Repair II Corp., appeal from so much of an order of the Supreme Court, Kings County (Jacobson, J.), dated December 13, 2011, as denied that branch of their motion which was to compel the plaintiff to submit to X-ray testing of his right femur in connection with a physical examination.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendants Serge A. Zaytounalian, G.E. Auto Repair Enterprises, Inc., and L & B Auto Repair II Corp., which was to compel the plaintiff to submit to X-ray testing of his right femur in connection with a physical examination is granted.

Where, as here, a plaintiff has put his or her physical condition in issue and displays symptoms that simultaneously are serious, complex, and perplexing, he or she may be compelled to undergo additional objective testing procedures that are safe, painless, and noninvasive (see Bobka v Mann, 308 AD2d 497, 498; Thomas v Mather Mem. Hosp., 162 AD2d 521; Lapera v Shafron, 159 AD2d 614, 614-615), including X-ray testing (see Louis v Cohen, 221 AD2d 509; Healy v Deepdale Gen. Hosp., 145 AD2d 413; Captain v Kobak, 95 AD2d 766; Castrillon v City of New York, 91 AD2d 986). In opposition to the appellants’ showing that X-ray testing would assist them in ascertaining the nature and extent of the injuries claimed, the plaintiff failed to establish that X-ray testing of his right femur would be dangerous or harmful (see Healy v Deepdale Gen. Hosp., 145 AD2d 413; Captain v Kobak, 95 AD2d 766; Castrillon v City of New York, 91 AD2d 986). Accordingly, that branch of the appellants’ motion which was to compel the plaintiff to submit to X-ray testing of his right femur, in connection with a physical examination by their examining physician, should have been granted.

MASTRO, J.P., SKELOS, CHAMBERS and SGROI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

US Bank N.A. v Mgbeahuru         2011-08873         2012 NY Slip Op 07985    “Decided on November 21, 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.

 

2011-08873

(Index No. 12830/09)

 

 

[*1]US Bank National Association, etc., respondent,

 

v

 

Fidelis Mgbeahuru, appellant, et al., defendant. Fidelis Mgbeahuru, Uniondale, N.Y., appellant pro se.

 

 

 

 

 

Hogan Lovells US LLP, New York, N.Y. (Chava Brandriss,

David Dunn, and Brian S. McGrath of counsel), for respondent.

 

 

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Fidelis Mgbeahuru appeals from an order of the Supreme Court, Nassau County (Adams, J.), entered August 2, 2011, which denied his motion for leave to reargue his prior motion, inter alia, pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction, which had been determined in a prior order of the same court entered May 13, 2011.

ORDERED that the appeal is dismissed, with costs.

The appeal from the order must be dismissed, because no appeal lies from an order denying leave to reargue (see Das v Sun Wah Rest., 99 AD3d 752; Blackwell v Mikevin Mgt. III, LLC, 88 AD3d 836).

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

“Vaccarino v Mad Den, Inc.”        2010-11078         2012 NY Slip Op 07986    “Decided on November 21, 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.

 

2010-11078

(Index No. 20559/08)

 

 

[*1]John A. Vaccarino, et al., appellants,

 

v

 

Mad Den, Inc., doing business as Café Strega, et al., respondents.

 

 

 

 

 

Costantino Fragale, Eastchester, N.Y., for appellants.

 

 

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal from a judgment of the Supreme Court, Westchester County (Scheinkman, J.), entered September 20, 2010, which, upon a jury verdict, and an order of the same court entered August 30, 2010, among other things, denying the branch of their motion pursuant to CPLR 4404(a) which was to set aside the verdict as contrary to the weight of the evidence and for a new trial, is in favor of the defendants and against them dismissing the complaint and on the defendants’ counterclaims and against them in the principal sum of $216,875.

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

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, 746; Nicastro v Park, 113 AD2d 129, 134). 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 (see Cohen v Hallmark Cards, 45 NY2d 493, 499; Fowler v Jamaica Bus, 62 AD3d 943). It is for the trier of fact to make determinations as to the credibility of witnesses, and great deference is accorded to the factfinders in this regard, as they had the opportunity to see and hear the witnesses (see Alatzas v National R.R. Passenger Corp., 67 AD3d 832; Bertelle v New York City Tr. Auth., 19 AD3d 343). In this case, the jury verdict is supported by a fair interpretation of the evidence (see Palermo v Original California Taqueria, Inc., 72 AD3d 917; Exarhouleas v Green 317 Madison, LLC, 46 AD3d 854; Rahman v Smith, 40 AD3d 613). Accordingly, the Supreme Court properly denied that branch of the appellants’ motion pursuant to CPLR 4404(a) which was to set aside the verdict as contrary to the weight of the evidence and for a new trial.

The Supreme Court’s charge, as a whole, adequately conveyed the proper legal principles to the jury (see Nestorowich v Ricotta, 97 NY2d 393, 400-401; Winderman v Brooklyn/McDonald Ave. Shoprite Assoc., Inc., 85 AD3d 1018; Delong v County of Chautauqua, 71 AD3d 1580).

The appellants’ remaining contentions are without merit.

ANGIOLILLO, J.P., BALKIN, LOTT and ROMAN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Vasquez v New York City Health & Hosps. Corp. 2011-10410         2012 NY Slip Op 07987    “Decided on November 21, 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.

 

2011-10410

(Index No. 25283/00)

 

 

[*1]Luz Vasquez, appellant,

 

v

 

New York City Health and Hospitals Corp., et al., respondents, et al., defendant.

 

 

 

 

 

Breadbar, Garfield, New York, N.Y. (Susan R. Nudelman and

Martin Garfield of counsel), for appellant.

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

(Kristin M. Helmers and Norman

Corenthal of counsel), for respondents.

 

 

DECISION & ORDER

In a consolidated action, inter alia, to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Queens County (O’Donoghue, J.), dated December 23, 2010, which denied her motion to restore the action to the trial calendar and, in effect, to sever all causes of action and cross claims based upon CPLR article 16 asserted by or against the defendant St. John’s Queens Medical Center and Catholic Medical Center of Brooklyn and Queens, Inc.

ORDERED that the order is reversed, on the law, with costs, and the plaintiff’s motion to restore the action to the trial calendar and, in effect, to sever all causes of action and cross claims based upon CPLR article 16 asserted by or against the defendant St. John’s Queens Medical Center and Catholic Medical Center of Brooklyn and Queens, Inc., is granted.

On or about July 23, 2010, the plaintiff moved to restore this consolidated action, inter alia, to recover damages for medical malpractice to the trial calendar. The plaintiff also moved, in effect, to sever all causes of action and cross-claims based upon CPLR article 16 asserted by or against the defendant St. John’s Queens Medical Center and Catholic Medical Center of Brooklyn and Queens, Inc. (hereinafter St. John’s). In support of that branch of her motion which was to restore the action to the trial calendar, the plaintiff asserted that on September 2, 2009, the Supreme Court “”dismissed”” the action after she did not appear for a court conference. The plaintiff asserted, among other things, that she had not been informed of the September 2, 2009, conference date.

In opposition to the plaintiff’s motion, the defendants New York City Health and Hospitals Corp., City of New York, and Elmhurst Hospital Center (hereinafter collectively the Elmhurst defendants) asserted, inter alia, that the action had been marked off the calendar on December 7, 2004. Therefore, the Elmhurst defendants contended, the action was properly dismissed for failure to prosecute. In addition, the Elmhurst defendants argued that the action should not be restored to the trial calendar because the plaintiff could not show a reasonable excuse for the delay, a meritorious cause of action, and a lack of prejudice to them. The Supreme Court denied the [*2]plaintiff’s motion, and the plaintiff appeals.

CPLR 3404 provides that when a case is “”marked off’ or struck from the calendar or unanswered on a clerk’s calendar call, and not restored within one year thereafter,”” that case “”shall be deemed abandoned and shall be dismissed without costs for neglect to prosecute.”” Although the Elmhurst defendants assert that the action was marked off the calendar on December 7, 2004, and that the action was properly dismissed on September 2, 2009, for failure to prosecute, there is no indication in the record that the action was ever marked off the calendar. Furthermore, if the action was indeed marked off the calendar on December 7, 2004, the Elmhurst defendants have not indicated how the action could have been “”dismissed”” more than four years later on September 2, 2009.

In support of her motion, the plaintiff demonstrated that she did not have notice of the September 2, 2009, court conference (see Pavlou v Associates Food Stores, Inc., 96 AD3d 919, 919). Without notice of the conference, the plaintiff’s default was a nullity, as was the remedy imposed by the Supreme Court as a consequence (see CPLR 5015[a][4]; Pavlou v Associates Food Stores, Inc., 96 AD3d at 919-920; Bonik v Tarrabocchia, 78 AD3d 630, 632; Tragni v Tragni, 21 AD3d 1084, 1085-1086; Pelaez v Westchester Med. Ctr., 15 AD3d 375, 376). In this situation, vacatur of the default was required as a matter of law and due process, and no showing of a potentially meritorious cause of action was required (see Pavlou v Associates Food Stores, Inc., 96 AD3d at 920; Bonik v Tarrabocchia, 78 AD3d at 632; cf. Stancati v Weber, 17 AD3d 447).

In addition, the Supreme Court should have granted that branch of the plaintiff’s motion which was, in effect, to sever to all causes of action and cross claims based upon CPLR article 16 asserted by or against St. John’s (see CPLR 603). In this regard, St. John’s had previously commenced Chapter 11 bankruptcy proceedings, resulting in an automatic stay pursuant to 11 USC § 362(a) of the continuation of any action or proceeding against it. However, the automatic stay provisions of the federal bankruptcy code did not extend to the non-bankrupt Elmhurst defendants (see Rosenbaum v Dane & Murphy, 189 AD2d 760, 761). Since the bankruptcy stay did not apply to the Elmhurst defendants, “”the prejudice to the plaintiff in being required to await the conclusion of the bankruptcy proceeding before obtaining any remedy outweighs any potential inconvenience to the [remaining] defendants”” (Moy v St. Vincent’s Hosp. & Med. Ctr. of N.Y., 92 AD3d 651, 652).

Lastly, while the parties assert that the action was “”dismissed”” on September 2, 2009, when the plaintiff did not appear for a court conference, there is no written order in the record demonstrating that the Supreme Court directed the dismissal of the action, and, therefore, there is no documentation in the record showing the basis for any such dismissal. Prior to directing the dismissal of any matter for any reason, the court should enter a written order stating the basis for the dismissal (see Bais Yoel Ohel Feige v Congregation Yetev Lev D’Satmar of Kiryas Joel, 28 AD3d 594, 595; Solomon v Ramlall, 18 AD3d 461; Robinson v Soutar, 12 AD3d 432; Baez v Mohamed, 10 AD3d 623, 624; Veramallay v Paim, 5 AD3d 673, 674).

SKELOS, J.P., LEVENTHAL, CHAMBERS and LOTT, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Vigo v 501 Second St. Holding Corp.         2009-03687         2012 NY Slip Op 07988    “Decided on November 21, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

MARK C. DILLON, J.P.

ANITA R. FLORIO

LEONARD B. AUSTIN

SHERI S. ROMAN, JJ.

 

2009-03687

(Index No. 38083/06)

 

 

[*1]Norma Vigo, plaintiff-respondent,

 

v

 

501 Second Street Holding Corp., appellant, Gihon, LLC, defendant-respondent, et al., defendants (and a third-party action).

 

 

 

 

 

Rachel Nash, New York, N.Y., for appellant.

Herrick, Feinstein LLP, New York, N.Y. (Darlene Fairman of

counsel), for plaintiff-respondent.

Goldman & Greenbaum, P.C., New York, N.Y. (Martin W.

Goldman and Anthony Prisco of

counsel), for defendant-respondent.

 

 

DECISION & ORDER

In an action to foreclose a mortgage, the defendant 501 Second Street Holding Corp. appeals from an order of the Supreme Court, Kings County (Knipel, J.), dated March 2, 2009, which denied its motion for recusal.

ORDERED that the order is affirmed, with costs.

“”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”” (Matter of O’Donnell v Goldenberg, 68 AD3d 1000, 1000; see People v Moreno, 70 NY2d 403, 405-406; Matter of Imre v Johnson, 54 AD3d 427). Here, the appellant failed to set forth any proof of bias or prejudice in support of its motion for recusal (see Gihon, LLC v 501 Second St., LLC, 77 AD3d 709; Daulat v Helms Bros., Inc., 57 AD3d 938; Matter of Alizia McK., 25 AD3d 429).

The appellant’s remaining contentions are either not properly before this Court or without merit.

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

ENTER: [*2]

Aprilanne Agostino

Clerk of the Court”

Vigo v 501 Second St. Holding Corp.         2010-08360         2012 NY Slip Op 07989    “Decided on November 21, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

MARK C. DILLON, J.P.

ANITA R. FLORIO

LEONARD B. AUSTIN

SHERI S. ROMAN, JJ.

 

2010-08360

(Index No. 38083/06)

 

 

[*1]Norma Vigo, respondent,

 

v

 

501 Second Street Holding Corp., appellant, et al., defendants (and a third-party action).

 

 

 

 

 

Rachel H. Nash, New York, N.Y., for appellant.

Victoria Kennedy, New York, N.Y., for respondent.

 

 

DECISION & ORDER

In an action to foreclose a mortgage, the defendant 501 Second Street Holding Corp. appeals from an order of the Supreme Court, Kings County (Knipel, J.), dated July 30, 2010, which, upon a decision of the same court dated June 29, 2010, denied its motion for leave to reargue its motion pursuant to CPLR 3211 to dismiss the complaint insofar as asserted against it and the defendant 501 Second Street, LLC, which had been denied in an order of the same court dated October 2, 2009, granted the plaintiff’s cross motion for leave to enter a default judgment against the defendants 501 Second Street Holding Corp. and 501 Second Street, LLC, and directed that, upon the conclusion of the action against the remaining defendants, a referee shall be appointed to compute the amount due to the plaintiff for the principal, interest, and late charges upon, and any money advanced pursuant to any provision of, the mortgage and note with respect to the subject premises.

ORDERED that the appeal from so much of the order dated July 30, 2010, as denied the motion of the defendant 501 Second Street Holding Corp. for leave to reargue its motion pursuant to CPLR 3211 to dismiss the complaint insofar as asserted against it and the defendant 501 Second Street, LLC, is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the appeal from so much of the order dated July 30, 2010, as granted that branch of the plaintiff’s cross motion which was for leave to enter a default judgment against the defendant 501 Second Street, LLC, is dismissed, as the appellant is not aggrieved by that portion of the order; and it is further,

ORDERED that the order dated July 30, 2010, is affirmed insofar as reviewed; and it is further,

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

The Supreme Court correctly granted that branch of the plaintiff’s cross motion which [*2]was for leave to enter a default judgment against the appellant, as the appellant failed to timely serve and file an answer to the amended complaint, and failed “”to demonstrate a reasonable excuse for its default and a potentially meritorious defense to the action”” (Atlantic Cas. Ins. Co. v RJNJ Servs., Inc., 89 AD3d 649, 651; see Maspeth Fed. Sav. & Loan Assn. v McGown, 77 AD3d 889, 890; Lipp v Port Auth. of N.Y. & N.J., 34 AD3d 649, 649).

The appellant contends that by moving for leave to reargue its prior motion to dismiss the amended complaint pursuant to CPLR 3211, its time to serve and file an answer to the amended complaint was extended, pursuant to CPLR 3211(f), until 10 days after service of notice of entry of the order determining the reargument motion. This contention is incorrect. Only a motion to dismiss an action or a defense, in accordance with CPLR 3211(a) or (b), serves to so extend the time to serve and file an answer. A motion for leave to reargue pursuant to CPLR 2221 does not (cf. Storman v Storman, 90 AD3d 895; 333 Cherry LLC v Northern Resorts, Inc., 66 AD3d 1176, 1177; Haughton v F.W.D. Corp., 193 AD2d 781).

The appellant’s remaining contentions are without merit.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Vigo v 501 Second St. Holding Corp.         2010-11651         2012 NY Slip Op 07990    “Decided on November 21, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

MARK C. DILLON, J.P.

ANITA R. FLORIO

LEONARD B. AUSTIN

SHERI S. ROMAN, JJ.

 

2010-11651

(Index No. 38083/06)

 

 

[*1]Norma Vigo, respondent,

 

v

 

501 Second Street Holding Corp., appellant, et al., defendants (and a third-party action).

 

 

 

 

 

Rachel H. Nash, New York, N.Y., for appellant.

Victoria Kennedy, New York, N.Y., for respondent.

 

 

DECISION & ORDER

In an action to foreclosure a mortgage, the defendant 501 Second Street Holding Corp. appeals from an order of the Supreme Court, Kings County (Knipel, J.), dated October 22, 2010, which (a) denied its motion, denominated as one for leave to renew and reargue, but which was, in actuality, one for leave to reargue its motion pursuant to CPLR 3211 to dismiss the complaint insofar as asserted against it and the defendant 501 Second Street, LLC, which had been denied in an order of the same court dated October 2, 2009, and for leave to reargue its opposition to the plaintiff’s cross motion for leave to enter a default judgment against it and the defendant 501 Second Street, LLC, which had been granted in an order of the same court dated July 30, 2010, and (b) imposed sanctions, pursuant to 22 NYCRR 130-1.1, in the sums of $1,000 and $500 against the attorney for the defendants 501 Second Street Holding Corp. and 501 Second Street, LLC, payable to the attorney for the plaintiff and to the Lawyer’s Fund for Client Protection, respectively.

ORDERED that the appeal is dismissed, with costs.

We agree with the Supreme Court that the appellant’s motion, denominated as one for leave to renew and reargue, was, in actuality, one for leave to reargue its prior motion pursuant to CPLR 3211 to dismiss the complaint insofar as asserted against it and the defendant 501 Second Street, LLC, and for leave to reargue its opposition to the plaintiff’s cross motion for leave to enter a default judgment against it and the defendant 501 Second Street, LLC. As an order denying a motion for leave to reargue is not appealable, the appeal from so much of the order as denied the motion, which was, in actuality, a motion for leave to reargue, must be dismissed (see CPLR 2221[d][2]; [e][2]; Blackwell v Mikevin Mgt. III, LLC, 88 AD3d 836, 838).

The appeal from so much of the order as imposed sanctions upon the appellant’s attorney also must be dismissed, as the appellant is not aggrieved by that portion of the order (see CPLR 5511; Scopelliti v Town of New Castle, 92 NY2d 944, 945; Zarecki & Assoc., LLC v Ross, 50 AD3d 679, 680; cf. Matter of Tagliaferri v Weiler, 1 NY3d 605, 606-607).

DILLON, J.P., FLORIO, AUSTIN and ROMAN, JJ., concur. [*2]

ENTER:

Aprilanne Agostino

Clerk of the Court”

“Wilcox v Pinewood Apt. Assoc., Inc.”    2011-08241         2012 NY Slip Op 07991    “Decided on November 21, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

ANITA R. FLORIO, J.P.

THOMAS A. DICKERSON

SANDRA L. SGROI

ROBERT J. MILLER, JJ.

 

2011-08241

(Index No. 23566/10; File No. 10081150)

 

 

[*1]Stephanie Wilcox, respondent,

 

v

 

Pinewood Apt. Assoc., Inc., appellant. (Matter No. 1)

 

 

 

In the Matter of Pinewood Apt. Assoc., Inc., appellant,

 

v

 

Stephanie Wilcox, respondent. (Matter No. 2)

 

 

 

 

 

Lehrman, Lehrman & Guterman, LLP, White Plains, N.Y. (Mark

A. Guterman of counsel), for appellant.

Judith B. Studebaker, White Plains, N.Y., for respondent.

 

 

DECISION & ORDER

In an action to recover rent overcharges, and a related summary eviction proceeding which was removed from the Justice Court of the Town of Greenburgh to the Supreme Court to be jointly tried with the action, Pinewood Apt. Assoc., Inc., appeals from an order and judgment (one paper) of the Supreme Court, Westchester County (Lefkowitz, J.), dated July 20, 2011, which, upon a decision of the same court dated April 11, 2011, in effect, granted the motion of Stephanie Wilcox for summary judgment on the complaint in the action, denied its cross motion for summary judgment dismissing the complaint in the action, in effect, granted its petition in the proceeding only to the extent of awarding it the sum of $9,930.87 for nonpayment of rent, and is in favor of Stephanie Wilcox and against it in the principal sum of $43,608.

ORDERED that the order and judgment is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County, for a new determination of the motion and cross motion to be made following the prompt resubmission of the overcharge complaint to, and determination of that complaint by, the New York State Division of Housing and Community Renewal.

The Supreme Court improperly disregarded the two-year limitations period for commencement of an action against a landlord to recover damages for an overcharge in violation of an order prescribing the maximum rent with respect to the rent-controlled housing accommodations for which such rent is received (see McKinney’s Uncons Laws of NY § 8591[5]). It is undisputed that the landlord, Pinewood Apt. Assoc., Inc. (hereinafter Pinewood), violated the June 9, 2003, order of the New York State Division of Housing and Community Renewal (hereinafter the DHCR). Moreover, that order, which remained in effect during the relevant two-year period preceding the commencement of the action to recover rent overcharges, should be taken into consideration in determining the amount that Stephanie Wilcox, the tenant, was overcharged (see Matter of Cintron v Calogero, 15 NY3d 347). However, Wilcox may not recover any overcharges which accrued more than two years prior to the commencement of the action.

While this Court has jurisdiction to determine the issues of the actual amount of the [*2]overpayment, whether it was willful, and whether treble damages are warranted (see McKinney’s Uncons Laws of NY § 8591[2]), those issues would be more appropriately determined by the DHCR pursuant to the doctrine of primary jurisdiction, “”which represents an effort to co-ordinate the relationship between courts and administrative agencies,’ [and] generally enjoins courts having concurrent jurisdiction to refrain from adjudicating disputes within an administrative agency’s authority, particularly where the agency’s specialized experience and technical expertise is involved”” (Sohn v Calderon, 78 NY2d 755, 768, quoting Capital Tel. Co. v Pattersonville Tel. Co., 56 NY2d 11, 22). While concurrent jurisdiction exists, where there is an administrative agency which has the necessary expertise to dispose of an issue, in the exercise of discretion, resort to a judicial tribunal should be withheld pending resolution of the administrative proceeding (see Wong v Gouverneur Gardens Hous. Corp., 308 AD2d 301).

Wilcox originally filed her overcharge complaint with the DHCR, but subsequently withdrew it and commenced the rent overcharge action instead. As it is evident from this record that the remaining issues to be decided in this action involve factual evaluations which must be made based almost entirely upon the interpretation of DHCR orders pertaining to the premises, and since the DHCR is best suited to interpret its own orders, we reverse the order and judgment and remit the matter to the Supreme Court, Westchester County, for a new determination of the motion and cross motion following the prompt resubmission by Wilcox of the overcharge complaint to the DHCR, and a determination thereof by the DHCR (see Olsen v Stellar W. 110, LLC, 96 AD3d 440; 150 Greenway Terrace, LLC v Gole, 37 AD3d 792; Nasaw v Jemrock Realty Co., 225 AD2d 385).

The remaining contention of Pinewood is without merit.

FLORIO, J.P., DICKERSON, SGROI and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Wolff v Glick       2010-08162         2012 NY Slip Op 07992    “Decided on November 21, 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.

 

2010-08162

(Index No. 3705/09)

 

 

[*1]Thomas Wolff, appellant,

 

v

 

Julie E. Glick, etc., et al., respondents.

 

 

 

 

 

Carl F. Lodes, Carmel, N.Y., for appellant.

Julie E. Glick and Janine Prete, Patterson, N.Y., respondents

pro se (one brief filed).

 

 

DECISION & ORDER

In an action, inter alia, to impose a constructive trust upon a business, the plaintiff appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Putnam County (Nicolai, J.), dated September 15, 2010, as, upon a decision of the same court dated July 26, 2010, made after a nonjury trial, is in favor of the defendants and against him dismissing the complaint.

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

“”In reviewing a determination made after a nonjury trial, the power of this Court is as broad as that of the trial court, and we may render a judgment we find warranted by the facts, bearing in mind that in a close case, the trial judge had the advantage of seeing the witnesses”” (Rowe v Kingston, 94 AD3d 852, 853; see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499). “”In order to obtain the remedy of a constructive trust, a plaintiff generally is required to demonstrate four factors: (1) a fiduciary or confidential relationship between the parties, (2) a promise, (3) a transfer of some asset in reliance upon the promise, and (4) unjust enrichment flowing from the breach of the promise”” (Mei Yun Chen v Mei Wan Kao, 97 AD3d 730, 730; see Sharp v Kosmalski, 40 NY2d 119, 121). Applying these principles, we discern no basis to disturb the Supreme Court’s determination. Accordingly, the Supreme Court properly dismissed the plaintiff’s cause of action to impose a constructive trust.

The plaintiff’s remaining contentions, made in connection with the remaining causes of action, are without merit.

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

ENTER:

Aprilanne Agostino [*2]

Clerk of the Court”

Woodford v Woodford  2011-08754         2012 NY Slip Op 07993    “Decided on November 21, 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.

 

2011-08754

2012-03216

(Index No. 9288/11)

 

 

[*1]Deirdre Woodford, respondent,

 

v

 

Paul Woodford, appellant.

 

 

 

 

 

Doniger & Engstrand, LLP, Northport, N.Y. (D. Daniel Engstrand,

Jr., of counsel), for appellant.

 

 

DECISION & ORDER

In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief, from (1) so much of an order of the Supreme Court, Suffolk County (Quinn, J.), dated July 15, 2011, as granted that branch of the plaintiff’s motion which was for pendente lite relief to the extent of directing him to pay the plaintiff both temporary maintenance and 100% of certain carrying charges on the marital residence, and an interim counsel fee, and (2) so much of an order of the same court dated February 3, 2012, as denied that branch of his motion which was, in effect, to vacate so much of the order dated July 15, 2011, as directed him to pay the plaintiff an interim counsel fee, and granted that branch of his motion which was to modify certain provisions of that order only to the extent of temporarily suspending his obligation to pay the plaintiff temporary maintenance and 100% of certain carrying charges on the marital residence.

ORDERED that the appeal from so much of the order dated February 3, 2012, as granted that branch the defendant’s motion which was to modify certain provisions of the order dated July 15, 2011, only to the extent of temporarily suspending his obligation to pay the plaintiff temporary maintenance and 100% of certain carrying charges on the marital residence is dismissed as academic, without costs or disbursements, in light of our determination on the appeal from the order dated July 15, 2011; and it is further,

ORDERED that the order dated July 15, 2011, is modified, on the law, by deleting the provision thereof granting that branch of the plaintiff’s motion which was for pendente lite relief to the extent of directing the defendant to pay the plaintiff both temporary maintenance and 100% of certain carrying charges on the marital residence; as so modified, the order dated July 15, 2011, is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Suffolk County, for a new determination pursuant to Domestic Relations Law § 236(B)(5-a) of those branches of the plaintiff’s motion which were for pendente lite relief as to maintenance and payment of the carrying charges on the marital residence; and it is further,

ORDERED that the order dated February 3, 2012, is affirmed insofar as reviewed, without costs or disbursements. [*2]

Domestic Relations Law § 236(B)(5-a) sets forth formulas for the courts to apply to the parties’ reported income in order to determine the presumptively correct amount of temporary maintenance. Domestic Relations Law § 236(B)(5-a) also provides that any deviation from the result of the statutory formulas should be explained by the court (see Domestic Relations Law § 236[B][5-a][e][1]). In an order dated July 15, 2011, the Supreme Court, inter alia, applied the statutory formulas in Domestic Relations Law § 236(B)(5-a) and granted the plaintiff’s motion for pendente lite relief to the extent of directing the defendant to pay the plaintiff temporary maintenance. In addition, the court directed the defendant to pay the plaintiff 100% of certain carrying charges on the marital residence and an interim counsel fee.

On appeal, the defendant correctly contends that there is no indication that the formulas set forth in Domestic Relations Law § 236(B)(5-a) were intended to cover the temporary support needs of the nonmonied spouse, here the plaintiff, but not the carrying charges on a marital residence (see Khaira v Khaira, 93 AD3d 194, 200 [“”No language in (Domestic Relations Law § 236[B][5-a]) . . . specifically addresses whether the statutory formulas are intended to include the portion of the carrying costs of their residence attributable to the nonmonied spouse and the children””]; A.C. v D.R., 32 Misc 3d 293, 312). Indeed, it is “”reasonable and logical”” to view the formulas set forth in Domestic Relations Law § 236(B)(5-a) “”as covering all the spouse’s basic living expenses, including housing costs”” (Khaira v Khaira, 93 AD3d at 200). Based on the record, it is possible that the Supreme Court was unaware that the temporary maintenance award was intended to cover all of the plaintiff’s basic living expenses. Under the circumstances, that portion of the order dated July 15, 2011, directing the defendant to pay the plaintiff both temporary maintenance and 100% of certain carrying charges on the marital residence must be vacated, and the matter remitted to the Supreme Court, Suffolk County, for a new determination pursuant to Domestic Relations Law § 236(B)(5-a) of those branches of the plaintiff’s motion which were for pendente lite relief as to maintenance and payment of the carrying charges on the marital residence.

However, contrary to the defendant’s contention, the Supreme Court, in performing the statutory calculations pursuant to Domestic Relations Law § 236(B)(5-a), properly declined to impute income to the plaintiff.

In addition, the Supreme Court providently exercised its discretion in directing the defendant to pay the plaintiff an interim counsel fee (see Domestic Relations Law § 237[a]; Prichep v Prichep, 52 AD3d 61). Furthermore, the court properly denied that branch of the defendant’s motion which was, in effect, to vacate so much of the order dated July 15, 2011, as directed him to pay the plaintiff an interim counsel fee.

In light of our determination, we need not address the defendant’s remaining contentions.

SKELOS, J.P., FLORIO, LEVENTHAL and HALL, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Allstate Ins. Co. v GEICO (Govt. Empls. Ins. Co.)             2012-02475         2012 NY Slip Op 07994    “Decided on November 21, 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.

 

2012-02475

(Index No. 32892/11)

 

 

[*1]In the Matter of Allstate Insurance Company, respondent,

 

v

 

GEICO (Government Employees Insurance Company), appellant.

 

 

 

 

 

O’Connor, McGuinness, Conte, Doyle, Oleson, Watson & Loftus,

LLP, White Plains, N.Y. (Montgomery L. Effinger of counsel), for

appellant.

Robert G. Mazeau, New York, N.Y. (Lisa G. Kim and James J.

Bonicos of counsel), for respondent.

 

 

DECISION & ORDER

In a proceeding pursuant to CPLR article 75 to vacate an arbitration award dated July 13, 2011, GEICO (Government Employees Insurance Company) appeals from an order of the Supreme Court, Rockland County (Berliner, J.), dated February 8, 2012, which granted the petition.

ORDERED that the order is reversed, on the law, with costs, the petition is denied, the arbitration award is reinstated and confirmed, and the matter is remitted to the Supreme Court, Rockland County, for the entry of an appropriate judgment (see CPLR 7511[e]; 7514[a]).

The petitioner commenced this proceeding to vacate an arbitration award rendered in favor of GEICO (Government Employees Insurance Company). The petitioner alleged, inter alia, that by failing to consider relevant evidence, the arbitrator committed misconduct. The Supreme Court granted the petition.

“”[J]udicial review of arbitration awards is extremely limited”” (Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471, 479; see Matter of Susan D. Settenbrino, P.C. v Barroga-Hayes, 89 AD3d 1094, 1095, cert deniedUS, 2012 WL 2807645, 2012 US LEXIS 8633[US]). “”An arbitration award must be upheld when the arbitrator offer[s] even a barely colorable justification for the outcome reached'”” (Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d at 479, quoting Matter of Andros Cia [Marc Rich & Co., A.G.] Maritima, S.A., 579 F2d 691, 704). In addition, an “”arbitrator’s award should not be vacated for errors of law and fact committed by the arbitrator and the courts should not assume the role of overseers to mold the award to conform to their sense of justice”” (Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d at 479-480). “”An arbitrator is not bound by principles of substantive law or rules of evidence, and may do justice and apply his or her own sense of law and equity to the facts as he or she finds them to be”” (Matter of Erin Constr. & Dev. Co., Inc. v Meltzer, 58 AD3d 729, 730; see Matter of New York Cent. Lines, LLC v Vitale, 82 AD3d 1244, 1244-1245).

Pursuant to CPLR 7511(b)(1)(i), an arbitration award may be vacated if the court finds that the rights of a party were prejudiced by “”corruption, fraud or misconduct in procuring the award.”” A refusal by an arbitrator to hear pertinent material evidence may constitute misconduct [*2]under CPLR 7511(b)(1)(i) (see Matter of State of N.Y. Off. of Mental Health [New York State Correctional Officers & Police Benevolent Assn., Inc.], 46 AD3d 1269; D’Amato v Leffler, 290 AD2d 475, 476; Matter of Lewis v County of Suffolk, 70 AD2d 107, 111). The party seeking to vacate the arbitration award has the burden of proving by clear and convincing evidence that the arbitrator committed misconduct (see Matter of Susan D. Settenbrino, P.C. v Barroga-Hayes, 89 AD3d at 1096; Matter of Westchester County Correction Officers Benevolent Assn., Inc. v County of Westchester, 81 AD3d 966, 967).

Here, the petitioner failed to meet its burden of proving, by clear and convincing evidence, that the arbitrator committed misconduct (see Matter of Gluck v Eastern Analytical Labs., 271 AD2d 532). Contrary to the petitioner’s contention, there is no indication in the record that the arbitrator refused to consider pertinent material evidence (see Brooks v BDO Seidman, LLP, 94 AD3d 528). Indeed, the arbitration award itself states that the arbitrator considered the petitioner’s submissions, which included the very evidence that the petitioner claims was not considered. Inasmuch as the petitioner failed to demonstrate any misconduct, the Supreme Court erred in granting the petition to vacate the arbitration award (see Matter of Trivino v Allcity Ins. Co., 227 AD2d 638).

In light of our determination, we need not reach the petitioner’s remaining contention.

SKELOS, J.P., FLORIO, LEVENTHAL and HALL, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Arndt v Arndt                2011-06473         2012 NY Slip Op 07995    “Decided on November 21, 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.

 

2011-06473

(Docket Nos. V-09612/08 and V-13185/08)

 

 

[*1]In the Matter of Keith Arndt, appellant,

 

v

 

Nicole Arndt, respondent. (Proceeding No. 1)

 

 

 

In the Matter of Nicole Arndt, respondent,

 

v

 

Keith Arndt, appellant. (Proceeding No. 2)

 

 

 

 

 

Anthony A. Capetola, Williston Park, N.Y. (Joey Michaels of

counsel), for appellant.

Gassman Baiamonte Betts, P.C., Garden City, N.Y. (Stephen

Gassman and Michael C. Daab of

counsel), for respondent.

John M. Zenir, Esq. P.C., Mineola, N.Y., attorney for the child.

 

 

DECISION & ORDER

In two related child custody proceedings pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Nassau County (Bennett, J.), dated June 27, 2011, which, after a hearing, in effect, denied his petition seeking custody of the child and granted the mother’s separate petition for sole custody of the child.

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

The essential consideration in making an award of custody is the best interests of the child (see Eschbach v Eschbach, 56 NY2d 167, 171; Matter of Cardozo v Defretas, 87 AD3d 1138). “”Since custody determinations turn in large part on assessments of the credibility, character, temperament and sincerity of the parties, the Family Court’s determination should not be disturbed unless it lacks a sound and substantial basis in the record”” (Matter of Chery v Richardson, 88 AD3d 788, 788).

Joint custody is encouraged “”as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion”” (Braiman v Braiman, 44 NY2d 584, 589-590). Here, contrary to the father’s contention, the Family Court properly concluded that the parents’ relationship was so acrimonious that it effectively precluded joint decision making (see Matter of Edwards v Rothschild, 60 AD3d 675, 677) and properly determined that it was in the best interests of the parties’ child to award sole custody to the mother, with the father retaining significant visitation rights (see Matter of Schweizer v Jablesnik, 95 AD3d 1341; Matter of Pavone v Bronson, 88 AD3d 724, 725; Freihofner v Freihofner, 33 AD3d 585, 586). The father’s remaining contentions are without merit. [*2]

Accordingly, the Family Court properly awarded sole custody to the mother and denied the father’s petition for sole custody of the subject child.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Baird v New York State Div. of Human Rights  2011-06340         2012 NY Slip Op 07996    “Decided on November 21, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

MARK C. DILLON, J.P.

RUTH C. BALKIN

LEONARD B. AUSTIN

JEFFREY A. COHEN, JJ.

 

2011-06340

(Index No. 23700/10)

 

 

[*1]In the Matter of Rosemarie Baird, appellant,

 

v

 

New York State Division of Human Rights, et al., respondents.

 

 

 

 

 

Glass Krakower LLP, New York, N.Y. (Bryan D. Glass and Jordan

Harlow of counsel), for appellant.

 

 

DECISION & ORDER

In a proceeding, in effect, pursuant to Executive Law § 298 to review a determination of the New York State Division of Human Rights dated July 26, 2010, which dismissed the petitioner’s administrative complaint, upon, inter alia, a finding that there was no probable cause to believe that Kingsboro Psychiatric Center engaged in unlawful discriminatory practices, the petitioner appeals from a judgment of the Supreme Court, Kings County (Rothenberg, J.), dated March 8, 2011, which denied the petition and dismissed the proceeding.

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

The petitioner was employed by the respondent Kingsboro Psychiatric Center (hereinafter Kingsboro) from 1987 through July 2009, at which time she retired on a disability pension. On or about July 24, 2009, immediately before her retirement, the petitioner filed a complaint with the New York State Division of Human Rights (hereinafter the NYSDHR) alleging that Kingsboro permitted a hostile work environment and discriminated against her based upon, inter alia, her age and disability, in violation of the New York State Human Rights Law (Executive Law § 296). By Determination and Order After Investigation dated July 26, 2010, the NYSDHR dismissed the petitioner’s administrative complaint, finding, among other things, that the complained-of acts took place more than one year before she filed the complaint and that there was no probable cause to believe that Kingsboro engaged in the unlawful discriminatory practices complained of.

Thereafter, in September 2010, the petitioner commenced this proceeding in the Supreme Court alleging, inter alia, that the NYSDHR’s determination was arbitrary and capricious. The Supreme Court denied the petition and dismissed the proceeding. The petitioner appeals, and we affirm.

The NYSDHR properly determined that the petitioner’s administrative complaint filed with the NYSDHR was untimely (see Matter of Murphy v Kirkland, 88 AD3d 267, 273).

In any event, contrary to the petitioner’s contentions, the record reflects that the NYSDHR’s investigation was sufficient and was not “” abbreviated or one-sided'”” (Matter of Pajooh [*2]v State Div. of Human Rights, 82 AD3d 609, quoting Matter of Pascual v New York State Div. of Human Rights, 37 AD3d 215, 216; see Matter of Orosz v New York State Div. of Human Rights, 88 AD3d 798, 798-799; Matter of Soo Ching Wu v New York City Commn. on Human Rights, 84 AD3d 823, 824; Matter of McFarland v New York State Div. of Human Rights, 241 AD2d 108, 111).

Moreover, where, as here, the NYSDHR renders a determination of no probable cause without holding a hearing, the appropriate standard of review is whether the probable cause determination was arbitrary and capricious, or lacking a rational basis (see Matter of Orosz v New York State Div. of Human Rights, 88 AD3d at 798-799; Matter of Soo Ching Wu v New York City Commn. on Human Rights, 84 AD3d at 823-824; Matter of Pajooh v State Div. of Human Rights, 82 AD3d 609). The NYSDHR’s determination of no probable cause is “”entitled to considerable deference due to its expertise in evaluating discrimination claims”” (Matter of Camp v New York State Div. of Human Rights, 300 AD2d 481, 482). Here, since the NYSDHR’s determination of no probable cause was made after sufficient investigation and had a basis in the record, the Supreme Court properly denied the petition and dismissed the proceeding (see Matter of Orosz v New York State Div. of Human Rights, 88 AD3d at 798).

DILLON, J.P., BALKIN, AUSTIN and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Bullock v Edwards       2011-10899         2012 NY Slip Op 07997    “Decided on November 21, 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.

 

2011-10899

(Docket No. F-00303-11)

 

 

[*1]In the Matter of Lamonte Bullock, respondent,

 

v

 

Sue Ann Edwards, appellant.

 

 

 

 

 

Sue-Ann Edwards-Arroyo, formerly known as Sue Ann Edwards,

Brooklyn, N.Y., appellant pro se.

Robert A. Ugelow, P.C., Brooklyn, N.Y., for respondent.

 

 

DECISION & ORDER

In a child support proceeding pursuant to Family Court Act article 4, the mother appeals, as limited by her brief, from so much of an order of the Family Court, Kings County (Katz, J.), dated September 28, 2011, as denied her objections to so much of an order of the same court (Milsap, S.M.), dated August 5, 2011, as fixed the father’s child support obligation at the sum of $686.93 semi-monthly.

ORDERED that the order dated September 28, 2011, is affirmed insofar as appealed from, with costs.

Contrary to the mother’s contention, the Support Magistrate properly applied the factors set forth in Family Court Act § 413(1)(f) in determining the father’s child support obligation (see Family Ct Act § 413[1][f]; Matter of Cassano v Cassano, 85 NY2d 649, 651).

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Camet v County of Suffolk      2011-11414         2012 NY Slip Op 07998    “Decided on November 21, 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.

 

2011-11414

(Index No. 1230/11)

 

 

[*1]In the Matter of Elena Camet, appellant,

 

v

 

County of Suffolk, respondent.

 

 

 

 

 

Scott Lockwood, North Babylon, N.Y., for appellant.

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

(Christopher A. Jeffreys of counsel), for

respondent.

 

 

DECISION & ORDER

In a proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim, the petitioner appeals from an order of the Supreme Court, Suffolk County (Farneti, J.), dated October 12, 2011, which denied the petition and, in effect, dismissed the proceeding.

ORDERED that the order is affirmed, with costs.

Pursuant to General Municipal Law § 50-e(5), a court has the discretion to permit the service of a late notice of claim. The relevant factors for the court to consider include whether (1) the petitioner demonstrated a reasonable excuse for failing to serve a timely notice of claim, (2) the municipality acquired actual knowledge of the facts constituting the claim within 90 days from its accrual or a reasonable time thereafter, and (3) the delay would substantially prejudice the municipality in maintaining its defense on the merits (see General Municipal Law 50-e[5]; Matter of Rush v County of Suffolk, 35 AD3d 619, 619; Matter of Henriques v City of New York, 22 AD3d 847, 848; Bovich v East Meadow Pub. Lib., 16 AD3d 11, 19-20).

Here, the petitioner’s conclusory assertions were insufficient to demonstrate a reasonable excuse for her failure to serve a timely notice of claim and for the delay in seeking leave to serve the late notice of claim (see Matter of Alvarez v New York City Hous. Auth., 97 AD3d 668, 670; Matter of Hill v New York City Tr. Auth., 68 AD3d 866, 867). Furthermore, the respondent did not acquire actual knowledge of the essential facts constituting the claim within 90 days from its accrual or a reasonable time thereafter (see General Municipal Law § 50-e[1], [5]). Neither the domestic incident report completed by the petitioner two days before her stolen vehicle was damaged in an accident nor the police accident report completed on the date of the accident provided the respondent with actual knowledge of the essential facts constituting the petitioner’s present claim that her vehicle was damaged due to the respondent’s negligence in allegedly releasing her vehicle to a third party without her permission five days before the accident (see Matter of Alvarez v New York City Hous. Auth., 97 AD3d at 669-670; Matter of Hill v New York City Tr. Auth., 68 AD3d at 867; Bridgeview at Babylon Cove Homeowners Assn., Inc. v Incorporated Vil. of Babylon, 41 AD3d [*2]404, 406). Finally, the petitioner did not establish that the delay in commencing this proceeding will not substantially prejudice the respondent in maintaining its defense on the merits (see Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d 138, 152; Matter of Lorseille v New York City Hous. Auth., 295 AD2d 612, 612; Matter of Sheff v County of Westchester, 279 AD2d 632, 633).

Accordingly, the Supreme Court properly denied the petition and, in effect, dismissed the proceeding.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Chu Man Woo v Qiong Yun Xi 2011-09116         2012 NY Slip Op 07999    “Decided on November 21, 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.

 

2011-09116

(Docket No. O-3882-06)

 

 

[*1]In the Matter of Chu Man Woo, appellant,

 

v

 

Qiong Yun Xi, respondent.

 

 

 

 

 

Lewis S. Calderon, Jamaica, N.Y., for appellant.

Mark Brandys, New York, N.Y., for respondent.

 

 

DECISION & ORDER

In a family offense proceeding pursuant to Family Court Act article 8, the husband appeals from an order of the Family Court, Kings County (Hepner, J.), dated September 15, 2011, which, after a hearing, dismissed his petition.

ORDERED that the matter is remitted to the Family Court, Kings County, for a reconstruction hearing with respect to those proceedings conducted in the above-entitled case on July 27, 2011, which cannot be transcribed, and thereafter to report to this Court with all convenient speed, and the appeal is held in abeyance in the interim.

The husband contends, among other things, that the Family Court erred in dismissing his family offense petition on the basis that the wife’s testimony at the hearing on the petition was credible. However, the issues raised by the husband on appeal cannot be resolved on the record provided to this Court since it does not contain a transcript for the proceedings held on July 27, 2011, which included portions of the wife’s testimony. Accordingly, we remit the matter to the Family Court, Kings County, for a reconstruction hearing with respect to those proceedings conducted in the above-entitled case on July 27, 2011, which cannot be transcribed, and the appeal is held in abeyance in the interim (see Matter of Garner v Garner, 88 AD3d 708, 709; Matter of Hall v Ladson, 18 AD3d 753).

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

ENTER: [*2]

Aprilanne Agostino

Clerk of the Court”

Matter of Crivelli v Tolento          2011-03032         2012 NY Slip Op 08000    “Decided on November 21, 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.

 

2011-03032

2011-03038

(Docket Nos. V-1961-08, V-1963-08, V-4338-09/10)

 

 

[*1]In the Matter of Lorraine Crivelli, appellant,

 

v

 

Joseph Tolento, respondent.

 

 

 

 

 

Tennille M. Tatum-Evans, New York, N.Y., for appellant.

Steven Greenfield, West Hampton Dunes, N.Y., for respondent.

Frank M. Galchus, Fresh Meadows, N.Y., attorney for the

children.

 

 

DECISION & ORDER

In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals (1) from a decision of the Family Court, Queens County (Seiden, Ct. Atty. Ref.), dated March 7, 2011, made after a hearing, and (2) an order of the same court dated March 11, 2011, which, upon the decision, in effect, granted the father’s petition for sole custody of the subject children and denied her petition for sole custody of the subject children.

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 is affirmed, without costs or disbursements.

The mother and the father had two children and lived together with them in Queens. However, the mother suddenly moved with the children from Queens to Saratoga Springs, New York, secretly and without providing any notice to the father. The day after the move, the mother filed a petition for sole custody of the children in the Family Court, Saratoga County. That same day, the father filed his petition for sole custody of the children in the Family Court, Queens County. The mother’s custody petition ultimately was transferred to the Family Court, Queens County.

After a hearing, the Family Court awarded sole custody of the children to the mother, on condition that she return to New York City. The Family Court further provided that, in the event the mother did not return to New York City, it would award sole custody to the father. The mother did not return to New York City and sole custody was awarded to the father.

The essential consideration in any custody dispute is the best interests of the children (see Eschbach v Eschbach, 56 NY2d 167, 171; Matter of Dwyer-Hayde v Forcier, 67 AD3d 1011, 1011). In determining the best interests of the children, “”the court must evaluate the totality of [the] circumstances”” (Nicholas T. v Christine T., 42 AD3d 526, 527 [internal quotation marks omitted]; see Eschbach v Eschbach, 56 NY2d at 171). While the recommendation of a court-appointed forensic psychologist is to be considered in making a custody determination and is entitled to some weight, it is not determinative and does not usurp the judgment of the trial judge (see Bourne v [*2]Bristow, 66 AD3d 621, 621-622; Matter of Kozlowski v Mangialino, 36 AD3d 916, 917). Moreover, “”[c]ustody determinations depend to a very great extent upon the hearing court’s assessment of the credibility of the witnesses and of the character, temperament, and sincerity of the parties”” (Matter of Brian S. v Stephanie P., 34 AD3d 685, 686 [internal quotation marks omitted]; see Matter of Irene O., 38 NY2d 776, 777). Thus, where a hearing court has conducted a complete evidentiary hearing, its findings must be accorded great weight, and its award of custody will not be disturbed unless it lacks a sound and substantial basis in the record (see Eschbach v Eschbach, 56 NY2d at 173; Bourne v Bristow, 66 AD3d at 622; Matter of Brian S. v Stephanie P., 34 AD3d at 686).

Here, the Family Court’s determination to award sole custody to the father in the event that the mother did not return to New York City had a sound and substantial basis in the record. The evidence adduced at the hearing supported the Family Court’s findings that the father was the more stable parent, that the mother did not provide sufficient academic support for the children, and that the mother and children were isolated from any type of support system in Saratoga Springs. The evidence also demonstrated that there was an established familial support system in Queens.

While the court-appointed evaluator recommended that custody of the children should be awarded to the mother even if she continued to reside in Saratoga Springs, the Family Court’s determination was nonetheless supported by a sound and substantial basis in the record. The record revealed that both parties loved their children and played a substantial role in caring for them. The father, however, demonstrated that he was the more stable parent and had a greater ability to provide for the children financially, emotionally, and academically.

The mother’s remaining contentions are without merit.

Accordingly, the Family Court’s determination will not be disturbed (see Bourne v Bristow, 66 AD3d at 622).

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Ashanti D.       2012-01601         2012 NY Slip Op 08001    “Decided on November 21, 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.

 

2012-01601

(Docket No. D-5565-11)

 

 

[*1]In the Matter of Ashanti D. (Anonymous), appellant.

 

 

 

 

 

Steven Banks, New York, N.Y. (Tamara A. Steckler and Susan

Clement of counsel), for appellant.

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

(Pamela Seider Dolgow and Suzanne

K. Colt of counsel), for respondent.

 

 

DECISION & ORDER

In a juvenile delinquency proceeding pursuant to Family Court Act article 3, Ashanti D. appeals from an order of disposition of the Family Court, Richmond County (Sacco, J.), dated February 6, 2012, which, upon a fact-finding order of the same court dated January 5, 2012, made upon her admission, finding that she had committed acts which, if committed by an adult, would have constituted the crime of attempted assault in the third degree, adjudged her to be a juvenile delinquent, and placed her on probation under the supervision of the Probation Department of the County of Richmond for a period of seven months.

ORDERED that the appeal from so much of the order of disposition as placed the appellant on probation for a period of seven months is dismissed, without costs or disbursements, as that period has expired; and it is further,

ORDERED that the order of disposition is affirmed insofar as reviewed, without costs or disbursements.

Despite the fact that the term of the appellant’s probation has already expired, there may be collateral consequences resulting from the adjudication of delinquency and, therefore, the appeal from the portion of the order of disposition that adjudged the appellant to be a juvenile delinquent has not been rendered academic (see Matter of Natasha G., 91 AD3d 948, 949; Matter of Tafari M., 90 AD3d 1052; Matter of Isaiah I., 23 AD3d 469; see also Family Ct Act § 381.2[2]).

The Family Court providently exercised its broad discretion in adjudicating the appellant a juvenile delinquent and directing a seven-month period of probation instead of granting the appellant an adjournment in contemplation of dismissal (see Family Ct Act § 315.3; see also Matter of Antoine H., 81 AD3d 646; Matter of Eunique B., 73 AD3d 764). The appellant was not entitled to an adjournment in contemplation of dismissal merely because she had no previous encounters with the law, or in light of the other mitigating circumstances that she cites (see Matter of Liston J., 81 AD3d 648, 648). The record establishes that the Family Court’s imposition of probation was the least restrictive alternative consistent with the appellant’s best interests and the [*2]need for protection of the community (see Family Ct Act 352.2[2][a]; Matter of Natasha G., 91 AD3d 948, 949; Matter of Liston J., 81 AD3d at 649).

DILLON, J.P., AUSTIN, SGROI and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Ashanti D.       2012-01601         2012 NY Slip Op 08001    “Decided on November 21, 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.

 

2012-01601

(Docket No. D-5565-11)

 

 

[*1]In the Matter of Ashanti D. (Anonymous), appellant.

 

 

 

 

 

Steven Banks, New York, N.Y. (Tamara A. Steckler and Susan

Clement of counsel), for appellant.

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

(Pamela Seider Dolgow and Suzanne

K. Colt of counsel), for respondent.

 

 

DECISION & ORDER

In a juvenile delinquency proceeding pursuant to Family Court Act article 3, Ashanti D. appeals from an order of disposition of the Family Court, Richmond County (Sacco, J.), dated February 6, 2012, which, upon a fact-finding order of the same court dated January 5, 2012, made upon her admission, finding that she had committed acts which, if committed by an adult, would have constituted the crime of attempted assault in the third degree, adjudged her to be a juvenile delinquent, and placed her on probation under the supervision of the Probation Department of the County of Richmond for a period of seven months.

ORDERED that the appeal from so much of the order of disposition as placed the appellant on probation for a period of seven months is dismissed, without costs or disbursements, as that period has expired; and it is further,

ORDERED that the order of disposition is affirmed insofar as reviewed, without costs or disbursements.

Despite the fact that the term of the appellant’s probation has already expired, there may be collateral consequences resulting from the adjudication of delinquency and, therefore, the appeal from the portion of the order of disposition that adjudged the appellant to be a juvenile delinquent has not been rendered academic (see Matter of Natasha G., 91 AD3d 948, 949; Matter of Tafari M., 90 AD3d 1052; Matter of Isaiah I., 23 AD3d 469; see also Family Ct Act § 381.2[2]).

The Family Court providently exercised its broad discretion in adjudicating the appellant a juvenile delinquent and directing a seven-month period of probation instead of granting the appellant an adjournment in contemplation of dismissal (see Family Ct Act § 315.3; see also Matter of Antoine H., 81 AD3d 646; Matter of Eunique B., 73 AD3d 764). The appellant was not entitled to an adjournment in contemplation of dismissal merely because she had no previous encounters with the law, or in light of the other mitigating circumstances that she cites (see Matter of Liston J., 81 AD3d 648, 648). The record establishes that the Family Court’s imposition of probation was the least restrictive alternative consistent with the appellant’s best interests and the [*2]need for protection of the community (see Family Ct Act 352.2[2][a]; Matter of Natasha G., 91 AD3d 948, 949; Matter of Liston J., 81 AD3d at 649).

DILLON, J.P., AUSTIN, SGROI and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of DeCintio v Village of Tuckahoe              2010-11984         2012 NY Slip Op 08002    “Decided on November 21, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

DANIEL D. ANGIOLILLO, J.P.

PLUMMER E. LOTT

LEONARD B. AUSTIN

JEFFREY A. COHEN, JJ.

 

2010-11984

(Index No. 4221/10)

 

 

[*1]In the Matter of Anthony J. DeCintio, petitioner, Kevin McBride, et al., petitioners-respondents,

 

v

 

Village of Tuckahoe, et al., appellants.

 

 

 

 

 

Sokoloff Stern LLP, Westbury, N.Y. (Steven C. Stern and Mark A.

Radi of counsel), for appellants.

Anthony J. DeCintio, Tuckahoe, N.Y., for petitioners-

respondents.

 

 

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to review a determination of John Fitzpatrick, the Mayor of the Village of Tuckahoe, dated November 13, 2009, which, after a hearing, found the petitioners Kevin McBride and Phillip White guilty of inefficiency, neglect of duty, and misconduct in their positions as Commissioners of the Tuckahoe Housing Authority and removed them from their posts, and to compel the Village of Tuckahoe to conduct a name-clearing hearing, the Village of Tuckahoe and John Fitzpatrick appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Westchester County (Holdman, J.), entered October 27, 2010, as granted the petition to the extent of annulling the determination on the ground that John Fitzpatrick was not an impartial hearing officer and remitted the matter to John Fitzpatrick for the appointment of an impartial hearing officer to conduct a de novo hearing.

ORDERED that the judgment is reversed insofar as appealed from, on the law and the facts, with costs, that branch of the petition which was to annul the determination on the ground that John Fitzpatrick was not an impartial hearing officer is denied as academic, that branch of the petition which was to compel the Village of Tuckahoe to conduct a name-clearing hearing is denied, and the proceeding is dismissed.

The petitioners Kevin McBride and Phillip White (hereinafter together the petitioners), along with Anthony DeCintio, commenced this proceeding pursuant to CPLR article 78 seeking, inter alia, to annul the determination of John Fitzpatrick, the Mayor of the Village of Tuckahoe, removing McBride and White from their positions as Commissioners of the Village of Tuckahoe Housing Authority (hereinafter THA) and, thereafter, to reinstate McBride and White to those positions. Charges of inefficiency, neglect of duty, and misconduct were preferred by Fitzpatrick against McBride and White as a consequence of an Audit Report issued by the United States Department of Housing and Urban Development (hereinafter HUD), which identified weaknesses in THA’s management and operations. The petitioners claim that Fitzpatrick, who presided over the removal hearing, was biased against them. The Supreme Court granted the petition to the extent of annulling the determination on the ground that Fitzpatrick was not an impartial hearing officer and directed Fitzpatrick to appoint an impartial hearing officer to conduct a de novo [*2]hearing, based upon the finding that Fitzpatrick’s failure to recuse himself as the hearing officer violated the petitioners’ due process right to a fair hearing.

Although Fitzpatrick should have recused himself from presiding over the removal hearing, the petition has been rendered academic to the extent that it seeks a judgment annulling his determination dated November 13, 2009, to remove the petitioners from office, since the petitioners’ terms expired prior to the submission of this appeal, and they no longer hold public office (cf. Matter of Gumo v Canzoneri, 263 AD2d 456). Similarly, so much of the judgment as remitted the matter to Fitzpatrick for the appointment of an impartial hearing officer to conduct a de novo hearing has been rendered academic by the expiration of the petitioners’ terms of office.

Contrary to the petitioners’ argument, they have not established an exception to the mootness doctrine. The petitioners have failed to show, and the record does not demonstrate, that the process involved in the removal of THA Commissioners is a phenomenon typically evading review or that there are substantial and novel issues raised herein (see generally Matter of Hearst Corp. v Clyne, 50 NY2d 707; Matter of Field v Stamile, 85 AD3d 1164). Furthermore, despite the petitioners’ contention that the Village and Fitzpatrick are attempting to thwart the remedial purpose that underlies the instant CPLR article 78 proceeding, the petitioners have failed to establish that the Village and Fitzpatrick deliberately delayed this matter so as to allow the petitioners’ terms to expire, and thereby foreclose judicial review.

The expiration of the petitioners’ terms of office does not, however, preclude the petitioners from exercising their right to seek a name-clearing hearing upon a showing that Fitzpatrick created and disseminated a false and defamatory impression about them in connection with their removal (see Matter of Lentlie v Egan, 61 NY2d 874, 875). As such, the petitioners also sought such relief in their petition.

The petitioners contend that Fitzpatrick focused only on those Commissioners of the THA that had been appointed by his predecessor as mayor, rather than elected by public housing tenants, and that this focus tended to create an impression that those specific Commissioners of the THA, including the petitioners, were guilty of misconduct. However, the alleged misconduct constituted, at best, “”individual or isolated instances of bad judgment or incompetent performance of duties, correctable by learning from one’s mistakes, which are not stigma[s] of constitutional proportions”” entitling the petitioners to a name-clearing hearing (Matter of Swinton v Safir, 93 NY2d 758, 763 [internal quotation marks omitted]; see Matter of Petix v Connelie, 47 NY2d 457). Furthermore, there is no indication that any of Fitzpatrick’s findings or comments made to the media were false since they were based upon the problems identified in the HUD Audit Report (see generally Matter of Engoren v County of Nassau, 163 AD2d 520). Instead of directly disputing the charges, the petitioners largely argue that THA’s former executive director and THA’s attorney should be made to answer for the identified problems. Thus, the petitioners have not demonstrated their entitlement to a name-clearing hearing.

In view of the foregoing, we need not address the parties’ remaining contentions.

ANGIOLILLO, J.P., LOTT, AUSTIN and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Duroseau v Cestero   2011-08599         2012 NY Slip Op 08003    “Decided on November 21, 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.

 

2011-08599

(Index No. 10752/10)

 

 

[*1]In the Matter of Linda Duroseau, appellant,

 

v

 

Rafael E. Cestero, etc., respondent-respondent, et al., respondent.

 

 

 

 

 

Kathleen A. Masters, Brooklyn, N.Y. (Alfred Toussaint of counsel),

for appellant.

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

(Norman Corenthal and Kristin M.

Helmers of counsel), for respondent-

respondent.

 

 

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to review a determination of Rafael E. Cestero, as Commissioner of the New York City Department of Housing Preservation and Development, dated December 29, 2009, which, upon a finding that the petitioner failed to report income earned by her adult daughter, made after a hearing, terminated the petitioner’s benefits under Section 8 of the United States Housing Act of 1937 (42 USC § 1437f [b][1]), the petitioner appeals from a judgment of the Supreme Court, Kings County (Schack, J.), dated January 31, 2011, which, in effect, denied the petition and dismissed the proceeding.

ORDERED that the judgment is reversed, on the law, without costs or disbursements, the petition is granted, the penalty of termination is vacated, and the matter is remitted to Rafael E. Cestero, as Commissioner of the New York City Department of Housing Preservation and Development, for the imposition of a lesser penalty.

“”An administrative penalty must be upheld unless it is so disproportionate to the offense as to be shocking to one’s sense of fairness, thus constituting an abuse of discretion as a matter of law”” (Matter of Idahosa v Farmingdale State Coll., 97 AD3d 580, 581, lv denied 19 NY3d 813; see Matter of Kreisler v New York City Tr. Auth., 2 NY3d 775). “”[A] result is shocking to one’s sense of fairness if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals”” (Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 234; see Matter of Idahosa v Farmingdale State Coll., 97 AD3d at 581).

Here, the petitioner failed to report the income earned by her adult daughter who, although a member of the petitioner’s household, was attending college out-of-state. However, there is no indication in the record of what impact the petitioner’s failure to report her adult daughter’s income had, if any, on the amount of her housing subsidy (see Matter of Gray v Donovan, 58 AD3d [*2]488). Under the particular circumstances of this case, including, inter alia, the fact that the petitioner has resided in the subject apartment for a number of years with her other two children, we find the penalty of terminating the petitioner’s Section 8 rent subsidy to be so disproportionate to the offense as to be shocking to one’s sense of fairness, thus constituting an abuse of discretion as a matter of law (see Matter of Gray v Donovan, 58 AD3d at 488; Matter of Davis v New York City Dept. of Hous. Preserv. & Dev., 58 AD3d 418, 419; Matter of Sicardo v Smith, 49 AD3d 761, 762).

The petitioner’s remaining contention is unpreserved for appellate review.

Accordingly, the matter must be remitted to Rafael E. Cestero, as Commissioner of the New York City Department of Housing and Development, for the imposition of a lesser penalty.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of J.F. (Parr)        2011-08512         2012 NY Slip Op 08004    “Decided on November 21, 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.

 

2011-08512

(Index No. 100265/07)

 

 

[*1]In the Matter of J. F. (Anonymous). Michelle Walcott Williams, etc., et al., appellants;

 

and

 

Keely D. Parr, respondent.

 

 

 

 

 

Robert Kruger, New York, N.Y., appellant pro se, and for appellant

Michelle Walcott Williams.

Keely D. Parr, Brooklyn, N.Y., respondent pro se.

Stephen J. Silverberg, Roslyn, N.Y., for amicus curiae New

York Chapter of National Academy of

Elder Law Attorneys, Inc.

Harvey L. Greenberg, New York, N.Y., amicus curiae pro se.

 

 

DECISION & ORDER

In a proceeding pursuant to Mental Hygiene Law article 81, the coguardians for the property management of J. F. appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Spodek, J.), dated July 7, 2011, as granted that branch of their motion which was to vacate so much of a prior order of the same court dated September 27, 2010, as, upon confirming a report of a court examiner regarding their guardianship accounts for the 2008 accounting period, imposed a surcharge upon them in the sum of $10,777.47, only to the extent of reducing the surcharge to the sum of $8,777.47, in effect, denied that branch of their motion which was for an award of commissions and fees for the 2008 accounting period, and granted that branch of the cross motion of the court examiner which was for an award of certain fees.

ORDERED that the order dated July 7, 2011, is modified, on the law and in the exercise of discretion, (1) by deleting the provision thereof granting that branch of the coguardians’ motion which was to vacate so much of the order dated September 27, 2010, as imposed a surcharge upon them in the sum of $10,777.47, only to the extent of reducing the surcharge to the sum of $8,777.47, and substituting therefor a provision granting that branch of the coguardians’ motion to the extent of reducing the surcharge to the sum of $790.14, and (2) by deleting the provision thereof, in effect, denying that branch of their motion which was for an award of commissions and fees for the 2008 accounting period, and substituting therefor a provision granting that branch of their motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent herewith.

In this guardianship proceeding, the Supreme Court properly disallowed [*2]disbursements made by the coguardians in the sum of the $790.14 during the 2008 accounting period, on the ground that those disbursements were not substantiated with documentary evidence (see Matter of Carl R. [Wright], 93 AD3d 728, 729). However, under the circumstances of this case, the Supreme Court erred in disallowing disbursements made by the coguardians in the sum of $7,987.33. Further, the Supreme Court should have awarded the coguardians commissions and fees for the 2008 accounting period (see Mental Hygiene Law §§ 81.20[a], 81.28). Therefore, the matter must be remitted to the Supreme Court, Kings County, for the calculation of the coguardians’ commissions and fees for the 2008 accounting period.

The Supreme Court providently exercised its discretion in granting that branch of the motion of the court examiner which was for an award of certain fees (see Matter of Freeman, 34 NY2d 1, 9; Matter of Marion C.W. [Lisa K.—Maguire], 83 AD3d 1089, 1090).

SKELOS, J.P., FLORIO, LEVENTHAL and HALL, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Grecco v Cimino           2010-10667         2012 NY Slip Op 08005    “Decided on November 21, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

RANDALL T. ENG, P.J.

MARK C. DILLON

PLUMMER E. LOTT

JEFFREY A. COHEN, JJ.

 

2010-10667

(Index No. 45759/09)

 

 

[*1]In the Matter of Allan Grecco, appellant,

 

v

 

Robert J. Cimino, etc., et al., respondents.

 

 

 

 

 

Bracken Margolin Besunder LLP, Islandia, N.Y. (Harvey B.

Besunder and Zachary D. Dubey of counsel), for appellant.

Dennis M. Cohen, County Attorney, Hauppauge, N.Y. (John R.

Petrowski of counsel), for respondents.

 

 

DECISION & ORDER

In a hybrid proceeding pursuant to CPLR article 78 to review a determination of the County Attorney of the County of Suffolk dated August 20, 2009, which denied the request of the petitioner/plaintiff to be indemnified and reimbursed for the attorney’s fees and legal expenses he incurred in two discontinued actions entitled Glass v Grecco (12 AD3d 347) and State of New York v Grecco (21 AD3d 470), as well as certain proceedings and government investigations, and action for a judgment declaring that Suffolk County Code former § 35-3(A), recodified as Suffolk County Code § 42-3(A), requires the County of Suffolk to indemnify and reimburse the petitioner/plaintiff for the attorney’s fees and legal expenses he incurred in those underlying actions, proceedings, and investigations, the petitioner/plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Whelan, J.), entered September 13, 2010, which, upon an order of the same court dated July 9, 2010, granting the respondents/defendants’ motion pursuant to CPLR 3211(a)(5) and (7) and 7804(f) to dismiss the petition/complaint, dismissed the hybrid proceeding and action.

ORDERED that the judgment is reversed, on the law, with costs, the respondents/defendants’ motion to dismiss the petition/complaint is denied, the petition/complaint is reinstated, the order is modified accordingly, and the matter is remitted to the Supreme Court, Suffolk County, for the service and filing of an answer and the administrative record, and for further proceedings on the petition/complaint.

The present hybrid proceeding and action is the latest in a series of actions and proceedings that arise from certain real estate transactions that took place while the petitioner/plaintiff, Allan Grecco, was the Deputy Director, and then the Director, of the Suffolk County Division of Real Estate (hereinafter the SCDRE). During Grecco’s tenure at the SCDRE, he was also the president and sole shareholder of a title company known as Peerless Abstract Corp. (hereinafter Peerless). In essence, the underlying issue in all of those cases was whether Grecco misused his position with the SCDRE to benefit local real estate developers, particularly Robert Toussie, who purportedly steered a substantial amount of business to Peerless. Grecco commenced the instant hybrid CPLR article 78 proceeding and declaratory judgment action seeking, inter alia, to annul a determination of the Suffolk County Attorney that Grecco was not entitled to be [*2]indemnified or reimbursed for the attorney’s fee and legal expenses he incurred in two discontinued actions, on the ground that the determination was arbitrary and capricious.

In 1999, the Suffolk County Legislature authorized Grecco, on behalf of the County, to purchase certain real property known as the Chandler Estate, which consists of approximately 40 acres of undeveloped land on the shore of the Mt. Sinai Harbor in the Town of Brookhaven. The County’s purchase of the Chandler Estate for the sum of $5 million generated controversy, and resulted in the commencement of various actions, proceedings, and investigations. In December 2001, Esther Glass and five other residents of the Town commenced a taxpayers’ action pursuant to General Municipal Law § 51, to, inter alia, annul the purchase of the Chandler Estate on the ground that it was a waste of public funds (see Glass v Grecco, 12 AD3d 347) (hereinafter the Glass Action). In relevant part, the complaint in the Glass Action alleged that Grecco violated his fiduciary duty and applicable conflict-of-interest rules by failing to disclose that he and Peerless had a business relationship with Toussie, and that both Peerless and Toussie directly benefited from the County’s purchase of the Chandler Estate. Notwithstanding those allegations, the complaint in the Glass Action did not seek any relief from Grecco or Peerless. The plaintiffs in the Glass Action voluntarily discontinued the Glass Action in May 2003.

In April 2002, then-Attorney General Eliot Spitzer commenced an action pursuant to Executive Law § 63-c, commonly known as the “”Tweed Law,”” to recover the funds that Grecco and Toussie allegedly misappropriated from the County (hereinafter the Attorney General’s Action). The Tweed Law, which was enacted in 1875, authorizes the Attorney General to stand in the shoes of a local government to recover public funds that have been “”without right obtained, received, converted, or disposed of”” (Executive Law § 63-c[1]). In the Attorney General’s Action, the Supreme Court, in relevant part, granted Grecco’s motion pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against him and entered a judgment, inter alia, in Grecco’s favor. This Court, however, modified the judgment, in relevant part, by reinstating the first and second causes of action insofar as they asserted that Grecco breached his fiduciary duty and engaged in activities creating a conflict of interest during the Chandler Estate transaction (see State of New York v Grecco, 21 AD3d 470). Thereafter, in an order dated November 1, 2006, the Supreme Court, in relevant part, denied Grecco’s motion for summary judgment dismissing the first and second causes of action insofar as asserted against him in the Attorney General’s Action on the ground that Grecco failed to make a prima facie showing of entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). In a decision and order dated August 7, 2007, this Court, in relevant part, affirmed the Supreme Court’s order (see State of New York v Grecco, 43 AD3d 397).

In a determination dated July 22, 2002, and adhered to on September 23, 2002, then-Suffolk County Attorney Robert J. Cimino denied Grecco’s request for a legal defense in the various actions, proceedings, and investigations, based on the allegations in those matters that Grecco, in the course of his involvement in various real estate transactions, was not acting within the scope of his employment as the Director of the SCDRE, but in furtherance of his personal financial interest in Peerless (hereinafter the Cimino Determination).

In November 2002, Grecco commenced a hybrid proceeding pursuant to CPLR article 78 to set aside the Cimino Determination as arbitrary and capricious, and action for a judgment declaring, inter alia, that Suffolk County must reimburse him for the attorney’s fees and legal expenses he had already incurred, and would continue to incur, in the underlying actions, proceedings, and investigations (hereinafter Grecco I).

Although the Supreme Court granted most of Grecco’s requests for relief, on December 6, 2004, this Court, in relevant part, reversed the judgment, dismissed the petition, and determined that the Cimino Determination was not arbitrary and capricious (see Matter of Grecco v Cimino, 13 AD3d 371), stating, in relevant part, as follows:

“”However, our determination is without prejudice to Grecco seeking reimbursement for counsel fees and costs incurred in the [Glass [*3]Action] and the [Attorney General’s Action], and in the proceedings and investigations in the event that it is ultimately determined that Grecco’s conduct concerning the purchase of the Chandler Estate was within the scope of his duties and public employment.”” (id. at 373)[citation omitted]).

After the parties settled the Attorney General’s Action on June 17, 2009, Grecco resubmitted his claim to Christine Malafi, who was by then the Suffolk County Attorney, to be reimbursed for his attorney’s fees and legal expenses. In a determination dated August 20, 2009 (hereinafter the Malafi Determination), Malafi stated that the County would not pay any of Grecco’s litigation costs. On December 2, 2009, Grecco commenced the present hybrid proceeding pursuant to CPLR article 78 to review the Malafi Determination and action for a judgment declaring that Grecco was acting within the scope of his employment when the alleged wrongdoing occurred and, accordingly, that Suffolk County Code former § 35-3(A) (recodified as Suffolk County Code § 42-3[A]) required Suffolk County to pay for the attorney’s fee and legal expenses he incurred in the underlying actions, proceedings, and investigations (hereinafter Grecco II). The defendants/respondents (hereinafter the defendants) moved to dismiss the petition/complaint as time-barred and for failure to state a cause of action. In an order dated July 9, 2010, the Supreme Court granted the motion. In a judgment entered thereon on September 13, 2010, the Supreme Court dismissed the proceeding and action. The Supreme Court reasoned that this Court permitted Grecco a second chance to seek indemnification and reimbursement only if it were ultimately determined that his conduct in connection with the purchase of the Chandler Estate was within the scope of his public employment, and that Grecco failed to demonstrate, with reference to the subject actions, proceedings, or investigations, that he was so acting. Grecco appeals. We reverse and reinstate the petition/complaint.

At the outset, contrary to the defendants’ contention, this hybrid proceeding and action is not barred by the four-month statute of limitations set forth in CPLR 217(1). The record reveals that Grecco served a notice of claim on September 10, 2009, which was less than one month after the Malafi Determination, which was dated August 20, 2009, and that Grecco commenced the present hybrid proceeding and action on December 14, 2009, which was less than four months after the Malafi Determination was rendered.

With respect to the merits of the matter, the County’s duty to defend its employees was governed, at all relevant times, by Suffolk County Code former § 35-3(A) (now recodified as Suffolk County Code § 42-3[A]), which was enacted in 1981 to protect employees who are charged in civil actions with misconduct in office. The legislative purpose of this provision was to alleviate the potential financial burden of litigation, which often discourages qualified people from seeking or accepting employment with the County (see Suffolk County Code former § 35-1). Notably, Suffolk County Code former § 35-3(A) tracks the language of similar state statutes, which were also enacted to ensure that public employees would not be required to personally defend themselves against claims arising out of the daily operation of the government (see Public Officers Law § 18[3][a] [protects employees of counties, cities, towns, villages and other political subdivisions]; General Municipal Law § 50-k[2] [protects New York City employees]; cf. General Municipal Law § 50-m [protects police and peace officers of Suffolk County]). Pursuant to Suffolk County Code former § 35-3(A), Suffolk County was, at all relevant times, obligated to provide a legal defense for its employees on the following conditions:

“”Upon compliance by the employee, peace officer or legislator with the provisions of § 35-4 of this Article, the county shall provide for the defense of the employee in any civil action or proceeding in any state or federal court or administrative agency arising out of any alleged act or omission which occurred while the employee was acting, or in good faith purporting to act, within the scope of his public employment or duties or which is brought to enforce any provisions of Sections 1981 through 1988 of Title 42 of the United States Code. This defense shall not be provided where such civil [*4]action or proceeding is brought by or on behalf of the county or any agency of the county. The determination of an issue of whether or not an employee was acting within the scope of his public employment or duties at the time of the occurrence, act or omission giving rise to a claim shall be made in the first instance by the County Attorney.””

The question of whether a county employee was acting within the scope of his or her employment when the alleged wrongdoing occurred is a factual one, which must be determined in the first instance by the County Attorney, and that determination “”may be set aside only if it lacks a factual basis, and in that sense, is arbitrary and capricious”” (Matter of Williams v City of New York, 64 NY2d 800, 802; see Matter of Vitucci v City of New York, 272 AD2d 620; Matter of Polak v City of Schenectady, 181 AD2d 233; Bestafka v County of Suffolk, 121 AD2d 670). A determination is deemed to be arbitrary if it is made without a sound basis in reason and without regard to the facts (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 222, 231).

Malafi, in her capacity as County Attorney, determined that Grecco was not an employee acting within the scope of his employment when the alleged wrongdoing occurred, and that he is, thus, not entitled to be indemnified or reimbursed for the attorney’s fees and legal expenses he sought. The Malafi Determination was made seven years after Cimino, in his capacity as Malafi’s predecessor, rejected Grecco’s request for a legal defense. During those seven years, the following events, among others, occurred: (1) the Glass Action was discontinued in May 2003; (2) the deposition testimony of at least two witnesses, Teresa Allar and Stephen Jones, indicated that Grecco was acting within the scope of his employment; (3) the parties settled the Attorney General’s Action in June 2009; (4) all of the governmental investigations were resolved without any adverse finding against Grecco; (5) Suffolk County never commenced an action against Grecco based on any wrongdoing; and (6) Suffolk County expressed its satisfaction with the acquisition of the Chandler Estate by rejecting the original seller’s offer to repurchase the property for a higher price. The actions, proceedings, and investigations that culminated in the commencement and prosecution of the Glass Action and the Attorney General’s Action have concluded. Accordingly, the Malafi Determination, which was made with the benefit of the additional facts and events that occurred over the seven years since this Court’s decision and order in Grecco I, was, in effect, the ultimate administrative determination in this dispute, which may be set aside if it is ultimately determined to be arbitrary and capricious (see Matter of Williams v City of New York, 64 NY2d at 802; Matter of Grecco v Cimino, 13 AD3d 371; Matter of Vitucci v City of New York, 272 AD2d 620; Matter of Polak v City of Schenectady, 181 AD2d 233; Bestafka v County of Suffolk, 121 AD2d 670). On a motion to dismiss a pleading pursuant to CPLR 3211(a)(7), all of the allegations in the petition are deemed true and the petitioner is afforded the benefit of every favorable inference (see Matter of Oddone v Suffolk County Police Dept., 96 AD3d 758, 760; Matter of Kar-McVeigh, LLC v Zoning Bd. of Appeals of Town of Riverhead, 93 AD3d 799, 800). In determining such a motion, the sole criterion is whether the petition sets forth allegations sufficient to make out a claim that the determination sought to be reviewed was “”made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion”” (CPLR 7803[3]; see Matter of Oddone v Suffolk County Police Dept., 96 AD3d at 760). In light of the foregoing, Greco properly stated a cause of action for relief pursuant to CPLR article 78 to review the Malafi Determination.

Moreover, Grecco also properly stated a cause of action for a judgment declaring that Suffolk County Code former § 35-3(A) required the County to reimburse and indemnify him for the attorney’s fees and legal expenses he incurred. “”A motion to dismiss a declaratory judgment action prior to the service of an answer presents for consideration only the issue of whether a cause of action for declaratory relief is set forth, not the question of whether the plaintiff is entitled to a favorable declaration”” (Staver Co. v Skrobisch, 144 AD2d 449, 450; see State Farm Mut. Auto. Ins. Co. v Anikeyeva, 89 AD3d 1009, 1010). Grecco’s allegations were sufficient in this regard.

The parties’ remaining contentions either are without merit or need not be addressed in light of our determination. [*5]

In light of the foregoing, the Supreme Court should not have granted the respondents/defendants’ motion and dismissed this hybrid proceeding and action. The matter must be remitted to the Supreme Court, Suffolk County, for further proceedings on the merits of the petition/complaint.

ENG, P.J., DILLON, LOTT and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Gssime v County Ct. of Nassau County              2012-08167         2012 NY Slip Op 08006    “Decided on November 21, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

ANITA R. FLORIO, J.P.

JOHN M. LEVENTHAL

PLUMMER E. LOTT

JEFFREY A. COHEN, JJ.

 

2012-08167 ORDER & JUDGMENT

 

 

[*1]In the Matter of Said Gssime, petitioner,

 

v

 

County Court of Nassau County, et al., respondents.

 

 

 

 

 

Said Gssime, Coxsackie, N.Y., petitioner pro se.

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

(Susan Anspach of counsel), for

respondent County Court of Nassau

County.

Kathleen M. Rice, District Attorney, Mineola, N.Y. (Robert

A. Schwartz of counsel), respondent

pro se.

 

 

Proceeding pursuant to CPLR article 78, in effect, in the nature of mandamus to vacate an order of the County Court, Nassau County (Robbins, J.), entered August 1, 2012, in a criminal proceeding entitled People v Gssime, pending in the County Court, Nassau County, under Indictment No. 3119/97, which denied his motion pursuant to CPL 440.10, and application by the petitioner to prosecute the proceeding as a poor person.

ORDERED that the application for leave to prosecute the proceeding as a poor person 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 dismissed, without costs or disbursements.

This Court does not have subject matter jurisdiction to entertain this proceeding (see CPLR 506[b]; 7804[b]).

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Jefry H.            2011-11767         2012 NY Slip Op 08007    “Decided on November 21, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

RUTH C. BALKIN, J.P.

L. PRISCILLA HALL

PLUMMER E. LOTT

JEFFREY A. COHEN, JJ.

 

2011-11767

(Docket No. S-04359-09)

 

 

[*1]In the Matter of Jefry H. (Anonymous), appellant.

 

 

 

APPEAL by Jefry H., in a proceeding pursuant to Family Court Act article 7, as limited by his brief, from so much of an order of the Family Court (John M. Hunt, J.), dated December 6, 2011, and entered in Queens County, as denied that branch of his motion which was pursuant to Family Court Act § 1091 to be returned to foster care placement.

 

 

Steven Banks, New York, N.Y. (Tamara A. Steckler and Claire

V. Merkine of counsel), for appellant.

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

(Leonard Koerner and Pamela

Seider Dolgow of counsel), for nonparty

Administration for Children’s

Services.

Karen Freedman, New York, N.Y. (Betsy Kramer of counsel),

for amicus curiae Lawyers for

Children, Inc.

 

 

OPINION & ORDER

 

 

LOTT, J.In 2010, the Legislature amended the Family Court Act by adding section 1091, which allows “”former foster care youth”” between the ages of 18 and 21 who have been discharged from foster care due to their failure to consent to the continuation of placement to move to re-enter the foster care system (see L 2010, ch 342, § 8). At issue on appeal is whether Family Court Act § 1091 applies to individuals, such as the appellant Jefry H., who were placed in foster care after being adjudicated persons in need of supervision pursuant to article 7 of the Family Court Act. For the reasons which follow, we hold that Family Court Act § 1091 does so apply, and that the Family Court thus erred in concluding that Jefry H. is not eligible to return to foster care.

Factual and Procedural Background

Jefry H. was born on February 25, 1993. Shortly before Jefry’s 16th birthday, his mother filed a petition dated February 20, 2009, which alleged that Jefry was a person in need of supervision within the meaning of article 7 of the Family Court Act in that he was incorrigible, ungovernable, or habitually disobedient and beyond her lawful control (see Family Ct Act § 712[a]). In an order of fact-finding and disposition dated March 20, 2009, the Family Court adjudicated Jefry a person in need of supervision and placed him, pursuant to Family Court Act §§ 754(1)(c) and 756, in the custody of the Commissioner of Social Services of the City of New York (hereinafter the Commissioner) for placement at a residential treatment center for a period of 12 months. The order further provided that if Jefry remained in foster care, the Commissioner was obligated to file a petition for a permanency hearing no later than December 23, 2009, and that the permanency hearing was to be completed by February 23, 2010. In an order dated January 13, 2010, the Family Court [*2]granted the petition of the Administration for Children’s Services (hereinafter ACS) for the extension of Jefry’s placement and for a permanency hearing, extended Jefry’s placement to August 12, 2010, and approved a permanency plan providing for reunification of Jefry with his mother by August 12, 2010. In an order dated July 16, 2010, the Family Court granted a second petition by ACS for the extension of Jefry’s placement and for a permanency hearing, extended Jefry’s placement to February 25, 2011, his 18th birthday, and approved a permanency plan providing for reunification of Jefry with his mother by February 25, 2011. On February 25, 2011, Jefry was discharged to the care of his mother.

About nine months later, by notice of motion dated November 22, 2011, Jefry moved, inter alia, pursuant to Family Court Act § 1091 to be returned to foster care placement. In support of his motion, he submitted his own affidavit. In his affidavit, Jefry stated that he was placed in foster care through the Mercy First agency in a residential treatment center in Syosset. At the time of his discharge on his 18th birthday in February 2011, Jefry was employed full-time by a catering company, and planned to reside with his mother, continue working, and explore a GED program. However, in June 2011 Jefry’s hours at the catering company were cut due to a slowdown in business. Subsequently, he was unable to find a job despite looking for one and going on several interviews. According to Jefry, although he lived with his mother since leaving Mercy First, she was planning to give up her apartment and move to a rented room in a friend’s house on December 1, 2011, and Jefry would be unable to live with her in that room. Jefry’s mother also struggled with depression, and told Jefry that she might have to be admitted to an inpatient clinic for treatment if her depression did not improve. Jefry stated in his affidavit that he had no other place to live on a long-term basis. While Jefry’s aunt would allow him to sleep on her couch for a few days at a time, she would not allow him to live with her full-time because she did not have an extra room. Jefry further stated that he had kept in contact with the staff at Mercy First, and they told him that they would like to have him back on campus and that he would be accepted back if he returned to foster care. Finally, Jefry stated that he would like to return to Mercy First and finish high school there.

Although Jefry’s motion was made on notice to ACS, ACS submitted no papers in opposition or in relation thereto. In an order dated December 6, 2011, the Family Court denied Jefry’s motion, concluding that there was no “”clear indication that the Legislature intended for the provisions of Family Court Act § 1091 to apply to formerly placed PINS [persons in need of supervision] juveniles.”” Jefry appeals from so much of the order as denied that branch of his motion which was pursuant to Family Court Act § 1091 to permit his return to foster care. ACS has submitted a brief in support of Jefry’s appeal. Lawyers for Children, Inc., has also submitted an amicus curiae brief in support of Jefry’s appeal.

Analysis

Effective November 11, 2010, the Legislature created a new article 10-B of the Family Court Act entitled “”Former Foster Care Youth Re-Entry Proceedings”” (see L 2010, ch 342, § 8). Family Court Act § 1091, which is the sole section in the new article 10-B, is entitled “”Motion to return to foster care placement,”” and provides, in part:

“”A motion to return a former foster care youth under the age of twenty-one, who was discharged from foster care due to a failure to consent to continuation of placement, to the custody of the local commissioner of social services or other officer, board or department authorized to receive children as public charges, may be made by such former foster care youth, or by a local social services official upon the consent of such former foster care youth, if there is a compelling reason for such former foster care youth to return to foster care.””

 

Family Court Act § 1091(b) provides that a motion made pursuant to this section by a “”former foster care youth”” shall show, by affidavit or other evidence: (1) that the former foster care youth has no reasonable alternative to foster care; (2) that the former foster care youth consents to enrollment in and attendance at an appropriate educational or vocational program, unless evidence is submitted that such enrollment or attendance is unnecessary or inappropriate, given the particular circumstances of the youth; (3) that re-entry into foster care is in the best interests of the former foster care youth; and (4) that the applicable local social services district consents to the re-entry of [*3]such former foster care youth, or unreasonably refuses to consent to the re-entry of such foster care youth (see Family Ct Act § 1091[a], [b]).

Here, Jefry’s affidavit showed all of these things. Nevertheless, the Family Court denied the motion on the ground that there was no clear indication that the legislature intended for Family Court Act § 1091 to apply to individuals placed into foster care following adjudications as persons in need of supervision pursuant to Family Court Act article 7. We disagree with the Family Court’s determination in this regard.

“”In matters of statutory interpretation, our primary consideration is to discern and give effect to the Legislature’s intention . . . [T]he text of a provision is the clearest indicator of legislative intent and courts should construe unambiguous language to give effect to its plain meaning. Additionally, we should inquire into the spirit and purpose of the legislation, which requires examination of the statutory context of the provision as well as its legislative history. Finally, it is well settled that a statute must be construed as a whole and that its various sections must be considered with reference to one another”” (Matter of Albany Law School v New York State Off. of Mental Retardation & Dev. Disabilities, 19 NY3d 106, 120 [citations and internal quotation marks omitted]).

 

The “”fact that an act contains no exception or savings clause creates a strong presumption that the Legislature intended none”” (Matter of Pokoik v Deptartment of Health Servs., County of Suffolk, 72 NY2d 708, 712 [internal quotation marks omitted]).

Contrary to the Family Court’s determination, we conclude that Jefry was a “”former foster care youth”” within the meaning of Family Court Act § 1091. After his adjudication as a person in need of supervision pursuant to article 7 of the Family Court Act, Jefry was placed, pursuant to Family Court Act §§ 754(1)(c) and 756, in the Commissioner’s custody for a period of 12 months. While sections 754(1)(c) and 756 of the Family Court Act do not contain the phrase “”foster care,”” Family Court Act § 756-a, which concerns extensions of placement of individuals placed pursuant to Family Court Act §§ 754(1)(c) and 756, does. Specifically, Family Court Act § 756-a(d)(ii) requires a court considering a petition for the extension of placement of a child who has attained the age of 16 to consider, among other things, “”the services needed, if any, to assist the child to make the transition from foster care to independent living.”” In addition, Family Court Act § 756-a(f) provides that extensions of placements made pursuant to Family Court Act §§ 754(1)(c) and 756 may continue beyond the child’s 18th birthday, and until the child’s 21st birthday, provided that the child consents to such an extension. Moreover, the order of fact-finding and disposition adjudicating Jefry a person in need of supervision and placing him in the custody of the Commissioner refers to Jefry being placed in “”foster care,”” specifically providing that if Jefry remains in “”foster care”” the Commissioner was obligated to file a petition for a permanency hearing no later than December 23, 2009, and that the permanency hearing was to be completed by February 23, 2010. Finally, Social Services Law § 383-c(1), which concerns the guardianship and custody of children in foster care, defines a “”child in foster care”” for the purposes of that section as a “”child in the care and custody of an authorized agency pursuant to section three hundred eighty-four-a of this title or article three, seven or ten of the family court act”” (emphasis added).

The lynchpin of the Family Court’s determination seems to have been its belief that Family Court Act § 1091 was placed within article 10 of the Family Court Act, which article is entitled “”Child Protective Proceedings.”” Based on this belief, the Family Court apparently concluded that Family Court Act § 1091 is only applicable to individuals placed in foster care following child protective proceedings commenced pursuant to Family Court Act article 10, and not to individuals placed in foster care in other ways. However, Family Court Act § 1091 was not placed within article 10 of the Family Court Act, but, rather, was enacted as the sole section in a newly created article 10-B of the Family Court Act, which article is entitled “”Former Foster Care Youth Re-Entry Proceedings.”” Thus, nothing about the placement of section 1091 within the Family Court Act calls for restricting its applicability to youth who were placed in foster care pursuant to child protective proceedings. [*4]

Furthermore, nothing in the legislative history of Family Court Act § 1091 suggests that the legislature intended to restrict its applicability to youth who were placed in foster care following child protective proceedings. According to the Assembly Memorandum in Support of the bill that enacted Family Court Act § 1091:

“”Experience in Family Court has demonstrated, and a vast array of literature has documented, that all too often adolescents age out of foster care upon reaching age 18 or shortly thereafter wholly unprepared to function in society. Although the Family Court Act permits them to consent to continued foster care with its attendant supports and services until they reach the age of 21, many make precipitous decisions to show their independence and refuse to consent to remain in care even when they are desperately in need of assistance. Youth living in intact families are not faced with such decisions; they may leave home to attend college, but they do not abruptly terminate all connections with their families and often continue to receive financial and other aid. Youth leaving foster care, in contrast, often have no family to fall back on. For them, independent living’ may be akin to falling off a precipice. The permanency legislation enacted in 2005 contains salutatory [sic] provisions requiring social services agencies to ensure that such youth leave care with a significant connection to an adult willing to be a permanency resource.’ This requirement is helpful but often does not always fully meet the myriad needs of youth upon their discharge from foster care and during the period that immediately follows”” (Assembly Mem in Support, Bill Jacket, L 2010 ch 342 at 8).

 

The Assembly Memorandum further suggested that

“”by providing a means of preventing homelessness and crime among these youth, the savings in the cost of homeless shelters, prisons, hospitals and public assistance for these youth, not to mention the costs of crime to society, will more than outweigh any state or local share of the costs of reentry of youth into foster care”” (id. at 9).

 

These considerations apply with as much force to Jefry as they do to a youth who has been placed in foster care following child protective proceedings.

Finally, while it is true that the question of whether Family Court Act § 1091 applies to youth who have been placed in foster care following proceedings pursuant to Family Court Act article 7 is one of pure statutory reading and analysis, meaning that there is little basis to rely on any special competence or expertise of the administrative agency charged with its enforcement (see Matter of DaimlerChrysler Corp. v Spitzer, 7 NY3d 653, 660), we note that the New York State Office of Children & Family Services has interpreted Family Court Act § 1091 as applying to youth whose prior episode of care was initiated through juvenile delinquency or person in need of supervision proceedings under articles 3 and 7 of the Family Court Act, respectively (see New York State Office of Children & Family Services Administrative Directive 11-OCFS-ADM-02, at 3).

Conclusion

For the foregoing reasons, the order is reversed insofar as appealed from, on the law, and that branch of Jefry’s motion which was pursuant to Family Court Act § 1091 to be returned to foster care placement is granted.

BALKIN, J.P., HALL and COHEN, JJ., concur.

ORDERED that the order is reversed insofar as appealed from, on the law, without costs or disbursements, and that branch of the motion of Jefry H. which was pursuant to Family Court Act § 1091 to be returned to foster care placement is granted.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Hackett v Paluck          2012-01619         2012 NY Slip Op 08008    “Decided on November 21, 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.

 

2012-01619

(Docket No. F-07789-11/11A)

 

 

[*1]In the Matter of Barbara Hackett, respondent,

 

v

 

Michael Paluck, appellant. The Law Offices of Richard J. DaVolio, P.C., Patchogue, N.Y., for appellant. Anthony M. Bramante, Brooklyn, N.Y., for respondent.

 

 

 

 

 

DECISION & ORDER

In a child support proceeding pursuant to Family Court Act article 4, the father appeals from an amended order of the Family Court, Nassau County (Kent, J.), dated January 24, 2012, which denied his objections to an order of the same court (Watson, S.M.), dated September 6, 2011, which, inter alia, after a hearing, and upon the parties’ consent, directed the entry of a money judgment in favor of the mother and against him in the principal sum of $29,445.61.

ORDERED that the amended order dated January 24, 2012, is affirmed, with costs.

The Family Court properly denied the father’s objections to the order dated September 6, 2011, as that order was entered upon the consent of the parties (see Matter of Cabral v Cabral, 61 AD3d 863; Matter of Bien-Aime-Schneider v Schneider, 5 AD3d 763; Matter of Proulx v Ardito, 289 AD2d 581; Matter of Benerofe v Wechsler, 281 AD2d 476, 477).

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Andrea M. v New York State Off. of Children & Family Servs.  2011-07959         2012 NY Slip Op 08009    “Decided on November 21, 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.

 

2011-07959

(Index No. 4352/11)

 

 

[*1]In the Matter of Andrea M. (Anonymous), petitioner,

 

v

 

New York State Office of Children and Family Services, respondent.

 

 

 

 

 

Stephen D. Hans & Associates, P.C., Long Island City, N.Y.

(Alexander Potruch of counsel), for petitioner.

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

(Cecelia C. Chang and David

Lawrence III of counsel), for respondent.

 

 

DECISION & JUDGMENT

Proceeding pursuant to CPLR article 78 to review a determination of John Franklin Udochi, as designee of the Commissioner of the New York State Office of Children and Family Services, dated November 29, 2010, which, after a hearing, denied the petitioner’s application to amend and seal an indicated report maintained by the New York State Register of Child Abuse and Maltreatment.

ADJUDGED that the petition is granted, on the law, with costs, the determination is annulled, and the matter is remitted to the respondent to amend the indicated report to an unfounded report and to seal the amended report.

At an administrative hearing to determine whether a report of child abuse or maltreatment is substantiated, the allegations in the record must be established by a fair preponderance of the evidence (see Matter of Lee TT. v Dowling, 87 NY2d 699; Matter of Gell v Carrion, 81 AD3d 953; Matter of Washington v State of N.Y. Off. of Children & Family Servs., 78 AD3d 1066, 1067). Judicial review of a determination that such a report has been substantiated is limited to whether the determination is supported by substantial evidence in the record (see Matter of Gell v Carrion, 81 AD3d 953; Matter of Blythe v Carrion, 63 AD3d 1059). Substantial evidence has been defined as such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact (see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180; Matter of Barnes v New York State Off. of Children Family Servs., 67 AD3d 787; Matter of Joseph v Johnson, 27 AD3d 563).

The determination that the petitioner maltreated her stepdaughter and her infant son was not supported by substantial evidence. The record shows that the stepdaughter, while engaged in an angry and protracted argument with her father, began beating the petitioner, who was holding her infant son and was attempting to leave the room, and the petitioner struck back in order to defend herself and her infant son. Under the circumstances of this case, the substantial evidence standard [*2]was not satisfied (see Matter of Senande v Carrion, 83 AD3d 851, 852; Matter of Corey Mc. [Tanya Mc.], 67 AD3d 1015, 1016; Matter of Chanika B., 60 AD3d 671, 672).

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Francisco M.-G. v Marcelina M.-G.      2011-11093         2012 NY Slip Op 08010    “Decided on November 21, 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.

 

2011-11093

(Docket Nos. G-17417-09, G-17419-09)

 

 

[*1]In the Matter of Francisco M.-G. (Anonymous), petitioner-appellant,

 

v

 

Marcelina M.-G. (Anonymous), respondent-appellant, et al., respondent; Jason J. M.-G. (Anonymous), nonparty-appellant. Stephen Kolnik, Yonkers, N.Y., for petitioner-appellant.

 

 

 

 

 

Helene Migdon Greenberg, Elmsford, N.Y., for respondent-

appellant.

Paul Hastings LLP, New York, N.Y. (Kevin Broughel of

counsel), for nonparty-appellant.

 

 

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 6 for the appointment of the petitioner, Francisco M.-G., as the guardian of Jason J. M.-G., a person under 21 years of age, the petitioner appeals, and Jason J. M.-G. and Marcelina M.-G. each separately appeal, from an order of the Family Court, Westchester County (Klein, J.), entered November 4, 2011, which, without a hearing, denied the motion of Jason J. M.-G. for the issuance of an order declaring that he is dependent on the Family Court and making specific findings that he is unmarried and under 21 years of age, that reunification with one or both of his parents is not viable due to parental abuse, neglect, or abandonment, and that it would not be in his best interest to be returned to his previous country of nationality or last habitual residence, so as to enable him to petition the United States Citizenship and Immigration Services for special immigrant juvenile status pursuant to 8 USC § 1101(a)(27)(J), and, sua sponte, dismissed the petition for the appointment of the petitioner as the guardian of Jason J. M.-G.

ORDERED that the appeal by Marcelina M.-G. is dismissed, without costs or disbursements, as she is not aggrieved by the order appealed from (see CPLR 5511); and it is further,

ORDERED that the order is reversed on the appeals by the petitioner and Jason J. M.-G., on the law, without costs or disbursements, the guardianship petition is reinstated, and the matter is remitted to the Family Court, Westchester County, for a hearing before a different Judge and new determination thereafter on the petition for the appointment of the petitioner as the guardian of Jason J. M.-G., and, thereafter, if warranted, a hearing and a new determination on the motion for the issuance of an order making the requisite declaration and specific findings. [*2]

Jason J. M.-G. is a native of Honduras, is under 21 years of age, and is unmarried. He and his older sister entered the United States in 2008 and, since that time, he has been living with his uncle, Francisco M.-G. Although Jason visits regularly with his mother, who is also in the United States, she allegedly is unable to financially support him, and does not function as his caretaker. Jason has never known his father, who abandoned him at birth.

On December 17, 2009, Francisco filed a petition, seeking to be appointed Jason’s guardian. In conjunction with the petition, Jason moved for the issuance of an order making the requisite declaration and specific findings to enable him to apply to the United States Citizenship and Immigration Services for special immigrant juvenile status pursuant to 8 USC § 1101(a)(27)(J). The petition and motion were unopposed. The Family Court, sua sponte, dismissed the petition without conducting a hearing, and thereafter denied the motion without conducting a hearing.

The Family Court erred in dismissing the guardianship petition without conducting a hearing. When considering guardianship appointments, the infant’s best interest is paramount (see SCPA 1707[1]; Matter of Stuart, 280 NY 245, 250; Matter of Ashley W. [Verdele F.], 85 AD3d 807; Matter of Trudy-Ann W. v Joan W., 73 AD3d 793, 794). The fact that the mother lives in the United States and maintains contact with Jason is not an automatic bar to the granting of Francisco’s petition, as it has been alleged that the mother voluntarily relinquished control of Jason, does not support him financially, and has, at certain times, shown little concern for his safety and well-being (see Matter of Garrett D. v Kevin L., 56 AD3d 1183; Matter of Dellolio v Tracy, 35 AD3d 737; Matter of Vincent A.B. v Karen T., 30 AD3d 1100, 1101; Matter of Ruggieri v Bryan, 23 AD3d 991, 992).

Accordingly, the matter must be remitted to the Family Court, Westchester County, for a hearing and new determination on the guardianship petition. A hearing on Jason’s motion for an order of special findings, as required by Federal law, should be held thereafter, if warranted, as Jason may be able to satisfy the prerequisites for obtaining such an order based on the new determination regarding guardianship (see 8 USC § 1101[a][27][J][i]; Matter of Ashley W. [Verdele F.], 85 AD3d 807; Matter of Jisun L. v Young Sun P., 75 AD3d 510, 512; Matter of Trudy-Ann W. v Joan W., 73 AD3d at 795). In light of certain remarks made by the Family Court Judge, indicating that he was predisposed to deny motions, such as Jason’s, for an order making such special findings, we deem it appropriate that the matter be heard and determined by a different Judge.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Machat            2011-09349         2012 NY Slip Op 08011    “Decided on November 21, 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.

 

2011-09349

 

 

[*1]In the Matter of Steven E. Machat, an attorney and counselor-at-law. Grievance Committee for the Tenth Judicial District, petitioner; Steven E. Machat, respondent. (Attorney Registration No. 3993045)

 

 

 

Application by the Grievance Committee for the Tenth Judicial District pursuant to 22 NYCRR 691.3 to impose discipline on Steven E. Machat, based upon disciplinary action taken against him by the Supreme Court of California. The respondent was admitted to the New York Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on November 15, 1978. Robert A. Green, Hauppauge, N.Y. (Daniel M. Mitola of counsel), for petitioner.

 

 

OPINION & ORDER

PER CURIAM.The instant application is predicated upon an order of the Supreme Court of California filed April 5, 2002, which, following the approval of a Stipulation of Facts, Conclusions of Law, and Disposition (hereinafter the Stipulation) by the California State Bar Court (hereinafter the SBC) on November 15, 2001, directed, inter alia, that the respondent be placed on probation for a period of three years on condition that he be actually suspended for a period of two years and until he showed satisfactory proof to the SBC of his rehabilitation pursuant to standard 1.4(c)(ii) of the California Standards for Attorney Sanctions for Professional Misconduct; made restitution in the sums of $17,500 plus 10% interest from August 7, 1998, and $20,000, respectively; furnished satisfactory proof thereof to the Probation Unit of the State Bar Office of Trial Counsel (hereinafter the SBO); and took and passed the Multistate Professional Responsibility Exam during the period of his actual suspension. The Stipulation pertained to California State Bar Court Case Nos. 98-O-03329 and 99-O-10669.

In Case No. 98-O-03329, it was found that the respondent willfully failed to maintain client funds in a trust account in violation of rule 4-100(A) of the California Rules of Professional Conduct. In case No. 99-O-10669, it was found that the respondent engaged in grossly negligent acts, in violation of California Business and Professions Code § 6109; failed to maintain, in trust, the sum of $152,743.51, in willful violation of rule 4-100(A) of the California Rules of Professional Conduct; willfully failed to promptly notify a client that he had received funds on its behalf, in violation of rule 4-100(B) of the California Rules of Professional Conduct; and willfully failed to provide a client with an accounting for funds, which he claimed as fees and disbursed to himself, in violation of rule 4-100(B)(3) of the California Rules of Professional Conduct.

A notice pursuant to 22 NYCRR 691.3 was served, via substituted service, upon the [*2]respondent at his registered address in the United Kingdom, on January 18, 2012.

By letter dated February 8, 2012, the respondent explained that, in 2002, “”I agreed to an active suspension of my California Bar (sic) for two years. Never was this intended to be used as a sword to pierce my ability to earn money. I am very proud of my legal license and will fight to protect my name and reputation.”” He added that, at the time in question, “”I was the most vulnerable that I have ever been.”” According to the respondent, his then-wife and oldest child were continually hospitalized with life-threatening illnesses. The respondent alleged that he was “”unprepared and unable emotionally to fight.”” The respondent thereafter complied with the California State Bar requirements for reinstatement of his license and passed the professional responsibility test in the spring of 2004. However, he asserted that he “”didn’t reinstate”” his license in California because he no longer lived there.

The respondent learned of New York’s interest in the California proceedings in or about 2007 and again last Fall. In his letter dated February 8, 2012, he requested an adjournment or extension of time to secure counsel, stating that, in his opinion, it would be neither fair nor equitable for New York to pursue this matter any further.

By letter dated February 10, 2012, the respondent’s time to serve a verified statement, pursuant to 22 NYCRR 691.3(b), was enlarged until March 15, 2012.

Thereafter, the respondent requested an additional enlargement of his time to respond, to June 2012. By letter dated March 14, 2012, the respondent’s time to respond was enlarged until March 30, 2012.

A further request for additional time to respond was rejected on or about April 2, 2012, and the respondent was advised that he would have to make a motion. No such motion was made.

Inasmuch as the respondent was put on notice that this Court would “”impose such discipline or take such disciplinary action as it deems appropriate”” (22 NYCRR 691.3[b]) in the absence of a verified statement setting forth any of the three defenses to the imposition of discipline enumerated in 22 NYCRR 691.3(c), and no verified statement having been received to date, there is no impediment to the imposition of reciprocal discipline.

Under the totality of the circumstances, the respondent is suspended from the practice of law in New York for a period of two years.

ENG, P.J., MASTRO, RIVERA, SKELOS and HALL, JJ., concur.

ORDERED that the application of the Grievance Committee for the Tenth Judicial District to impose reciprocal discipline is granted; and it is further,

ORDERED that pursuant to 22 NYCRR 691.3, the respondent, Steven E. Machat, is suspended from the practice of law for a period of two years, commencing December 24, 2012, and continuing until further order of this Court. The respondent shall not apply for reinstatement earlier than June 24, 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 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, Steven E. Machat, 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, Steven E. Machat, 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 Teriyana A. Mc.            2012-01594         2012 NY Slip Op 08012    “Decided on November 21, 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.

 

2012-01594

(Docket No. D-24743/10)

 

 

[*1]In the Matter of Teriyana A. Mc. (Anonymous), appellant.

 

 

 

 

 

Steven Banks, New York, N.Y. (Tamara A. Steckler and Patricia

Colella of counsel), for appellant.

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

(Pamela Seider Dolgow and Dona B.

Morris of counsel), for respondent.

 

 

DECISION & ORDER

In a juvenile delinquency proceeding pursuant to Family Court Act article 3, Teriyana A. Mc. appeals from an order of disposition of the Family Court, Queens County (Lubow, J.), dated January 17, 2012, which, upon a fact-finding order of the same court dated December 6, 2011, made after a hearing, finding that she committed acts which, if committed by an adult, would have constituted the crime of attempted assault in the third degree, adjudged her to be a juvenile delinquent and placed her on probation for a period of 12 months.

ORDERED that the order of disposition is reversed, on the facts and in the exercise of discretion, without costs or disbursements, and the matter is remitted to the Family Court, Queens County, for an adjournment of the proceeding in contemplation of dismissal, on the condition that the probation department monitor the appellant’s school attendance during the period of the adjournment.

Under the circumstances of this case, the Family Court improvidently exercised its discretion in adjudicating the appellant a juvenile delinquent and placing her on probation for a period of 12 months. An adjournment in contemplation of dismissal was the “”least restrictive available alternative”” (Family Ct Act § 352.2[2][a]), and would have adequately served the needs of the appellant and society (see Matter of Tyvan B., 84 AD3d 462, 462).

The appellant, who was 15 years old at the time of the underlying offense, had no record of ever having previously committed an act which, if committed by an adult, would constitute a criminal offense. There is no indication that the appellant ever used drugs or alcohol, or that she was affiliated with a gang. Moreover, under the terms of an adjournment in contemplation of dismissal, the Family Court could have required the probation department to monitor the appellant’s school attendance (see Matter of Osriel L., 94 AD3d 523; Matter of Justin Charles H., 9 AD3d 316, 317).

Accordingly, we reverse the order of disposition and remit the matter to the Family Court, Queens County, for an adjournment of the proceeding in contemplation of dismissal, on the [*2]condition that the probation department monitor the appellant’s school attendance during the period of the adjournment.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of McNair v Fenyn            2011-11095         2012 NY Slip Op 08013    “Decided on November 21, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

RANDALL T. ENG, P.J.

MARK C. DILLON

PLUMMER E. LOTT

JEFFREY A. COHEN, JJ.

 

2011-11095

(Docket No. F-02862-10)

 

 

[*1]In the Matter of Tracy McNair, respondent,

 

v

 

Daniel J. Fenyn, appellant.

 

 

 

 

 

Stephen I. Silberfein, P.C. (Mischel & Horn, P.C., New York,

N.Y. [Scott T. Horn], of counsel), for appellant.

Peter F. Wojnar, Tarrytown, N.Y., for respondent.

 

 

DECISION & ORDER

In a child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Westchester County (Klein, J.), entered October 25, 2011, which denied his objections to an order of the same court (Furman, S.M.) entered May 5, 2011, which, after a hearing, fixed the father’s child support arrears in the sum of $34,011.47 and directed that he make payments toward support arrears in six bimonthly sums of $5,668.57.

ORDERED that the order entered October 25, 2011, is modified, on the facts and in the exercise of discretion, (1) by deleting the provision thereof denying the father’s objection to so much of the order entered May 5, 2011, as fixed his child support arrears at $34,011.47, and substituting therefor a provision granting that objection to the extent of vacating the provision of the order entered May 5, 2011, fixing the child support arrears at $34,011.47, and thereupon, fixing the child support arrears at $27,881.70, and (2) by deleting the provision thereof denying the father’s objection to so much of the order entered May 5, 2011, as directed him to make payments toward support arrears in six bimonthly sums of $5,668.57, and substituting therefor provisions granting that objection, vacating the provision of the order entered May 5, 2011, directing him to make payments toward support arrears in six bimonthly sums of $5,668.57, and directing him to make monthly payments of $774.49 until the child support arrears of $27,881.70 are fully paid; as so modified, the order entered October 25, 2011, is affirmed, without costs or disbursements.

The father’s child support obligation required him to pay his pro rata share of tuition and unreimbursed medical, optical, and dental expenses. When child support obligations require payments to a third party, such as a medical provider, the party seeking reimbursement must show that he or she actually paid the sums for which reimbursement is sought (see Matter of Uriarte v Ippolito, 54 AD3d 379; Matter of Lerner v Relkin, 27 AD3d 745, 746). The Family Court should have included in the calculation of tuition and unreimbursed medical, optical, and dental expenses only those sums for which the mother submitted proof of actual payment to the third-party provider. Thus, the father’s child support arrears must be reduced to the sum of $27,881.70. In light of the circumstances of this case, the Family Court improvidently exercised its discretion in directing the father to satisfy his substantial child support arrears in only six bimonthly payments. Therefore, in [*2]the exercise of our discretion, we direct the father to make monthly payments of $774.49 until the child support arrears of $27,881.70 are fully paid.

The father’s remaining contentions are without merit.

ENG, P.J., DILLON, LOTT and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Muhammadu v Barcia               2011-11760         2012 NY Slip Op 08014    “Decided on November 21, 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.

 

2011-11760

(Docket No. O-16391/11)

 

 

[*1]In the Matter of Hanifya Muhammadu, respondent,

 

v

 

Troy Barcia, appellant. David Laniado, Cedarhurst, N.Y., for appellant. Joan L. Beranbaum, New York, N.Y. (Stefanie A. Miller of counsel), for respondent.

 

 

 

 

 

DECISION & ORDER

In a family offense proceeding pursuant to Family Court Act article 8, Troy Barcia appeals, as limited by his brief, from so much of an order of the Family Court, Queens County (Lubow, J.), dated November 22, 2011, as denied that branch of his motion which was pursuant to CPLR 5015(a)(1) to vacate a final order of protection of the same court dated October 5, 2011, entered upon his default in appearing for a hearing.

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 Family Ct Act § 1112[a]); and it is further,

ORDERED that the order is reversed insofar as appealed from, on the facts and in the exercise of discretion, without costs or disbursements, the motion pursuant to CPLR 5015(a)(1) to vacate the final order of protection dated October 5, 2011, is granted, the order of protection dated October 5, 2011, is vacated, a temporary order of protection of the Family Court, Queens County, dated September 16, 2011, is reinstated, and the matter is remitted to the Family Court, Queens County, for further proceedings on the petition.

In a family offense petition dated August 8, 2011, the petitioner alleged that the appellant committed family offenses against her, including, inter alia, attempted assault, assault in the second or third degree, aggravated harassment in the second degree, harassment in the first or second degree, menacing, sexual abuse, and forcible touching. A temporary order of protection was issued that same day by a Court Attorney Referee, to remain in effect until and including August 15, 2011. On August 15, 2011, the parties appeared before the Court Attorney Referee, and issue was joined, the appellant requested court-appointed counsel, and the temporary order of protection was continued. On August 18, 2011, following a conference, the Family Court assigned both parties counsel and continued the temporary order of protection. On September 16, 2011, both parties again appeared, and the petitioner arrived with retained counsel, relieving her court-appointed attorney. The Family Court agreed to schedule a trial and there was a discussion as to whether to set the trial for October 5 or October 7, 2011. The trial was finally scheduled for October 5, 2011, and the Family Court continued all temporary orders.

On October 5, 2011, the appellant failed to appear. However, his court-appointed counsel did appear, denied knowing why his client had not appeared, explaining that he had spoken [*2]with the appellant a mere two days before the hearing, and requested an adjournment. The Family Court, without conducting any inquiry to determine why the appellant was not present, proceeded to conduct a hearing on the petition, and issued a final order of protection.

The appellant moved, inter alia, to vacate the final order of protection issued upon his default, arguing that he misunderstood when the hearing was to be held and thought he was to appear on October 7, 2011, instead of October 5, 2011. The appellant also denied the allegations contained in the petition and contended that they had been fabricated by the petitioner. The Family Court denied the appellant’s motion.

The Family Court improvidently exercised its discretion in denying that branch of the appellant’s motion which was to vacate the final order of protection entered upon his default. The appellant moved to vacate the final order of protection shortly after it was issued, and his explanation that he had made a mistake as to the court appearance date was reasonable (see Matter of Dos Santos v Dos Santos, 76 AD3d 1013, 1015; Liotti v Peace, 15 AD3d 452, 453; Matter of Kindra B., 296 AD2d 456, 458). It is also clear that the appellant’s default was not willful (see Ito v Ito, 73 AD3d 983; Matter of Santiago v Santiago, 275 AD2d 429, 430), and his affidavit in support of his motion, inter alia, to vacate the final order of protection was sufficient to demonstrate the existence of a potentially meritorious defense to the petition, and to the issuance of a final order of protection effectively excluding him from the parties’ shared residence.

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

Accordingly, the Family Court should have granted that branch of the appellant’s motion which was to vacate the final order of protection, and we remit the matter to the Family Court, Queens County, for further proceedings on the petition.

DILLON, J.P., AUSTIN, SGROI and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Myers v Anderson      2011-10027         2012 NY Slip Op 08015    “Decided on November 21, 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.

 

2011-10027

(Docket Nos. V-15436-09, V-17147-09, V-05287-10/10A)

 

 

[*1]In the Matter of Major Myers, appellant,

 

v

 

Beckie Anderson, respondent. (Proceeding No. 1)

 

 

 

In the Matter of Beckie Anderson, respondent,

 

v

 

Major Myers, appellant. (Proceeding Nos. 2 & 3)

 

 

 

 

 

Christopher S. Weddle, White Plains, N.Y., for appellant.

Lisa Goldman, White Plains, N.Y., for respondent.

David J. Peck, Harrison, N.Y., attorney for child.

 

 

DECISION & ORDER

In related custody and visitation proceedings pursuant to Family Court Act article 6, the father appeals, as limited by his brief, from so much of an order of the Family Court, Westchester County (Greenwald, J.), dated September 14, 2011, as, after a hearing, in effect, granted that branch of the mother’s petition which was to modify an order of custody and visitation of the same court dated September 16, 2003, so as to award him visitation with the subject child for only two hours every other weekend in a public place.

ORDERED that the order dated September 14, 2011, is affirmed insofar as appealed from, without costs or disbursements.

“”Modification of an existing custody or visitation arrangement is permissible only upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the continued best interests and welfare of the child”” (Matter of Mazzola v Lee, 76 AD3d 531, 531 [citation and internal quotation marks omitted]; see Matter of Boggio v Boggio, 96 AD3d 834, 835). “” [T]he determination of visitation is within the sound discretion of the hearing court based upon the best interests of the child, and its determination will not be set aside unless it lacks a substantial basis in the record'”” (Matter of McLean v Simpson, 82 AD3d 1101, 1101, quoting Matter of Kachelhofer v Wasiak, 10 AD3d 366, 366; see Matter of Smith v Smith, 92 AD3d 791, 792). Generally, visitation should be decided after a full evidentiary hearing to determine the best interests of the children. However, a hearing is not necessary where the court possesses adequate relevant information to make an informed determination of the children’s best interests (see Matter of Ciara B. [Edward T.-Alba B.], 96 AD3d 833, 834; Matter of Johnson v Alaji, 74 AD3d 1202, 1202; Matter of Riemma v Cascone, 74 AD3d 1082, 1082-1083; Matter of Hom v Zullo, 6 AD3d 536, 536).

Here, the Family Court’s determination, in effect, granting that branch of the mother’s petition which was to modify an order of custody and visitation so as to award the father visitation with the subject child for only two hours every other weekend in a public place, with further visits [*2]upon the child’s consent, was supported by a sound and substantial basis in the record. Contrary to the father’s contention, the record reveals that he was given the opportunity to address the court at length during the hearing. Further, the Family Court was fully familiar with the relevant facts after presiding over several appearances of the parties, conducting an in camera interview with the subject child, and ascertaining the position of the attorney for the child (see Rosenberg v Rosenberg, 60 AD3d 658, 658; Matter of Potente v Wasilewski, 51 AD3d 675, 676; Matter of Perez v Sepulveda, 51 AD3d 673, 673-674).

Moreover, contrary to the father’s contention, the Family Court accorded the subject child’s wishes the proper weight (see Matter of Boggio v Boggio, 96 AD3d at 835; Matter of Mohabir v Singh, 78 AD3d 1056, 1057; Matter of Mera v Rodriguez, 73 AD3d 1069, 1070; Matter of Jennifer WW., 274 AD2d 778, 779). In addition to the in camera interview with the then 13-year-old child, the Family Court considered, inter alia, the other testimony and statements made at the hearing. “”While the authority of the Appellate Division in custody matters is as broad as that of the hearing court, deference should be accorded to the credibility determinations of the hearing court, which saw and heard the witnesesses, and the hearing court’s custody determination should not be set aside unless it lacks a sound and substantial basis in the record”” (Matter of Kimberly A.H. v Perez, 99 AD3d 903, *1-2; see Matter of Nava v Kinsler, 85 AD3d 1186, 1186-1187; Matter of Adams v Perryman, 68 AD3d 860, 861). We see no basis for disturbing the determination here.

To the extent that the father argues that the Family Court failed to determine his violation petition against the mother, the status of that petition cannot be discerned from the record.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Oziel 2012-01922         2012 NY Slip Op 08016    “Decided on November 21, 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.

 

2012-01922

 

 

[*1]In the Matter of Robert I. Oziel, admitted as Robert Israel Oziel, a suspended attorney. Grievance Committee for the Tenth Judicial District, petitioner; Robert I. Oziel, respondent. (Attorney Registration No. 1310457)

 

 

 

Motion by the Grievance Committee for the Tenth Judicial District to strike the respondent’s name from the roll of attorneys and counselors-at-law, pursuant to Judiciary Law § 90(4), based upon his felony conviction. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on June 17, 1970, under the name Robert Israel Oziel. By opinion and order of this Court dated August 4, 2009, the respondent was suspended from the practice of law for a period of five years (see Matter of Oziel, 66 AD3d 145).

 

 

Robert A. Green, Hauppauge, N.Y. (Daniel M. Mitola, of

counsel), for petitioner.

 

 

OPINION & ORDER

PER CURIAM.On January 26, 2012, in the Supreme Court, Nassau County (Kase, J.), the respondent pleaded guilty to three counts of grand larceny in the third degree, a class D felony, in violation of Penal Law § 155.35. He was sentenced that day to five years’ probation and restitution in the amount of $35,000.

The Grievance Committee for the Tenth Judicial District (hereinafter the Grievance Committee) now moves to strike the respondent’s name from the roll of attorneys and counselors-at-law pursuant to Judiciary Law § 90(4)(b) based upon his felony conviction. The respondent has submitted no papers in response to the Grievance Committee’s motion.

By virtue of his felony conviction, the respondent ceased to be an attorney and counselor-at-law pursuant to Judiciary Law § 90(4), and was automatically disbarred on January 26, 2012. Accordingly, the Grievance Committee’s motion to strike the respondent’s name from the roll of attorneys and counselors-at-law is granted, effective January 26, 2012, and the respondent’s name is stricken from the roll of attorneys based on his disbarment.

ENG, P.J., MASTRO, RIVERA, SKELOS and DILLON, JJ., concur.

ORDERED that pursuant to Judiciary Law § 90(4)(a), the respondent, Robert I Oziel, admitted as Robert Israel Oziel, is disbarred, effective January 26, 2012, and his name is stricken from the roll of attorneys and counselors-at-law, pursuant to Judiciary Law § 90(4)(b); and it is further,

ORDERED that the respondent, Robert I. Oziel, admitted as Robert Israel Oziel, shall [*2]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, Robert I. Oziel, admitted as Robert Israel Oziel, is commanded to continue 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 its is further,

ORDERED that if the respondent, Robert I. Oziel, admitted as Robert Israel Oziel, 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 Panico v Panico            2011-07937         2012 NY Slip Op 08017    “Decided on November 21, 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.

 

2011-07937

(Docket No. O-8785/11) (Docket No. O-8771/11)

 

 

[*1]In the Matter of Cindy Panico, respondent,

 

v

 

Cory Panico, appellant. (Proceeding No. 1) 2011-10784 In the Matter of Albert Panico, respondent, Cory Panico, appellant. (Proceeding No. 2)

 

 

 

 

 

Larry S. Bachner, Jamaica, N.Y., for appellant.

 

 

DECISION & ORDER

In two related family offense proceedings pursuant to Family Court Act article 8, Cory Panico appeals from (1) an order of protection of the Family Court, Queens County (Bogacz, J.), dated August 26, 2011, entered in Proceeding No. 1, which, upon a finding that he had committed the family offenses of harassment in the first degree and assault in the third degree against Cindy Panico, made after a hearing, directed him, inter alia, to stay away from Cindy Panico until and including July 28, 2013, and (2) an order of protection of the same court, also dated August 26, 2011, entered in Proceeding No. 2, which, upon a finding that he had committed the family offense of attempted assault in the third degree against Albert Panico, made after the same hearing, directed him, inter alia, to stay away from Albert Panico until and including July 28, 2013.

ORDERED that the orders of protection are affirmed, without costs or disbursements.

“”The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court”” (Matter of Sblendorio v D’Agostino, 60 AD3d 773, 773; see Matter of Asgedom v Asgedom, 51 AD3d 787, 787-788; Matter of Kraus v Kraus, 26 AD3d 494, 495). Here, the Family Court failed to state on the record the facts which it deemed essential to its determinations to grant the petitions for orders of protection (see CPLR 4213[b]; Matter of Jose L. I., 46 NY2d 1024, 1025-1026; Matter of Sperling v Sperling, 96 AD3d 1067; Matter of Drury v Drury, 90 AD3d 754, 755). However, remittal to the Family Court is not necessary because the record is sufficient for this Court to conduct an independent review of the evidence (see Matter of Jose L. I., 46 NY2d at 1026; Matter of Sperling v Sperling, 96 AD3d at 1067; Matter of Destiny H. [Valerie B.], 83 AD3d 939). Upon such review, we conclude that the evidence adduced at the [*2]hearing established, by a preponderance of the evidence, that the appellant committed the family offenses of harassment in the first degree and assault in the third degree against Cindy Panico, and the family offense of attempted assault in the third degree against Albert Panico, warranting the issuance of orders of protection (see Family Ct Act §§ 812[1]; 832; Penal Law §§ 110.00; 120.00; 240.25).

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Rjeoutski v Mavrina   2011-11643         2012 NY Slip Op 08018    “Decided on November 21, 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.

 

2011-11643

(Docket No. F-3469-08/10C)

 

 

[*1]In the Matter of Valentin Rjeoutski, respondent,

 

v

 

Irina Mavrina, appellant.

 

 

 

 

 

Michael G. Paul, New City, N.Y., for appellant.

 

 

DECISION & ORDER

In a child support proceeding pursuant to Family Court Act article 4, the mother appeals from an order of the Family Court, Rockland County (Edwards, J.), entered November 14, 2011, which, upon an order of the same court (Miklitsch, S.M.), dated July 28, 2011, made after a hearing, inter alia, finding that she willfully violated a child support order dated April 6, 2009, confirmed the finding of willfulness and sentenced her to a term of 180 days in the Rockland County Jail unless she purged her contempt by paying the sum of $1,690.

ORDERED that the order entered November 14, 2011, is modified, on the facts and in the exercise of discretion, by deleting the provision thereof sentencing the mother to a term of 180 days in the Rockland County Jail, and substituting therefor a provision sentencing her to a term of 30 days in the Rockland County Jail; as so modified, the order is affirmed, without costs or disbursements, and the matter is remitted to the Family Court, Rockland County, for the issuance of an order of commitment in accordance herewith.

Upon the establishment of a prima facie case that the mother willfully violated a child support order dated April 6, 2009 (see Family Court Act § 454[3][a]; Matter of Powers v Powers, 86 NY2d 63, 69; Matter of Kainth v Kainth, 36 AD3d 915, 916; Matter of Teller v Tubbs, 34 AD3d 593, 593), the burden then shifted to the mother to offer competent, credible evidence of her inability to comply with that order (see Matter of Powers v Powers, 86 NY2d at 69; Matter of Kainth v Kainth, 36 AD3d at 916; Matter of Teller v Tubbs, 34 AD3d at 593-594). Contrary to the mother’s contention, the Support Magistrate properly determined that she failed to meet that burden (see Matter of Teller v Tubbs, 34 AD3d at 593-594; Matter of Fallon v Fallon, 286 AD2d 389, 389; Matter of Reed v Reed, 240 AD2d 951, 952; cf. Matter of Kainth v Kainth, 36 AD3d at 916). Accordingly, the Family Court properly confirmed the Support Magistrate’s finding that the mother willfully violated the child support order dated April 6, 2009.

However, we agree with the mother that the sentence of a term of 180 days in jail imposed by the Family Court was excessive, and that, under the circumstances of this case, a shorter term of commitment is more appropriate (see Matter of Wolski v Carlson, 309 AD2d 759, 759; cf. Matter of Aron v Aron, 140 AD2d 697, 698).

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Romero v Ramirez      2011-11257         2012 NY Slip Op 08019    “Decided on November 21, 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.

 

2011-11257

(Docket No. V-38318-10)

 

 

[*1]In the Matter of Fernando Romero, respondent,

 

v

 

Yheizzi Ramirez, appellant. Jose A. Muniz, New York, N.Y., for appellant.

 

 

 

 

 

The Law Offices of Stephen I. Silberfein, P.C. (Mischel & Horn,

P.C., New York, N.Y. [Scott T. Horn], of counsel), for respondent.

 

 

DECISION & ORDER

In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Kings County (Joseph, J.), dated November 3, 2011, which, upon her default in answering or appearing, and, in effect, upon the denial of her motion to dismiss the petition for lack of personal jurisdiction, granted the father’s petition for custody of the parties’ child.

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

“”[N]otwithstanding the prohibition set forth in CPLR 5511 against an appeal from an order or judgment entered upon the default of the appealing party, the appeal from the order brings up for review those matters which were the subject of contest’ before the [Family] Court”” (Tun v Aw, 10 AD3d 651, 652, quoting James v Powell, 19 NY2d 249, 256 n 3; see Matter of Branch v Cole-Lacy, 96 AD3d 741, 742). Since the issue of whether the Family Court had personal jurisdiction over the mother was the subject of contest, it is brought up for review on this appeal (see James v Powell, 19 NY2d at 256 n 3).

The mother contends that service of process upon her in Ecuador had to be made pursuant to the procedures set forth in the Inter-American Convention on Letters Rogatory (see 28 USC § 1781). Contrary to the mother’s contention, however, “”the Inter-American Convention permits alternate methods of service and . . . its procedures are not the exclusive means of service of process on defendants residing in a signatory nation”” (Laino v Cuprum S.A. de C.V., 235 AD2d 25, 29). Accordingly, personal service upon the mother pursuant to state statute was acceptable (see id.; see also Morgenthau v Avion Resources Ltd., 11 NY3d 383, 391).

The mother argues, alternatively, that the Family Court was required to hold a hearing on the issue of service. “” Generally, a process server’s affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service'”” (Engel v Boymelgreen, 80 AD3d 653, 654, quoting Washington Mut. Bank v Holt, 71 AD3d 670, 670; see Tikvah Enters., LLC v Neuman, 80 AD3d 748, 749). “”Although a [party’s] sworn denial of receipt of service generally rebuts the presumption of proper service established by the [*2]process server’s affidavit and necessitates an evidentiary hearing, no hearing is required where the [party] fails to swear to specific facts to rebut the statements in the process server’s affidavits'”” (Scarano v Scarano, 63 AD3d 716, quoting Simonds v Grobman, 277 AD2d 369, 370; see Tikvah Enters., LLC v Neuman, 80 AD3d at 749). Here, the mother’s bare denial of service was insufficient to rebut the prima facie proof of proper service established by the process server’s affidavit (see Tikvah Enters., LLC v Neuman, 80 AD3d at 749; Scarano v Scarano, 63 AD3d at 716). Accordingly, the Family Court properly determined that no hearing was warranted (see Tikvah Enters., LLC v Neuman, 80 AD3d at 749).

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of State of New York v Geoffrey P.           2011-03127         2012 NY Slip Op 08020    “Decided on November 21, 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.

 

2011-03127

(Index No. 2021/08)

 

 

[*1]In the Matter of State of New York, respondent,

 

v

 

Geoffrey P. (Anonymous), appellant.

 

 

 

 

 

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

Scott M. Wells, and Dennis B. Feld of counsel), for appellant.

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

(Richard Dearing and Brian A. Sutherland of

counsel), for respondent.

 

 

DECISION & ORDER

In a proceeding pursuant to Mental Hygiene Law article 10 for the civil management of Geoffrey P., a sex offender allegedly requiring civil management, Geoffrey P. appeals from an order of the Supreme Court, Orange County (DeRosa, J.), dated February 1, 2011, which, upon the granting of the motion of the State of New York pursuant to CPLR 4401 for judgment as a matter of law on the issue of whether he is a “”detained sex offender,”” upon a finding, after a jury trial, that he suffers from a mental abnormality as defined in Mental Hygiene Law § 10.03(i), and upon a determination, made after a dispositional hearing, that he currently is a dangerous sex offender requiring civil confinement, granted the petition and directed that he be committed to a secure treatment facility for care, treatment, and control until such time as he no longer requires confinement.

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

In May 2000, Geoffrey P. was convicted of sexual abuse in the first degree, a class D felony (Penal Law § 130.65). In 2007, the State of New York commenced this civil management proceeding against Geoffrey P. pursuant to the Sex Offender Management and Treatment Act (see Mental Hygiene Law article 10). The Supreme Court conducted a jury trial pursuant to Mental Hygiene Law § 10.07 to determine whether “”the respondent is a detained sex offender who suffers from a mental abnormality”” (Mental Hygiene Law § 10.07[a], [d]). At the close of the evidence, and over the objection of Geoffrey P., the court granted the State’s motion pursuant to CPLR 4401 for judgment as a matter of law on the issue of whether he is a “”detained sex offender.”” The jury subsequently found that Geoffrey P. suffers from a mental abnormality (see Mental Hygiene Law § 10.03[i]), and, following a dispositional hearing, the court determined that Geoffrey P. currently is a dangerous sex offender requiring civil confinement, and directed that he be committed to a secure treatment facility for care, treatment, and control until such time as he no longer requires confinement (see Mental Hygiene Law § 10.07[f]). On appeal, Geoffrey P. does not contest whether, as a factual matter, he is a “”detained sex offender.”” Rather, he contends only that he was entitled to a jury determination on that issue. [*2]

There is no merit to the contention of Geoffrey P. that, in cases where a jury trial has not been waived, Mental Hygiene Law § 10.07 mandates a jury determination on the issue of whether the respondent in the proceeding is a “”detained sex offender.”” The Mental Hygiene Law provides: “”The respondent’s commission of a sex offense shall be deemed established and shall not be relitigated at the trial, whenever it is shown that . . . the respondent stands convicted of such offense”” (Mental Hygiene Law § 10.07[c] [emphasis added]). Geoffrey P.’s status as a sex offender was properly deemed established upon proof of his conviction of sexual abuse in the first degree, which is, by definition, a “”[s]ex offense”” (Mental Hygiene Law § 10.03[p][1]). Furthermore, the issue of whether a sex offender is “”[d]etained”” within the meaning of Mental Hygiene Law § 10.03(g) may be determined by a court as a matter of law (cf. Matter of State of New York v Rashid, 16 NY3d 1). Accordingly, where, as here, the State has established, prima facie, that the individual is a “”detained sex offender”” and there is no dispute as to whether, as a factual matter, the individual is a “”detained sex offender,”” a court may properly determine, as a matter of law, that the individual was a “”detained sex offender”” within the meaning of Mental Hygiene Law § 10.03(g).

Here, the State established, through the admission of certified records, that the defendant was previously convicted of sexual abuse in the first degree, a class D felony (Penal Law § 130.65), and that the defendant was “”a patient in a hospital operated by the office of mental health, and who was admitted directly to such facility . . . upon release or conditional release from a correctional facility”” (Mental Hygiene Law § 10.03[g][5]). Geoffrey P. did not dispute these showings. Accordingly, under the circumstances of this case, the Supreme Court properly granted the State’s motion pursuant to CPLR 4401 for a judgment as a matter of law on the issue of whether Geoffrey P. is a “”[d]etained sex offender”” (Mental Hygiene Law § 10.03[g]).

We further reject Geoffrey P.’s contentions that he was entitled, pursuant to either the United States Constitution or the New York Constitution, to a jury determination on the issue of whether he was a “”detained sex offender”” (see United States v Carta, 592 F3d 34, 43 [1st Cir.]; United States v Sahhar, 917 F2d 1197, 1206-1207 [9th Cir], cert denied 499 US 963; Hernandez-Carrera v Carlson, 547 F3d 1237, 1256 [10th Cir], cert deniedUS, 130 S Ct 1011; see also Matter of State of New York v Myron P., 86 AD3d 26).

Geoffrey P.’s remaining contention has been rendered academic.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Matter of Vita V. (Cara B.)            2011-04648         2012 NY Slip Op 08021    “Decided on November 21, 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.

 

2011-04648

(Index No. 80130/07)

 

 

[*1]In the Matter of Vita V. (Anonymous).

 

and

 

Cara B. (Anonymous), respondent; Samuel Hasanab, et al., appellants.

 

 

 

 

 

Jaffe & Asher, LLP, New York, N.Y. (Jeffrey Zachter and

Gregory E. Galterio of counsel), for appellants.

Gina-Marie Reitano, Staten Island, N.Y., for respondent.

 

 

DECISION & ORDER

In a guardianship proceeding in which the guardian of the person and property of Vita V., an incapacitated person, petitioned pursuant to Mental Hygiene Law § 81.43, inter alia, to recover certain property withheld from the estate of the incapacitated person, Samuel Hasanab, Yuval Golan, and Golan Developers Corp. appeal from an order of the Supreme Court, Richmond County (Aliotta, J.), dated March 15, 2011, which denied their motion to vacate a judgment of the same court entered September 24, 2010, in favor of the petitioner and against them in the total sum of $229,113.32.

ORDERED that the order is reversed, on the law, without costs or disbursements, and the motion to vacate the judgment entered September 24, 2010, is granted.

Cara B. was appointed as guardian of the property and person of Vita V., an incapacitated person. In July 2007, Cara B. petitioned to recover certain property allegedly belonging to Vita V., or the value of that property, from Samuel Hasanab, Yuval Golan, and Golan Developers Corp. (hereinafter collectively the appellants).

A nonjury trial was held from May 18, 2009, through May 21, 2009, and concluded on June 1, 2009. Vita V. died two days later, on June 3, 2009. The trial court issued a decision dated January 6, 2010, finding in favor of Cara B., as the guardian of the person and property of Vita V., and against the appellants in the amount of $200,944.32, plus interest at three per cent per annum from December 5, 2005.

Thereafter, on September 24, 2010, the Supreme Court entered a judgment in the amount of $229,113.32 against the appellants and in favor of Cara B., as guardian of the person and property of Vita V. The appellants moved to vacate the judgment on the basis that, among other things, Vita V. had died prior to the issuance of the decision upon which the judgment was based, and the proceeding should have been stayed until the personal representative of her estate was substituted for Cara B. In an order dated March 15, 2011, the Supreme Court denied the appellants’ motion.

Pursuant to CPLR 1015(a), “”[i]f a party dies and the claim for or against him [or her] is not thereby extinguished the court shall order substitution of the proper parties.”” “”Generally, the [*2]death of a party divests a court of jurisdiction to act, and automatically stays proceedings in the action pending the substitution of a personal representative for the decedent”” (Neuman v Neumann, 85 AD3d 1138, 1139; see JPMorgan Chase Bank, N.A. v Rosemberg, 90 AD3d 713, 714; DLJ Mtge. Capital, Inc. v 44 Brushy Neck, Ltd., 51 AD3d 857, 858; Singer v Riskin, 32 AD3d 839, 839-840).

Upon the death of an incapacitated person, the court appointing the guardian shall discharge the guardian or modify the power of the guardian where appropriate (see Mental Hygiene Law § 81.36[a][3]). Thus, following Vita V.’s death, Cara B., as guardian, was without authority to continue to represent the person and property of Vita V., in the absence of a further order from the court which had appointed her as guardian modifying her authority to allow for the representation of Vita V.’s estate in this proceeding (see Mental Hygiene Law § 81.36[a][3]; see e.g. Matter of Glener, 202 AD2d 503, 503-504). Until such a modification was issued by the court, or a representative was appointed to represent Vita V.’s estate who would have then been substituted in place of Cara B. in this proceeding, the proceeding should have been stayed pursuant to CPLR 1015 (cf. Matter of Rose BB., 262 AD2d 805).

The Supreme Court’s failure to stay the proceeding pending proper substitution rendered the judgment entered thereafter a nullity (see Commerce Commercial Leasing, LLC v PIO Enters., Inc., 78 AD3d 1105, 1106; Coverdale v Zucker, 302 AD2d 348, 348-349; Bluestein v City of New York, 280 AD2d 506, 506).

Accordingly, the Supreme Court should have granted the appellants’ motion to vacate the judgment.

In light of our determination, the appellants’ remaining contention has been rendered academic.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Arias   2011-04851         2012 NY Slip Op 08022    “Decided on November 21, 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.

 

2011-04851

(Ind. No. 10-04328)

 

 

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

 

v

 

Luis Arias, appellant.

 

 

 

 

 

Neal D. Futerfas, White Plains, N.Y., for appellant.

Janet DiFiore, District Attorney, White Plains, N.Y. (Hae Jin

Liu, 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 (Cacace, J.), rendered October 12, 2010, convicting him of course of sexual conduct against a child 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 review of his claim that the agreed-upon sentence, which was in fact imposed, was excessive (see People v Lopez, 6 NY3d 248, 255, 257; People v Callahan, 80 NY2d 273, 281; People v Seaberg, 74 NY2d 1, 10; People v Hawthorne, 85 AD3d 819; People v Benitez, 84 AD3d 826, 827).

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Bazemore         2008-08854         2012 NY Slip Op 08023    “Decided on November 21, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

RANDALL T. ENG, P.J.

RUTH C. BALKIN

L. PRISCILLA HALL

SANDRA L. SGROI, JJ.

 

2008-08854

(Ind. No. 8186/04)

 

 

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

 

v

 

James Bazemore, appellant.

 

 

 

 

 

Steven Banks, New York, N.Y. (Martin M. Lucente of counsel),

for appellant.

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

Joblove, Victor Barall, and Michael

Brenner of counsel), for respondent.

Appeal by the defendant from a resentence of the Supreme Court,

Kings County (Starkey, J.), imposed on September 4, 2008, upon

his conviction of robbery in the third degree (two counts), upon a

jury verdict, after remittitur from this Court for resentencing (see

People v Bazemore, 52 AD3d 727), the resentence being

concurrent indeterminate terms of imprisonment of 17 years to life.

 

 

DECISION & ORDER

.

ORDERED that the resentence is modified, as a matter of discretion in the interest of justice, by reducing the resentence imposed for the convictions of robbery in the third degree under both counts from concurrent indeterminate terms of imprisonment of 17 years to life to concurrent indeterminate terms of imprisonment of 15 years to life.

The Supreme Court providently exercised its discretion in resentencing the defendant as a persistent felony offender (see Penal Law § 70.10[2]; People v Maxwell, 22 AD3d 607; People v Perry, 19 AD3d 619; People v Thomas, 255 AD2d 468). The Supreme Court’s conclusion that the nature of the defendant’s criminal conduct, his history, and his character warranted extended incarceration and life time supervision is supported by the record (see People v Maxwell, 22 AD3d at 607; People v Perry, 19 AD3d at 619; People v Thomas, 255 AD3d at 469). Nevertheless, under the circumstances of this case, the resentence imposed was excessive to the extent indicated (see People v Suitte, 90 AD2d 80).

The defendant’s contention that his adjudication as a persistent felony offender was unconstitutional pursuant to Apprendi v New Jersey (530 US 466) is without merit (see People v Battles, 16 NY3d 54, 59, cert deniedUS, 132 S Ct 123; People v Quinones, 12 NY3d 116, cert deniedUS, 130 S Ct 104; People v Rivera, 5 NY3d 61, cert denied 546 US 984; People v Rosen, 96 NY2d 329, cert denied 534 US 899; People v Watts, 89 AD3d 965, 966, lv denied 18 NY3d 887; People v Aguayo, 85 AD3d 809, 810).

ENG, P.J., BALKIN, HALL and SGROI, JJ., concur. [*2]

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Bernard             2009-11111         2012 NY Slip Op 08024    “Decided on November 21, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

RANDALL T. ENG, P.J.

MARK C. DILLON

RUTH C. BALKIN

JEFFREY A. COHEN, JJ.

 

2009-11111

(Ind. No. 0002/07)

 

 

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

 

v

 

David Bernard, appellant.

 

 

 

 

 

Lynn W. L. Fahey, New York, N.Y. (Steven R. Bernhard of

counsel), for appellant.

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

M. Castellano, Ellen C. Abbot, and

Daniel Bresnahan of counsel), for

respondent.

 

 

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lasak, J.), rendered November 17, 2009, convicting him of robbery in the first degree (four counts), robbery in the second degree (two counts), criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, and criminal possession of stolen property in the fourth degree, upon a jury verdict, and imposing sentence. By decision and order dated February 28, 2012, this Court remitted the matter to the Supreme Court, Queens County, for a new determination of the defendant’s motion to set aside the verdict pursuant to CPL 330.30, and the appeal was held in abeyance in the interim (see People v Bernard, 92 AD3d 952). The Supreme Court has filed its determination.

ORDERED that the judgment is affirmed.

The defendant’s challenge to the legal sufficiency of the evidence is unpreserved for appellate review (see CPL 470.05[2]; People v Hawkins, 11 NY3d 484, 491-492; People v Gray, 86 NY2d 10). 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 fact that one of the People’s witnesses had an unsavory background and testified pursuant to a cooperation agreement did not render his testimony incredible (see People v Chin, 69 AD3d 752, 752-753; People v Jean-Marie, 67 AD3d 704, 705; People v Manley, 60 AD3d 870; People v Adams, 302 AD2d 601; People v Harris, 276 AD2d 562).

Contrary to the defendant’s contention, the Supreme Court did not improvidently exercise its discretion in denying his request for an adverse inference charge. The Supreme Court’s determination of an appropriate sanction for the prosecution’s failure to preserve evidence “”must be [*2]based primarily on the need to eliminate prejudice to the defendant”” (People v Rice, 39 AD3d 567, 568-569; see People v Kelly, 62 NY2d 516, 520). The defendant was not prejudiced by the loss of the evidence at issue (see People v Rice, 39 AD3d at 569; People v Perez, 255 AD2d 403, 403-404).

The defendant’s contention that he was deprived of the effective assistance of counsel because his trial counsel took a position adverse to him on his pro se motion to set aside the verdict pursuant to CPL 330.30 has been rendered academic. Upon remittitur to the Supreme Court, Queens County, for a new determination of the motion (see People v Bernard, 92 AD3d 952), the defendant’s counsel on this appeal represented him and adopted his pro se motion.

ENG, P.J., DILLON, BALKIN and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Bissoon              2011-02888         2012 NY Slip Op 08025    “Decided on November 21, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

WILLIAM F. MASTRO, J.P.

REINALDO E. RIVERA

SHERI S. ROMAN

SANDRA L. SGROI, JJ.

 

2011-02888

(Ind. No. 3827/10)

 

 

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

 

v

 

Rodger Bissoon, appellant.

 

 

 

 

 

Lynn W. L. Fahey, New York, N. Y. (Barry Stending of

counsel), for appellant.

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

Joblove and Amy Appelbaum of

counsel), for respondent.

 

 

DECISION & ORDER

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (D’Emic, J.), imposed February 18, 2011, upon his plea of guilty, on the ground that the sentence was excessive.

ORDERED that the sentence is affirmed.

The defendant’s valid waiver of his right to appeal precludes review of his contention that the sentence imposed was excessive (see People v Bradshaw, 18 NY3d 257, 264-267; People v Ramos, 7 NY3d 737, 738; People v Lopez, 6 NY3d 248, 255; People v Hidalgo, 91 NY2d 733, 735; People v Foy, 89 AD3d 1103, 1103; People v Pertillar, 37 AD3d 740).

MASTRO, J.P., RIVERA, ROMAN and SGROI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Brooks               2011-09655         2012 NY Slip Op 08026    “Decided on November 21, 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.

 

2011-09655

(Ind. No. 1027/10)

 

 

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

 

v

 

Edward Brooks, appellant.

 

 

 

 

 

Robert C. Mitchell, Riverhead, N.Y. (James H. Miller III of

counsel), 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 (J. Doyle, J.), rendered September 13, 2011, convicting him of criminal possession of a controlled substance in the fourth degree, loitering in the first degree, and unlawful possession of marijuana, 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).

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Castelly              2010-10334ON MOTION                2012 NY Slip Op 08027    “Decided on November 21, 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.

 

2010-10334 ON MOTION

(Ind. No. 09-00555)

 

 

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

 

v

 

Cenel Castelly, appellant.

 

 

 

 

 

Edward Cigna, Stony Point, N.Y., for appellant.

Thomas P. Zugibe, District Attorney, New City, N.Y. (Itamar

J. Yeger of counsel), for respondent

(no brief filed).

 

 

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Rockland County (Kelly, J.), rendered September 15, 2010, convicting him of grand larceny in the fourth degree (three counts), criminal possession of stolen property in the fourth degree (three counts), and petit larceny, after a nonjury trial, 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 motion of Edward Cigna for leave to withdraw as counsel for the appellant is granted, and he is directed to turn over all papers in his possession to new counsel assigned herein; and it is further,

ORDERED that Arlene Lewis, Esq., P.O. Box 219, Blauvelt, N.Y., 10913, 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 the date of this decision and order on motion and the People shall serve and file their brief within 120 days of the date of this decision and order; by prior decision and order of this Court, the defendant was granted leave to prosecute the appeal as a poor person, with the appeal to be heard on the original papers (including the 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 nonfrivolous issues exist, including, but not necessarily limited to, whether legally sufficient evidence existed upon which to convict the defendant of grand larceny in the fourth degree and criminal possession of stolen property in the fourth degree with respect to a credit card that was recovered by the police from the codefendants’s back pocket (see People v Julien,AD3d [decided [*2]herewith]). Accordingly, assignment of new counsel is warranted (see People v Stokes, 95 NY2d 633, 638).

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Cohen                2011-03849         2012 NY Slip Op 08028    “Decided on November 21, 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.

 

2011-03849

(Ind. No. 2707-08)

 

 

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

 

v

 

Anwar Cohen, appellant.

 

 

 

 

 

Matthew Muraskin, Port Jefferson, N.Y., for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael

J. Brennan of counsel), for

respondent.

 

 

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Suffolk County (Hudson, J.), rendered April 4, 2011, convicting him of burglary in the first degree and robbery in the first degree (two counts), upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant’s claim with respect to the voluntariness of the plea survives even a valid waiver of the right to appeal (see People v McLean, 77 AD3d 684, 684; People v Rodriguez-Ovalles, 74 AD3d 1368, 1368; People v Elcine, 43 AD3d 1176, 1177; see also People v Seaberg, 74 NY2d 1, 10; People v Adams, 67 AD3d 819, 819; People v Morrow, 48 AD3d 704, 705; People v Nicholas, 8 AD3d 300, 300; People v Hong Ping Lou, 299 AD2d 559, 560). However, the defendant’s contention, in effect, that his plea of guilty was not knowingly, voluntarily, and intelligently entered is unpreserved for appellate review, since he did not move to withdraw his plea on this ground prior to the imposition of sentence (see CPL 220.60[3], 470.05[2]; People v Clarke, 93 NY2d 904, 906; People v Andrea, 98 AD3d 627, 627; People v Hayes, 91 AD3d 792, 792; People v Kulmatycski, 83 AD3d 734, 734; People v Rusielewicz, 45 AD3d 704, 704). In any event, contrary to the defendant’s contention, the record establishes that the defendant’s plea was knowingly, voluntarily, and intelligently entered (see People v Seeber, 4 NY3d 780; People v Fiumefreddo, 82 NY2d 536, 543; People v Palmer, 95 AD3d 1141, 1142; People v Appling, 94 AD3d 1135, 1136; People v Cancel, 92 AD3d 891, 891; People v Ortiz, 89 AD3d 1113, 1113).

The defendant’s contention that he was deprived of the effective assistance of counsel is based on matter dehors the record and, therefore, cannot be reviewed on direct appeal (see People v Cancel, 92 AD3d at 891; People v Bivens, 88 AD3d 808, 809; People v Romero, 82 AD3d 1013, 1013; People v Burgess, 81 AD3d 969, 970; People v Anthoulis, 78 AD3d 854, 854-855).

SKELOS, J.P., ANGIOLILLO, DICKERSON and HALL, JJ., concur. [*2]

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Condon             2011-05747         2012 NY Slip Op 08029    “Decided on November 21, 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.

 

2011-05747

(Ind. No. 401/10)

 

 

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

 

v

 

William Condon, appellant.

 

 

 

 

 

Brian J. Davis, P.C., Garden City, N.Y., for appellant.

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

M. Castellano and Sharon Y. Brodt of

counsel; Andrew Dykens on the brief),

for respondent.

 

 

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.), rendered June 16, 2011, convicting him of criminal possession of a weapon in the second degree, upon his plea of guilty, 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.

The credibility determinations of a hearing court are accorded great deference on appeal, and will not be disturbed unless clearly unsupported by the record (see People v Prochilo, 41 NY2d 759, 761; People v Wilson, 96 AD3d 980, 981; People v Marinus, 90 AD3d 677, 678). Here, the record supports the Supreme Court’s determination to credit the testimony of the arresting officer that he approached the defendant’s vehicle, which was parked on the street near a large dance club, because he observed the front seat passenger drinking from a bottle which he believed to contain alcohol. Contrary to the defendant’s contention, the testimony of the arresting officer was not incredible, patently tailored to nullify constitutional objections, or otherwise unworthy of belief (see People v Johnson, 83 AD3d 733, 734; People v Cobb, 71 AD3d 781, 782; People v Glenn, 53 AD3d 622, 623).

The Supreme Court also properly found, upon crediting the arresting officer’s testimony, that once the front seat passenger opened his door, enabling the officer to detect the odor of marijuana and observe two plastic bags of marijuana in the center console, he had probable cause to arrest the defendant and search his car (see People v Carter, 60 AD3d 1103, 1105; People v Parris, 26 AD3d 393, 394; People v Cruz, 7 AD3d 335, 337; see also People v George, 78 AD3d 728, 729; People v Cirigliano, 15 AD3d 672, 673). Since the defendant’s arrest was proper, his subsequent statements to the police cannot be deemed the fruit of the poisonous tree subject to the exclusionary rule (see People v McClendon, 92 AD3d 959, 960; People v Day, 8 AD3d 495, 496). Accordingly, the Supreme Court properly denied those branches of the defendant’s omnibus motion which were to suppress physical evidence and his statements to law enforcement officials.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Cormier             1999-11698         2012 NY Slip Op 08030    “Decided on November 21, 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

ANITA R. FLORIO, JJ.

 

1999-11698

(Ind. No. 11786/98)

 

 

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

 

v

 

Chaymarl Cormier, appellant. Chaymarl Cormier, Coxsackie, N.Y., appellant pro se.

 

 

 

 

 

DECISION & ORDER

Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated May 28, 2002 (People v Cormier, 294 AD2d 593), affirming a judgment of the Supreme Court, Kings County, rendered December 13, 1999.

ORDERED that the application is denied.

The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v Barnes, 463 US 745; People v Stultz, 2 NY3d 277).

ENG, P.J., MASTRO, RIVERA and FLORIO, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Gonzalez           2010-01894ON MOTION                2012 NY Slip Op 08031    “Decided on November 21, 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.

 

2010-01894 ON MOTION

(Ind. No. 11507/00)

 

 

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

 

v

 

Juan Gonzalez, appellant.

 

 

 

 

 

Lynn W. L. Fahey, New York, N.Y. (A. Alexander Donn of

counsel), for appellant.

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

M. Castellano, Johnnette Traill, and

Josette Simmons-McGhee of counsel),

for respondent.

 

 

DECISION & ORDER

Appeal by the defendant from a resentence of the Supreme Court, Queens County (Knopf, J.), imposed January 13, 2010, pursuant to CPL 440.46, upon his conviction of criminal sale of a controlled substance in the third degree, which sentence was originally imposed, upon his plea of guilty, on April 24, 2002. 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 Lynn W. L. Fahey 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 Steven Banks, Esq., The Legal Aid Society, 199 Water Street – 5th Floor, New York, N.Y.10038, 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 transcripts 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 the date of this decision and order on motion and the respondent shall serve and file its brief within 30 days after the brief on behalf of the appellant is served and filed. By prior decision and order on motion of this Court dated May 5, 2010, 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.

The brief submitted by the appellant’s counsel pursuant to Anders v California (386 US 738) was deficient because it failed to adequately analyze potential appellate issues or highlight facts in the record that might arguably support the appeal (see People v Poznanski, 97 AD3d 701, 701-702; People v Williams, 96 AD3d 884, 885; People v Sanders, 91 AD3d 798, 799; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252, 256; People v Barger, 72 AD3d 696, 697). Since the brief does not demonstrate that assigned counsel acted “”as an active advocate on behalf of . . . her client”” [*2](Matter of Giovanni S. [Jasmin A.], 89 AD3d at 256 [internal quotation marks omitted]), we must assign new counsel to represent the appellant (see People v Sanders, 91 AD3d at 799; People v Foster, 90 AD3d 1070; Matter of Giovanni S. [Jasmin A.], 89 AD3d at 258). Additionally, there is no indication that a copy of the brief was furnished to the appellant so as to allow him to raise “” any points that he chooses'”” (Matter of Giovanni S. [Jasmin A.], 89 AD3d at 255, quoting Anders v California, 386 US at 744).

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Gueye                2008-07024         2012 NY Slip Op 08032    “Decided on November 21, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

WILLIAM F. MASTRO, J.P.

RUTH C. BALKIN

JOHN M. LEVENTHAL

ROBERT J. MILLER, JJ.

 

2008-07024

(Ind. No. 3210/05)

 

 

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

 

v

 

Khadim Gueye, appellant.

 

 

 

 

 

Khadim Gueye, Malone, N.Y., appellant pro se.

Lynn W. L. Fahey, N.Y. (Steven R. Bernhard of counsel),

former appellate counsel.

 

 

DECISION & ORDER

Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated February 22, 2011 (People v Gueye, 81 AD3d 974), affirming a judgment of the Supreme Court, Queens County, rendered July 16, 2008.

ORDERED that the application is denied.

The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v Barnes, 463 US 745; People v Stultz, 2 NY3d 277).

MASTRO, J.P., BALKIN, LEVENTHAL and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Hira     2011-00137         2012 NY Slip Op 08033    “Decided on November 21, 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.

 

2011-00137

(Ind. No. 2047/08)

 

 

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

 

v

 

Harpal Hira, appellant.

 

 

 

 

 

Matthew C. Hug, Troy, N.Y., for appellant.

Kathleen M. Rice, District Attorney, Mineola, N.Y. (Robert

A. Schwartz and Joanna Hershey of

counsel), for respondent.

 

 

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Honorof, J.), rendered November 23, 2010, convicting him of murder in the second degree, assault in the first degree, assault in the second degree, criminal contempt in the first degree (two counts), aggravated criminal contempt (two counts), criminal possession of a weapon in the fourth degree, assault in the third degree, and menacing in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, on the law, by vacating the conviction of assault in the second degree and the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.

The Supreme Court submitted, inter alia, the charge of murder in the second degree (see Penal Law § 125.25[1]) to the jury and, in the alternative, the lesser-included offense of manslaughter in the first degree (see Penal Law § 125.20[1]). The court denied the defendant’s request to charge manslaughter in the second degree (see Penal Law § 125.15[1]). The jury found the defendant guilty of, among other things, murder in the second degree. Where, as here, “”a court charges the next lesser included offense of the crime alleged in the indictment, but refuses to charge lesser degrees than that . . . the defendant’s conviction of the crime alleged in the indictment forecloses a challenge to the court’s refusal to charge the remote lesser included offenses”” (People v Boettcher, 69 NY2d 174, 180; see People v Green, 5 NY3d 538, 545; People v Irizarry, 88 AD3d 1013). “”Thus, review of the defendant’s challenge to the [Supreme] Court’s refusal to charge manslaughter in the second degree as a lesser-included offense of murder in the second degree is foreclosed by the jury verdict finding him guilty of murder in the second degree, the crime alleged in the indictment, and its implicit rejection of the lesser-included offense of manslaughter in the first degree”” (People v Gorham, 72 AD3d 1108, 1109; see People v Johnson, 87 NY2d 357, 361; People v Irizarry, 88 AD3d at 1013; People v Alston, 77 AD3d 762).

The defendant’s contention that the evidence was legally insufficient to support his conviction of assault in the first degree under count three of the indictment, which is predicated on the theory that the defendant intentionally caused serious physical injury to the complainant by means of a dangerous instrument, is unpreserved for appellate review (see CPL 470.05[2]; People v Hawkins, 11 NY3d 484, 492; People v Serrano, 74 AD3d 1104, 1105), and, in any event, is without merit. [*2]

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 as to all of the crimes of which the defendant was convicted was not against the weight of the evidence (see People v Romero, 7 NY3d 633).

There is no basis for vacating the defendant’s conviction of criminal contempt in the first degree. Although the defendant was convicted of aggravated criminal contempt, criminal contempt in the first degree is not a lesser-included offense of that crime (see CPL 1.20[37]; People v Glover, 57 NY2d 61, 63-64; People v Wilmore, 305 AD2d 117, 118). It is possible to commit aggravated criminal contempt without committing criminal contempt in the first degree, because aggravated criminal contempt can be committed recklessly (see Penal Law § 215.52), whereas criminal contempt in the first degree requires intent (see Penal Law § 215.51[b][v]).

The People correctly concede that the defendant’s conviction of assault in the second degree must be vacated, and that count of the indictment dismissed, as it is an inclusory concurrent count of assault in the first degree (see CPL 300.30[4]; 300.40 [3] [b]; Penal Law §§ 120.05[1], [2]; 120.10[1]; People v LaConte, 45 AD3d 699, 699-700; People v Hamm, 42 AD3d 550; People v DeFreitas, 19 AD3d 506, 507).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80).

The defendant’s remaining contentions are without merit.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Jenkins              2011-08210         2012 NY Slip Op 08034    “Decided on November 21, 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.

 

2011-08210

(Ind. No. 67/10)

 

 

[*1]The People of the State of New York, appellant,

 

v

 

Benjamin Jenkins, respondent.

 

 

 

 

 

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

Joblove and Sholom J. Twersky of counsel), for appellant.

Steven Banks, New York, N.Y. (Allen Fallek of counsel), for

respondent.

 

 

DECISION & ORDER

Appeal by the People from so much of an order of the Supreme Court, Kings County (Mangano, Jr., J.), dated June 23, 2011, as, after a hearing, granted that branch of the defendant’s omnibus motion which was to suppress physical evidence.

ORDERED that the order is reversed insofar as appealed from, on the law, that branch of the defendant’s omnibus motion which was to suppress physical evidence is denied, and the matter is remitted to the Supreme Court, Kings County, for further proceedings on the indictment.

The evidence adduced at the suppression hearing established that the police saw and heard gunfire on the roof an apartment building, heard gunfire in the stairwell of that building, and observed the defendant, holding a gun, run into the subject apartment with a second man. These facts support a determination that exigent circumstances existed which justified the entry of the police into the subject apartment and arresting the defendant there (see People v McBride, 14 NY3d 440, 445, cert deniedUS, 131 S Ct 327; People v Rodriguez, 77 AD3d 280, 287; People v Miles, 210 AD2d 353). Furthermore, these circumstances justified a warrantless search for the gun. The police knew that the gun was inside the apartment, which had occupants other than the defendant (see People v Parker, 299 AD2d 859; People v Sanchez, 255 AD2d 614; People v Johnson, 181 AD2d 103, affd 81 NY2d 980; People v Gordon, 110 AD2d 778; cf. People v Knapp, 52 NY2d 689). The scope of the search was sufficiently limited by, and reasonably related to, the exigencies of the situation (see People v Dillon, 44 AD3d 1068, 1070).

Accordingly, the Supreme Court should have denied that branch of the defendant’s omnibus motion which was to suppress physical evidence.

ANGIOLILLO, J.P., BALKIN, LOTT and ROMAN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Julien  2010-10177         2012 NY Slip Op 08035    “Decided on November 21, 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.

 

2010-10177

(Ind. No. 09-00555)

 

 

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

 

v

 

Lucson Julien, appellant.

 

 

 

 

 

John M. Schwarz, Chestnut Ridge, N.Y., for appellant.

Thomas P. Zugibe, District Attorney, New City, N.Y. (Itamar

J. Yeger of counsel), for respondent.

 

 

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Rockland County (Kelly, J.), rendered September 15, 2010, convicting him of grand larceny in the fourth degree (three counts), criminal possession of stolen property in the fourth degree (three counts), and petit larceny, after a nonjury trial, and imposing sentence. The appeal brings up for review so much of an order of the same court dated June 17, 2010, as, after a hearing, denied those branches of the defendant’s omnibus motion which were to suppress certain identification testimony and physical evidence.

ORDERED that the judgment is modified, on the law, by vacating the convictions of grand larceny in the fourth degree and criminal possession of stolen property in the fourth degree under counts three and six of the indictment, respectively, vacating the sentences imposed thereon, and dismissing those counts of the indictment; as so modified, the judgment is affirmed, that branch of the defendant’s omnibus motion which was to suppress physical evidence is granted, and the order dated June 17, 2010, is modified accordingly.

The defendant’s challenge to the admissibility of photocopies of certain physical evidence, namely, two credit cards and a debit card, on the basis that the People failed to establish that the cards at issue were valid, is unpreserved for appellate review (see CPL 470.05[2]; People v Estevez, 95 AD3d 1232, 1233, lv denied 19 NY3d 996). In any event, it was not necessary for the People to prove that the cards were valid, since “”criminal liability with regard to credit cards can arise even with respect to non-activated, expired or canceled cards”” (People v Thompson, 287 AD2d 399, 400, affd 99 NY2d 38; see People v Winfield, 145 AD2d 449, 450; see also People v McCloud, 50 AD3d 379, 380; People v Radoncic, 259 AD2d 428, 429). Moreover, the court, as the factfinder, “”was entitled to rely on the victim’s unchallenged testimony that the item was her credit card,”” where “”[a] sufficiently specific motion might have provided the opportunity for cure”” (People v McMillan, 90 AD3d 499, 499, quoting People v Gray, 86 NY2d 10, 20).

The defendant’s claim that the People failed to show that the victim had a right of possession to a Macy’s credit card issued to her mother that was superior to that of the defendant is [*2]also unpreserved for appellate review (see People v Stewart, 71 AD3d 797, 798), and, in any event, is without merit, since the victim’s testimony that she was listed as an authorized user of her mother’s Macy’s credit card was undisputed, and the card was in the victim’s possession before it was stolen from her by the defendant (see People v Wilson, 93 NY2d 222, 225-226; People v Hutchinson, 56 NY2d 868, 869; People v Marshall, 293 AD2d 629).

We reject the defendant’s contention that the Supreme Court erred in denying suppression of the showup identification made by the victim near the scene of the crime. Although showup identification procedures are generally disfavored, they are permissible where, as here, they are carried out in close spatial and temporal proximity to the commission of the crime for the purpose of securing a prompt and reliable identification (see People v Duuvon, 77 NY2d 541, 543; People v Hicks, 78 AD3d 1075; People v Grassia, 195 AD2d 607). The fact that the victim was in the company of a friend at the time the victim identified the defendant did not render the showup constitutionally infirm (see People v Pritchard, 208 AD2d 568; People v Bond, 156 AD2d 573).

However, we agree with the defendant that the Supreme Court erred in denying that branch of his pretrial motion which was to suppress a Capital One Platinum Visa credit card recovered by the police from a back pocket of his pants during a pre-arrest search. The search, apparently based on the observation of a bulge in a back pocket of the defendant’s tight-fitting pants, cannot be upheld as justifiably premised on probable cause, since the defendant had not been placed under arrest prior to the search (cf. United States v Robinson, 414 US 218, 236; People v Anderson, 91 AD3d 789, 790). In addition, the People did not adduce evidence sufficient to establish that the officer who conducted the search reasonably feared for his safety as a justification for the search, particularly since “”a pocket bulge . . . could be caused by any number of innocuous objects”” (People v DeBour, 40 NY2d 210, 221; see People v Shuler, 98 AD3d 695, 696-697; People v Stevenson, 7 AD3d 820, 821). Moreover, despite the People’s contention to the contrary, the card was not admissible pursuant to the inevitable discovery exception to the exclusionary rule, since the card constituted primary, rather than secondary, evidence (see People v Stith, 69 NY2d 313, 318-319; People v Mais, 71 AD3d 1163, 1164-1165; People v Lindsey, 13 AD3d 651, 652). Accordingly, the defendant’s convictions of grand larceny in the fourth degree and criminal possession of stolen property in the fourth degree, premised upon the subject card, under counts three and six of the indictment, and the sentences imposed thereon, must be vacated, and those counts of the indictment dismissed.

The defendant’s remaining contentions are without merit.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Keiser 2007-04335         2012 NY Slip Op 08036    “Decided on November 21, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

MARK C. DILLON, J.P.

DANIEL D. ANGIOLILLO

THOMAS A. DICKERSON

JEFFREY A. COHEN, JJ.

 

2007-04335

(Ind. No. 132/06)

 

 

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

 

v

 

David Keiser, appellant.

 

 

 

 

 

Steven A. Feldman, Uniondale, N.Y., for appellant.

William V. Grady, District Attorney, Poughkeepsie, N.Y.

(Kristen A. Rappleyea of counsel),

for respondent.

 

 

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Dutchess County (T. Dolan, J.), rendered April 12, 2007, convicting him of attempted criminal sexual act in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

As a threshold matter, the defendant’s written waiver of his right to appeal was not valid, because the County Court did not ensure that he “”understood the valued right [he] was relinquishing”” (People v Lopez, 6 NY3d 248, 257; People v Elcine, 43 AD3d 1176, 1177 [internal quotation marks omitted]). A detailed written waiver can supplement a court’s on-the-record explanation of what a waiver of the right to appeal entails, but a written waiver “”does not, standing alone, provide sufficient assurance that the defendant is knowingly, intelligently and voluntarily giving up his or her right to appeal as a condition of the plea agreement”” (People v Bradshaw, 76 AD3d 566, 569, affd 18 NY3d 257). Here, the County Court did not mention the appellate waiver during its inquiry of the defendant prior to his plea allocution and merely stated, only after the defendant pleaded guilty, that it would defer the waiver until sentencing. Accordingly, the defendant’s written waiver of the right to appeal was not valid.

We reject the defendant’s argument that he lacked capacity to enter a plea of guilty. CPL 730.30(1) states: “”At any time after a defendant is arraigned upon an accusatory instrument other than a felony complaint and before the imposition of sentence, or at any time after a defendant is arraigned upon a felony complaint and before he is held for the action of the grand jury, the court wherein the criminal action is pending must issue an order of examination when it is of the opinion that the defendant may be an incapacitated person”” (emphasis added). An “”[i]ncapacitated person”” is a person “”who as a result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense”” (CPL 730.10[1]). A defendant is presumed competent and the court is not required to issue an order of examination unless there exists a reasonable ground to believe that the defendant was an incapacitated person (see People v Morgan, 87 NY2d 878, 880). The presumption of capacity is not rebutted by a mere showing that the defendant has a history of mental illness (see People v Bilal, 79 AD3d 900, 902). [*2]

At the plea proceeding in this case, the defendant, in response to an inquiry by the County Court, indicated that the medications he was taking affected his thought process or ability to understand the proceedings. The court engaged in a further colloquy with him, and his attorney declared that the defendant rationally approached the plea decision. Moreover, the court observed the defendant and noted that he appeared lucid and responsive. Thus, the County Court inquired into the defendant’s competence to proceed, and made a concurrent determination of his capacity prior to accepting his plea of guilty. The colloquy between the defendant and the County Court did not reveal a reasonable ground to believe that the defendant lacked the capacity to understand the proceeding against him or to assist in his own defense. Accordingly, the court did not err in accepting the defendant’s plea of guilty (see CPL 730.10[1]; People v Armlin, 37 NY2d 167, 168; cf. People v Galea, 54 AD3d 686, 688).

Contrary to the defendant’s contention, the County Court properly, in effect, imposed a $1,000 supplemental sex offender victim fee (see Penal Law § 60.35[1][b]). In addition, although the defendant argues that the County Court improperly failed to rule on his objections to certain alleged inaccuracies in the presentence report, he failed, prior to sentencing, to move to have the report corrected (see People v Skinner, 261 AD2d 490) or to seek an adjournment for the preparation of a new report (see People v Karlas, 208 AD2d 767).

The County Court did not err in failing to warn the defendant of the Sex Offender Registration Act (Correction Law article 6-C) consequences of his plea since sex offender registration is a collateral consequence of a plea of guilty (see People v Gravino, 14 NY3d 546).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80, 86).

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Lessner              2011-04190         2012 NY Slip Op 08037    “Decided on November 21, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

DANIEL D. ANGIOLILLO, J.P.

ANITA R. FLORIO

JOHN M. LEVENTHAL

PLUMMER E. LOTT, JJ.

 

2011-04190

 

 

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

 

v

 

Mathew Lessner, appellant. (S.C.I. No. 25/11)

 

 

 

 

 

David Gandin, Walden, 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 (Forman, J.), rendered April 19, 2011, 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 imposing an amount of restitution without a hearing because there was insufficient evidence in the record to allow the County Court to determine the amount he should pay. However, since the defendant failed to request a restitution hearing or object to the amount of restitution he was required to pay, his present claim regarding the amount of restitution 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 Rojas, 74 AD3d 1369). In any event, there was sufficient evidence in the record to support the County Court’s determination as to the amount of restitution (see People v Kim, 91 NY2d 407, 410-411; People v Harris, 72 AD3d 1110, 1112; People v Lawson, 65 AD3d 1380, 1381; People v Charles, 309 AD2d 873, 874).

The defendant’s remaining contention is unpreserved for appellate review.

ANGIOLILLO, J.P., FLORIO, LEVENTHAL and LOTT, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Martin                2011-07596         2012 NY Slip Op 08038    “Decided on November 21, 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.

 

2011-07596

(Ind. No. 10-01360)

 

 

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

 

v

 

Richard Martin, appellant.

 

 

 

 

 

John R. Lewis, Sleepy Hollow, N.Y., for appellant.

Janet DiFiore, District Attorney, White Plains, N.Y. (Jennifer

Spencer, Steven A. Bender, and

Richard Longworth Hecht of

counsel), for respondent.

 

 

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Westchester County (Lorenzo, J.), rendered July 6, 2011, convicting him of driving while intoxicated, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The introduction of testimony regarding the results of a field breathalyzer test performed on the defendant did not constitute reversible error, because this testimony was elicited after defense counsel opened the door to the matter during opening statements and cross-examination (see People v Melendez, 55 NY2d 445, 451-453; People v Vines, 51 AD3d 827; People v Joyner, 295 AD2d 625). Moreover, any potential prejudice to the defendant was alleviated by the trial court’s limiting instructions to the jury (see People v Vines, 51 AD3d 827; People v Hernandez, 11 AD3d 479, 782 NYS2d 776; People v Joyner, 295 AD2d at 625).

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Mattocks          2010-10599         2012 NY Slip Op 08039    “Decided on November 21, 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.

 

2010-10599

(Ind. No. 3621/09)

 

 

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

 

v

 

Abdul Mattocks, appellant.

 

 

 

 

 

Lynn W. L. Fahey, New York, N.Y. (Reyna E. Marder of

counsel), for appellant.

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

Joblove and Howard B. Goodman of

counsel), for respondent.

 

 

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Joel Goldberg, J.), rendered October 27, 2010, convicting him of manslaughter in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, as a matter of discretion in the interest of justice, and the matter is remitted to the Supreme Court, Kings County, for a new trial.

Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621), we find that it was legally sufficient to establish his guilt of manslaughter in the second degree beyond a reasonable doubt. Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt on the conviction of manslaughter in the second degree was not against the weight of the evidence (see People v Romero, 7 NY3d 633).

However, although the following issues are unpreserved for appellate review (see CPL 470.05[2]; People v Heyward, 50 AD3d 699, 700; People v Osorio, 49 AD3d 562, 563-564), upon the exercise of our interest of justice jurisdiction (see CPL 470.15[3][c]; People v Broadwater, 116 AD2d 1022, 1022-1023; see also People v Engstrom, 86 AD3d 580, 581; People v Barker, 183 AD2d 835, 835), we agree with the defendant that the prosecutor’s improper impeachment of her own witness in violation of CPL 60.35 (see People v Fitzpatrick, 40 NY2d 44, 51-53; People v Andre, 185 AD2d 276, 276-277; People v Comer, 146 AD2d 794, 794-795; cf. People v Faulkner, 220 AD2d 525, 526; People v Magee, 128 AD2d 811, 811) and her improper use of such impeachment material during summation, together with related errors of the court with respect to the impeachment material, had the cumulative effect of depriving the defendant of his due process right to a fair trial (see People v Andre, 185 AD2d at 277-278; see also People v Engstrom, 86 AD3d at 581). Accordingly, the judgment must be reversed and the matter remitted to the Supreme Court, Kings County, for a new trial.

DILLON, J.P., AUSTIN, SGROI and COHEN, JJ., concur. [*2]

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Moore               2009-04906         2012 NY Slip Op 08040    “Decided on November 21, 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.

 

2009-04906

(Ind. No. 2626/06)

 

 

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

 

v

 

Lamar Moore, appellant.

 

 

 

 

 

Steven Banks, New York, N.Y. (Martin Lucente of counsel), for

appellant.

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

M. Castellano, Johnnette Traill, and

Rebecca Height of counsel), for

respondent.

 

 

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lasak, J.), rendered May 6, 2009, convicting him of assault in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

In denying the defendant’s challenge pursuant to Batson v Kentucky (476 US 79, 96), the Supreme Court properly determined that the race-neutral reasons given by the prosecutor for exercising peremptory challenges with respect to several African-American jurors were not a pretext for discrimination (see People v Smocum, 99 NY2d 418, 421; People v Richie, 217 AD2d 84, 89; see also Thaler v Haynes,US, 130 S Ct 1171; People v Johnson, 73 AD3d 578).

The defendant’s contention that the admission of certain evidence violated his constitutional right to confrontation is unpreserved for appellate review (see CPL 470.05[2]; People v Gray, 86 NY2d 10, 21), and we decline to reach it in the exercise of our interest of justice jurisdiction.

The Supreme Court properly denied the defendant’s request for a justification charge since, viewing the evidence in the light most favorable to him, there was no reasonable view of the evidence establishing the elements of the defense (see Penal Law § 35.15[2][a]; People v Grady, 40 AD3d 1368; see also People v Reynoso, 73 NY2d 816, 818).

The defendant’s remaining contention, regarding the People’s introduction into evidence of an alias used by him, is without merit.

FLORIO, J.P., LEVENTHAL, AUSTIN and COHEN, JJ., concur. [*2]

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Pilgrim                2011-01660         2012 NY Slip Op 08041    “Decided on November 21, 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.

 

2011-01660

(Ind. No. 9562/09)

 

 

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

 

v

 

Christopher Pilgrim, appellant.

 

 

 

 

 

Lynn W. L. Fahey, New York, N.Y. (Jessica M. McNamara of

counsel), for appellant.

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

Joblove and Diane R. Eisner of

counsel), for respondent.

 

 

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Giudice, J.), rendered February 8, 2011, convicting him of criminal sexual act in the first degree, upon a jury verdict, and sentencing him to a determinate term of eight years of imprisonment plus a period of five years of postrelease supervision.

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentence imposed from a determinate term of eight years of imprisonment plus a period of five years of postrelease supervision to a determinate term of five years of imprisonment plus a period of five years of postrelease supervision.

The defendant’s contention that the Supreme Court’s instructions to the prospective jurors during jury selection were improper is unpreserved for appellate review, since neither defense counsel’s general exception nor his arguments alerted the trial court to the specific objections which the defendant now raises on appeal (see People v Hollingsworth, 299 AD2d 368; People v Staton, 124 AD2d 687). In any event, the instructions during voir dire were not improper (see People v Harper, 32 AD3d 16, affd 7 NY3d 882; People v Hoyle, 32 AD3d 864; People v Andrews, 30 AD3d 434).

The sentence imposed was excessive to the extent indicated herein (see People v Suitte, 90 AD2d 80).

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Quiles 2009-09028         2012 NY Slip Op 08042    “Decided on November 21, 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.

 

2009-09028

2010-11082

(Ind. No. 787/06)

 

 

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

 

v

 

Robert Quiles, appellant.

 

 

 

 

 

Steven Banks, New York, N.Y. (Laura Boyd of counsel), for

appellant.

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

Joblove and Seth M. Lieberman of

counsel; Robert Ho on the brief), for

respondent.

 

 

DECISION & ORDER

Appeals by the defendant from (1) a judgment of the Supreme Court, Kings County (Parker, J.), rendered September 1, 2009, convicting him of attempted criminal possession of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence, and (2) a resentence of the same court imposed October 27, 2010. 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 and the resentence are 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 appeals. 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).

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Ray      2010-09278         2012 NY Slip Op 08043    “Decided on November 21, 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.

 

2010-09278

(Ind. No. 2454N-09)

 

 

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

 

v

 

Isaac Ray, appellant.

 

 

 

 

 

Beverly Van Ness, New York, N.Y., for appellant, and appellant

pro se.

Kathleen M. Rice, District Attorney, Mineola, N.Y. (Judith R.

Sternberg and Barbara Kornblau of

counsel; Danielle Shure and Jordan

Hoch on the brief), for respondent.

 

 

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Robbins, J.), rendered September 7, 2010, convicting him of burglary in the second degree and criminal mischief in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant’s contention that the Supreme Court improperly permitted Detective Jeffrey Gross, who was not a witness to the crime in question, to testify that, in his opinion, the person depicted in a surveillance video was the defendant, is unpreserved for appellate review (see CPL 470.05[2]; People v Serrano, 74 AD3d 1104, 1106; People v Kelly, 67 AD3d 706, 707). In any event, the defendant’s contention is without merit, as the opinion testimony of Detective Gross, who had encountered the defendant on numerous occasions over more than 15 years, was of assistance to the jury, particularly since the defendant had changed his appearance after the commission of the crime (see People v Rivera, 259 AD2d 316, 317; People v Morgan, 214 AD2d 809, 810; People v Russell, 165 AD2d 327, 332, affd 79 NY2d 1024).

Contrary to the defendant’s contention, the Supreme Court did not improvidently exercise its discretion in denying his motion for a mistrial following testimony from Detective Rhoderick Barrett that, during the course of the investigation, he “”went through some of the old burglary cases.”” The Supreme Court sustained defense counsel’s immediate objection, struck the statement, and gave a prompt curative instruction, which was sufficient to alleviate any prejudice (see People v Hicks, 84 AD3d 1402, 1402-1403; People v Brescia, 41 AD3d 613, 613-614).

The defendant received meaningful representation (see People v Benevento, 91 NY2d 708, 712; People v Baldi, 54 NY2d 137, 147).

The defendant’s contention in his pro se supplemental brief that the evidence was legally insufficient to support his convictions 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 [*2]sufficient to establish the defendant’s guilt beyond a reasonable doubt. 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).

The defendant failed to preserve for appellate review his contention that the sentence imposed by the Supreme Court improperly penalized him for exercising his right to a jury trial, because he did not set forth the issue on the record at the time of sentencing (see People v Hurley, 75 NY2d 887, 888; People v Garcia, 66 AD3d 699; People v Norris, 34 AD3d 500, 501; People v Best, 295 AD2d 441, 441). In any event, the fact that the sentence imposed after trial was greater than the sentence offered during plea negotiations is not, standing alone, an indication that the defendant was punished for exercising his right to trial (see People v Pena, 50 NY2d 400, 411, cert denied 449 US 1087; People v Jimenez, 84 AD3d 1268, 1269; People v Norris, 34 AD3d at 501; People v Best, 295 AD2d at 442). Moreover, the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80).

The defendant’s remaining contentions, including those raised in his pro se supplemental brief, are unpreserved for appellate review (see CPL 470.05[2]) and, in any event, without merit.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Robinson          2010-06813         2012 NY Slip Op 08044    “Decided on November 21, 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.

 

2010-06813

(Ind. No. 417/09)

 

 

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

 

v

 

Edward Robinson, appellant.

 

 

 

 

 

Lynn W. L. Fahey, New York, N.Y. (William A. Loeb of

counsel), for appellant.

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

(John M. Castellano, Sharon Y.

Brodt, and Ushir Pandit of counsel),

for respondent.

 

 

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (LaTella, J.), rendered June 22, 2010, as amended June 24, 2010, convicting him of rape in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment, as amended, is affirmed.

The defendant contends that the trial court erred in denying his application to display scars on his torso and abdomen to the jury in order to rebut the identification testimony presented by the prosecution. To the extent the defendant is raising a constitutional claim, his contention is unpreserved for appellate review (see People v Nails, 95 AD3d 1237, lv denied 19 NY3d 999). In any event, the defendant’s contention is without merit, since he failed to lay a proper foundation for the admission of the subject evidence, offering no proof that the scars on his torso and abdomen existed on the date of the alleged rape (see People v Rodriguez, 64 NY2d 738, 741; People v Brown, 44 AD3d 965; People v Miles, 8 AD3d 758). Contrary to the defendant’s contention, the denial of his application to lay the foundation for the evidence with his own testimony was a provident exercise of the trial court’s discretion, where he conditioned his application upon the ability to testify without being subject to cross-examination (see People v Rodriguez, 64 NY2d at 741).

The defendant’s contention that the trial court improperly interjected itself in the proceedings and the questioning of a certain witness is without merit (see People v Yut Wai Tom, 53 NY2d 44; People v Peters, 98 AD3d 587). In any event, any potential prejudice to the defendant was minimized by the court’s instructions advising the jury that the trial court had no opinion as to the guilt or innocence of the defendant (see People v Rivers, 85 AD3d 826; People v Charles-Pierre, 31 AD3d 659; People v Bembury, 14 AD3d 575).

The defendant’s remaining contention is without merit.

BALKIN, J.P., ROMAN, SGROI and COHEN, JJ., concur. [*2]

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Ropiza                2009-09987         2012 NY Slip Op 08045    “Decided on November 21, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

WILLIAM F. MASTRO, J.P.

PETER B. SKELOS

CHERYL E. CHAMBERS

SANDRA L. SGROI, JJ.

 

2009-09987

(Ind. No. 2889/08)

 

 

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

 

v

 

Antonio Ropiza, appellant.

 

 

 

 

 

Robert C. Mitchell, Riverhead, N.Y. (Alfred J. Cicale of

counsel), for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Grazia

DiVincenzo of counsel), for

respondent.

 

 

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Suffolk County (Hinrichs, J.), rendered September 15, 2009, convicting him of manslaughter in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant’s contention that the County Court should have conducted a further inquiry before imposing sentence, based upon certain post-plea assertions made by him, is unpreserved for appellate review (see People v James, 78 AD3d 965; People v Modesto, 39 AD3d 567; People v Cooper, 34 AD3d 827; People v Tinsley, 32 AD3d 447). Moreover, the rare 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 at 827). In any event, the defendant’s assertions do not warrant vacating his plea (see People v Modesto, 39 AD3d at 567; People v Cooper, 34 AD3d at 827; People v Tinsley, 32 AD3d 447).

The defendant’s valid waiver of his right to appeal precludes appellate review of his contention that he was deprived of the effective assistance of counsel, except to the extent that the alleged ineffective assistance affected the voluntariness of his plea (see People v Watt, 82 AD3d 912; People v Aguayo, 73 AD3d 938, 939). To the extent the defendant claims that the alleged ineffective assistance affected the voluntariness of his plea, the record reveals that he received an advantageous plea, and nothing in the record casts doubt on the apparent effectiveness of counsel (see People v Benevento, 91 NY2d 708, 712; People v Watt, 82 AD3d at 913-914).

The defendant’s valid waiver of his right to appeal also precludes appellate review of his claim that the sentence imposed was excessive (see People v Benitez, 84 AD3d 826, 827).

MASTRO, J.P., SKELOS, CHAMBERS and SGROI, JJ., concur. [*2]

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Simmons           2008-11014         2012 NY Slip Op 08046    “Decided on November 21, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

WILLIAM F. MASTRO, J.P.

ANITA R. FLORIO

JOHN M. LEVENTHAL

SANDRA L. SGROI, JJ.

 

2008-11014

(Ind. No. 2362/05)

 

 

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

 

v

 

Derek Simmons, appellant.

 

 

 

 

 

Derek Simmons, Dannemora, N.Y., appellant pro se.

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

M. Castellano and Ushir Pandit of

counsel), for respondent.

 

 

DECISION & ORDER

Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated May 17, 2011 (People v Simmons, 84 AD3d 1120), affirming a judgment of the Supreme Court, Queens County, rendered November 19, 2008.

ORDERED that the application is denied.

The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v Barnes, 463 US 745; People v Stultz, 2 NY3d 277).

MASTRO, J.P., FLORIO, LEVENTHAL and SGROI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Smith  2011-07340         2012 NY Slip Op 08047    “Decided on November 21, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

REINALDO E. RIVERA, J.P.

THOMAS A. DICKERSON

L. PRISCILLA HALL

ROBERT J. MILLER, JJ.

 

2011-07340

(Ind. No. 134/10)

 

 

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

 

v

 

Robert Smith, appellant.

 

 

 

 

 

Carol Kahn, New York, 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 (Forman, J.), rendered August 4, 2011, convicting him of criminal possession of a controlled substance in the third degree, upon his plea of guilty, and sentencing him to a determinate term of imprisonment of two years, plus a period of two years of postrelease supervision, and a forfeiture of the United States currency and cellular telephone seized at the time of his arrest.

ORDERED that the judgment is modified, on the law, by vacating that portion of the sentence which imposed the forfeiture of the cellular telephone seized at the time of the defendant’s arrest; as so modified, the judgment is affirmed.

The defendant contends that the County Court erred in failing to dismiss the indictment in the interest of justice (see CPL 210.40[1]; People v Clayton, 41 AD2d 204). However, by pleading guilty, the defendant forfeited his right to raise that issue on appeal (see People v Travis, 205 AD2d 648, 648; People v Merlo, 195 AD2d 576, 576; People v Mitchell, 189 AD2d 900, 900; People v Purcell, 161 AD2d 812, 813; People v Macy, 100 AD2d 557, 557).

Under the particular circumstances of this case, we deem it appropriate to vacate that portion of the defendant’s sentence which imposed the forfeiture of the cellular telephone seized at the time of his arrest.

RIVERA, J.P., DICKERSON, HALL and MILLER, JJ., concur.

ENTER: [*2]

Aprilanne Agostino

Clerk of the Court”

People v Turcios-Banegas            2011-02323         2012 NY Slip Op 08048    “Decided on November 21, 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.

 

2011-02323

(Ind. No. 662/09)

 

 

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

 

v

 

Jose Luis Turcios-Banegas, appellant.

 

 

 

 

 

Arza Feldman, Uniondale, N.Y., for appellant.

Kathleen M. Rice, District Attorney, Mineola, N.Y. (Andrea M.

DiGregorio 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 (Donnino, J., at plea; Honorof, J., at sentence), rendered November 18, 2009, convicting him of murder in the first degree, murder in the second degree (two counts), robbery in the first degree, and criminal possession of a weapon 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).

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Umanzor           2010-00866         2012 NY Slip Op 08049    “Decided on November 21, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

RANDALL T. ENG, P.J.

PETER B. SKELOS

CHERYL E. CHAMBERS

SANDRA L. SGROI, JJ.

 

2010-00866

(Ind. No. 2271/08)

 

 

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

 

v

 

Jimmy L. Umanzor, appellant.

 

 

 

 

 

Robert C. Mitchell, Riverhead, N.Y. (Alfred J. Cicale of

counsel), 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 (Hinrichs, J.), rendered December 14, 2009, convicting him of murder in the second 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).

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v Watts 2010-03249         2012 NY Slip Op 08050    “Decided on November 21, 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.

 

2010-03249

(Ind. No. 535/09)

 

 

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

 

v

 

Joseph Watts, appellant.

 

 

 

 

 

Mitchell Dranow, Sea Cliff, N.Y., for appellant.

Kathleen M. Rice, District Attorney, Mineola, N.Y. (Yael V.

Levy of counsel; Matthew C.

Frankel on the brief), for respondent.

 

 

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Nassau County (Donnino, J.), rendered February 8, 2010, convicting him of burglary in the second 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 waiver of appeal (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 voluntarily, knowingly, 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 voluntarily, knowingly, and intelligently. Contrary to his contention, the County Court properly apprised him of the prison sentence he was agreeing to as part of the plea agreement.

The defendant’s further contention that the County Court should have ordered a sua sponte examination of his mental capacity is based on a psychologist’s report that is not part of the record on appeal. The defendant’s further contention that his trial counsel was ineffective for failing to make the psychologist’s report part of the record is also based on matters outside the record. A CPL 440.10 proceeding is the appropriate forum for reviewing these claims (see e.g. People v Freeman, 93 AD3d 805, 806).

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

ENTER: [*2]

Aprilanne Agostino

Clerk of the Court”

People v West   2011-07112         2012 NY Slip Op 08051    “Decided on November 21, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

WILLIAM F. MASTRO, J.P.

PETER B. SKELOS

CHERYL E. CHAMBERS

SANDRA L. SGROI, JJ.

 

2011-07112

(Ind. No. 138/11)

 

 

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

 

v

 

Derrick West, Jr., appellant.

 

 

 

 

 

Thomas N. N. Angell, Poughkeepsie, N.Y. (Steven Levine of

counsel), 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 July 20, 2011, convicting him of manslaughter in the first 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).

MASTRO, J.P., SKELOS, CHAMBERS and SGROI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

People ex rel. Meltzer v Kings County Dist. Attorney       “2012-09891,”    2012 NY Slip Op 07853    “Decided on November 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.

 

2012-09891 DECISION, ORDER & JUDGMENT

 

 

[*1]The People of the State of New York, ex rel. Stuart Meltzer, on behalf of Austroberto Portilla, petitioner,

 

v

 

Kings County District Attorney, et al., respondents. Stuart Meltzer, Brooklyn, N.Y., petitioner pro se.

 

 

 

 

 

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

Sanchez pro se of counsel), respondent pro se and for respondent Daniel

Sanchez.

Writ of habeas corpus in the nature of an application on behalf

of Austroberto Portilla for bail reduction upon Queens County IDV

Nos. 205985V/11, 20596V/11, 20597V/11, and 20603V/11.

 

 

ADJUDGED that the writ is sustained, without costs or disbursements, to the extent of reducing bail for Austroberto Portilla on each of the above-listed IDV numbers to the sum of $2,000, which may be posted in the form of an insurance company bail bond in that sum or by depositing the sum of $1,000 as a cash bail alternative, for a total bail of $8,000, which may be posted in the form of an insurance company bail bond in that sum or by depositing the sum of $4,000 as a cash bail alternative.

ORDERED that upon receipt of a copy of this decision, order and judgment together with proof that the defendant has given an insurance company bail bond in the amount of $8,000 or has deposited the sum of $4,000 as a cash bail alternative, the Warden of the facility at which the defendant is incarcerated, or his or her agent, is directed to immediately release the defendant.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Arias v Tarar       2011-06068         2012 NY Slip Op 07611    “Decided on November 14, 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.

 

2011-06068

(Index No. 26045/07)

 

 

[*1]Juan Arias, appellant,

 

v

 

Junaid Tarar, et al., defendants, Louis Vlahakis, respondent.

 

 

 

 

 

Phillips, Krantz & Associates, LLP, New York, N.Y. (Heath T.

Buzin of counsel), for appellant.

Stewart H. Friedman, Garden City, N.Y. (Thomas C. Awad and

Robert Horvat of counsel), for

respondent.

Brian J. McGovern, LLC, New York, N.Y. (Michael J. Liloia of

counsel), for defendants Junaid Tarar

and Fida Tarar.

 

 

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Lane, J.), entered April 13, 2011, as granted that branch of the motion of the defendant Louis Vlahakis which was 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 payable by the respondent, and that branch of the motion of the defendant Louis Vlahakis which was for summary judgment dismissing the complaint insofar as asserted against him is denied.

On December 24, 2005, a vehicle owned by the defendant Fida Tarar and driven by the defendant Junaid Tarar struck a Lincoln Town Car (hereinafter the Town Car) driven by nonparty Michael Illescas at the intersection of 36th Avenue and 32nd Street in Astoria, Queens. Junaid Tarar subsequently pleaded guilty to vehicular assault in the second degree and driving while intoxicated. As a result of the collision, several of the occupants of the Town Car were injured. The plaintiff, a passenger in the Town Car, commenced this action against, among others, Louis Vlahakis, the owner of the Town Car, to recover damages for personal injuries he allegedly sustained in the accident. Vlahakis moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against him on the grounds that his vehicle was being operated by Illescas without his permission or consent at the time of the accident and, in any event, the sole proximate cause of the accident was Junaid Tarar’s failure to yield the right-of-way in violation of Vehicle and Traffic Law § 1142(a). The Supreme Court granted that branch of the motion.

Vlahakis failed to establish his prima facie entitlement to judgment as a matter of law on the issues of consent or the drivers’ comparative negligence (see Vinueza v Tarar,AD3d [decided herewith]). Accordingly, the Supreme Court should have denied that [*2]branch of Vlahakis’s motion which was for summary judgment dismissing the complaint insofar as asserted against him.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

“Audi of Smithtown, Inc. v Volkswagen of Am., Inc.”       2011-07603         2012 NY Slip Op 07612    “Decided on November 14, 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.

 

2011-07603

(Index No. 12372/08)

 

 

[*1]Audi of Smithtown, Inc., et al., respondents,

 

v

 

Volkswagen of America, Inc., doing business as Audi of America, Inc., appellant.

 

 

 

 

 

Hogan Lovells US LLP, New York, N.Y. (John J. Sullivan, Eric

J. Stock, James Clare, James R. Vogler, pro hac vice, Steven J.

Yatvin, pro hac vice, and John C. DeMoulpied, pro hac vice, of

counsel), for appellant.

Robinson Brog Leinwand Greene Genovese & Gluck P.C.,

New York, N.Y. (Russell P. McRory

of counsel), for respondents.

 

 

DECISION & ORDER

In an action to recover damages for violation of the Franchised Motor Vehicle Dealer Act (Vehicle and Traffic Law § 460 et seq.), the defendant appeals from an order of the Supreme Court, Suffolk County (Pines, J.), dated May 26, 2011, which granted the plaintiffs’ motion, in effect, for summary judgment on the issue of liability and denied its cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

Volkswagen Group of America, Inc., sued herein as Volkswagen of America, Inc., doing business as Audi of America, Inc., is a franchisor which does business through one of its divisions, Audi of America, Inc. (hereinafter Audi). The plaintiffs are two franchised Audi dealers in Suffolk County. At issue in this litigation are two incentive programs offered by Audi to dealers starting in 2007 to encourage dealers to purchase more Audi vehicles returned by customers at the expiration of their leases (hereinafter lease-returns), thereby keeping the vehicles from being sent to auction houses. Leased vehicles are owned by Audi’s wholly owned subsidiary and captive finance source, VW Credit, Inc. (hereinafter VW Credit) (see Vehicle and Traffic Law § 462[16]). At the end of the lease term, a leased vehicle is returned to the dealer—a process known as “”grounding.”” The dealer then has the option of returning the vehicle to VW Credit or purchasing the vehicle and adding it to its inventory of used vehicles for sale. If the grounding dealer does not purchase the vehicle during the two-day grounding period, any Audi dealer may bid on the vehicle through the web address “”AudiDirect.com.”” If no Audi dealer purchases the lease-return, the vehicle is sent to an auction house.

The “”CPO Purchase Bonus”” is a payment by Audi to dealers, equal to 1.5% of the manufacturer’s suggested retail price on the sale of new vehicles, plus an additional 1% if the customer buys the new vehicle without financing. Existing dealers, such as the plaintiffs, qualified [*2]quarterly by purchasing 30%-50% (depending upon the year of the program) of their overall purchase objective for lease-returns, which is based upon the number of maturing lease-returns at a dealership, and 20%-40% of the purchase objective in each vehicle group. Newly franchised dealers, not having a portfolio of maturing lease-returns, qualified for the CPO Purchase Bonus by meeting a sales objective for the sale of certified pre-owned vehicles. Audi paid this bonus for all new vehicles sold during a qualifying quarter, and made the payment during the following quarter.

Under the “”Keep It Audi”” program, dealers received increasing discounts from VW Credit on the purchase of grounded lease-returns depending on the particular dealer’s qualification level for the program. There were three qualifying levels—Qualifier, Performer, and Champion, which required the dealers to purchase increasing percentages of their quarterly purchase objectives. A dealer’s qualification level was determined each quarter, and the dealer received discounts on purchases of lease-returns made during the next quarter. Dealers qualifying at any level were offered the same discounted price for the purchase of nongrounded lease-returns through AudiDirect.com. Additionally, for the sale of each certified pre-owned vehicle purchased from VW Credit, qualifying dealers received increased cash bonuses, and Performers and Champions received priority access for the purchase of used company cars. New dealers were automatically qualified as Champions for three years, and were not required to meet any lease-return purchase objective.

The plaintiffs commenced this action, alleging that the treatment of newly franchised dealers under the two programs violated the Franchised Motor Vehicle Dealer Act (Vehicle and Traffic Law § 460 et seq.; hereinafter the FMVDA) because it constituted unlawful price discrimination in favor of newly franchised dealers. The plaintiffs moved, in effect, for summary judgment on the issue of liability. Audi cross-moved for summary judgment dismissing the complaint. The Supreme Court granted the plaintiffs’ motion and denied Audi’s cross motion, concluding that the programs violated the FMVDA. Audi appeals.

The Supreme Court properly determined that treatment of newly franchised dealers under the subject programs constituted unlawful price discrimination in violation of the FMVDA. Vehicle and Traffic Law § 463(2)(g) provides, in relevant part:

“”It shall be unlawful for any franchisor, notwithstanding the terms of any franchise contract:

. . .

(g) To sell or offer to sell any new motor vehicle to any franchised motor vehicle dealer at a lower actual price therefor than the actual price offered to any other franchised motor vehicle dealer for the same model vehicle similarly equipped or to utilize any device including, but not limited to, sales promotion plans or programs which result in such lesser actual price. . . This paragraph shall not be construed to prevent the offering of incentive programs or other discounts provided such incentives or discounts are reasonably available to all franchised motor vehicle dealers in this state on a proportionately equal basis.””

 

The Supreme Court properly determined that the CPO Purchase Bonus violated this section of the FMVDA. Audi offered new vehicles to dealers at lower actual prices than it offered similar vehicles to dealers not qualifying for the program. Contrary to Audi’s contention, it is not relevant that the discount was not offered at the time of purchase, since the rebates, although made at a later time, resulted in a lower actual price. Moreover, the program is not saved by the savings clause of Vehicle and Traffic Law § 463(2)(g), as the program was not “”reasonably available to all dealers . . . on a proportionately equal basis.”” The plaintiffs established that they faced higher costs to qualify for the CPO Purchase Bonus than did newly franchised dealers, which, by virtue of their automatic Champion status in the Keep It Audi program, could purchase their used inventory from any source and in any combination, including from the lowest-cost auctions and for the lowest available price on AudiDirect.com. Moreover, the purchase objective for existing dealers was based upon the lease market during the three years immediately preceding the year when the purchase objective was fixed, while the new-dealer sales objectives were based upon current market conditions. [*3]

The Supreme Court also properly determined that the Keep It Audi program violated Vehicle and Traffic Law § 463(2)(aa), which provides, in relevant part:

“”It shall be unlawful for any franchisor, notwithstanding the terms of any franchise contract . . . (aa) [t]o . . . (1) sell directly to a franchised motor vehicle dealer . . . motor vehicles . . . at a price that is lower than the price which the franchisor charges to all other franchised motor vehicle dealers.””

Contrary to Audi’s contention, the plaintiffs submitted evidence of an actual sale of a lease-return to a newly franchised dealer at a price lower than that which they were charged for similar vehicles. In addition to submitting a spreadsheet of prices charged to Audi of Smithtown, Inc., for grounded lease-returns, and the prices which would have been available to newly franchised dealers automatically qualifying at a higher level in the program, the plaintiffs submitted the transcript of the deposition testimony of the general manager of auction operations at VW Credit as to a grounded lease-return purchased by newly franchised dealer Atlantic Imports, Inc. (hereinafter Atlantic), at a reduced price that was established by virtue of Atlantic’s automatic classification at the Champion qualifying level. While it is unclear from the testimony as to which quarter this illustrative purchase was made, there was no quarter in which both of the plaintiffs achieved Champion status. Accordingly, the plaintiffs established that this vehicle was sold to a dealer at a price lower than that which was charged to all other dealers.

Finally, while lease-returns were sold to dealers by VW Credit and not Audi itself, Vehicle and Traffic Law § 463(2)(u) makes it unlawful for any franchisor to employ a subsidiary corporation or captive finance source to accomplish what would otherwise be unlawful conduct on the part of the franchisor. Contrary to Audi’s contention, Vehicle and Traffic Law § 463(2)(u) squarely applies to make Audi liable for price discrimination in the sales of lease-returns made by its subsidiary and captive finance source, VW Credit.

Accordingly, the Supreme Court properly granted the plaintiffs’ motion and denied the cross motion.

Audi’s remaining contentions are either not properly before this Court or without merit.

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

 

2011-07603 DECISION & ORDER ON MOTION

Audi of Smithtown, Inc., et al., respondents, v

Volkswagen of America, Inc., doing business as

Audi of America, Inc., appellant.

(Index No. 12372/08)

Motion by the respondents on an appeal from an order of the Supreme Court, Suffolk County, dated May 26, 2011, to strike the addendum to the appellant’s reply brief and the references to the addendum at pages 24 through 26 of the reply brief or, in the alternative, for the consideration of the arguments raised in the affirmation in support of their motion as a response to the arguments raised in the appellant’s reply brief. Cross motion by the appellant for leave to annex an addendum [*4]to its reply brief. By decision and order on motion of this Court dated July 2, 2012, the motion and cross motion were 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 and the cross motion, and upon the argument of the appeal, it is

ORDERED that those branches of the motion which were to strike stated portions of the appellant’s reply brief are granted, the addendum to the appellant’s reply brief and the references thereto at pages 24 through 26 of the reply brief are stricken and have not been considered in the determination of the appeal, and the motion is otherwise denied as academic; and it is further,

ORDERED that the cross motion is denied.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Board of Mgrs. of Nob Hill Condominium Section II v Board of Mgrs. of Nob Hill Condominium Section I  2011-10972         2012 NY Slip Op 07613               “Decided on November 14, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

RANDALL T. ENG, P.J.

MARK C. DILLON

PLUMMER E. LOTT

JEFFREY A. COHEN, JJ.

 

2011-10972

(Index No. 15922/11)

 

 

[*1]Board of Managers of Nob Hill Condominium Section II, respondent,

 

v

 

Board of Managers of Nob Hill Condominium Section I, et al., appellants.

 

 

 

 

 

Bracken Margolin Besunder LLP, Islandia, N.Y. (Linda U.

Margolin and Kristen L. Ryan of counsel), for appellants.

Ruskin Moscou Faltischek P.C., Uniondale, N.Y. (Adam L.

Browser of counsel), for respondent.

 

 

DECISION & ORDER

In an action, inter alia, for specific performance and to recover damages for breach of contract, the defendants appeal from an order of the Supreme Court, Suffolk County (Pitts, J.), dated October 4, 2011, which granted that branch of the plaintiff’s motion which was pursuant to CPLR 6401 for the appointment of a temporary receiver to, among other things, operate and maintain certain recreational facilities.

ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, and that branch of the plaintiff’s motion which was pursuant to CPLR 6401 for the appointment of a temporary receiver to, among other things, operate and maintain certain recreational facilities is denied.

A party moving for the appointment of a temporary receiver must submit “”clear and convincing evidence of irreparable loss or waste to the subject property and that a temporary receiver is needed to protect their interests”” (Natoli v Milazzo, 65 AD3d 1309, 1310; see CPLR 6401[a]; Vardaris Tech, Inc. v Paleros Inc., 49 AD3d 631; Singh v Brunswick Hosp. Ctr., 2 AD3d 433; Matter of Armienti & Brooks, 309 AD2d 659; Schachner v Sikowitz, 94 AD2d 709). Here, the plaintiff failed to offer any nonspeculative allegations or evidence indicating that the defendants were committing waste or that there was a danger that the subject recreational facilities would be dissipated or lost absent the appointment of a temporary receiver. Accordingly, the Supreme Court improvidently exercised its discretion in granting that branch of the plaintiff’s motion which was pursuant to CPLR 6401 for the appointment of a temporary receiver to, among other things, operate and maintain the recreational facilities.

ENG, P.J., DILLON, LOTT and COHEN, JJ., concur. [*2]

ENTER:

Aprilanne Agostino

Clerk of the Court”

Bonilla v Tishman Interiors Corp.               2012-02085         2012 NY Slip Op 07614    “Decided on November 14, 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.

 

2012-02085

(Index No. 14793/08)

 

 

[*1]Angel Bonilla, respondent,

 

v

 

Tishman Interiors Corporation, et al., appellants (and a third-party action).

 

 

 

 

 

Lester Schwab Katz & Dwyer, LLP, New York, N.Y. (Steven B.

Prystowsky of counsel), for appellants.

Kafko Schnitzer, LLP, Bronx, N.Y. (Neil R. Kafko 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 (Knipel, J.), dated January 5, 2012, which denied their motion pursuant to CPLR 511 to change the venue of the action from Kings County to Rockland County.

ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, the motion pursuant to CPLR 511 to change the venue of the action from Kings County to Rockland County is granted, and the Clerk of the Supreme Court, Kings County, is directed to deliver to the Clerk of the Supreme Court, Rockland County, all papers filed in the action and certified copies of all minutes and entries (see CPLR 511[d]).

In an order dated March 4, 2011, the Supreme Court, Kings County, granted the motion of the defendant M & A Plumbing & Heating Corporation (hereinafter M & A) for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. Since it is undisputed that M & A was the only party in this action whose presence supported venue in Kings County, the appellants’ motion pursuant to CPLR 511 to change the venue of the action to Rockland County, where the plaintiff resided, should have been granted (see Messiha v Staten Is. Univ. Hosp., 77 AD3d 894, 895; Canaan v Costco Wholesale Membership, Inc., 49 AD3d 583, 585; Appel v Dumont Masonic Nursing Home, 47 AD3d 861; Ming-Liang P. Chung v Express Tours, 274 AD2d 506). Even though the appellants did not move for a change of venue until eight months after M & A was dismissed from this action, contrary to the plaintiff’s contention, the relief requested was not barred by laches given that no significant discovery had yet taken place and there was no discernable prejudice to the plaintiff (see CPLR 511[a]; Gangi v DaimlerChrysler Corp., 14 AD3d 482; Rizzuto v Aurelia Osborne Fox Mem. Hosp. Socy., 265 AD2d 471, 472; Gennaro v Grossfeld, 186 AD2d 718; cf. Roberto v M.C. & E.D. Beck, 254 AD2d 404, 405). Accordingly, the Supreme Court improvidently exercised its discretion in denying the appellants’ motion pursuant to CPLR 511 to change the venue of this action from Kings County to Rockland County. [*2]

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

“Cascardo v Snitow Kanfer Holtzer & Millus, LLP”               2011-04602         2012 NY Slip Op 07615    “Decided on November 14, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

WILLIAM F. MASTRO, J.P.

RUTH C. BALKIN

PLUMMER E. LOTT

LEONARD B. AUSTIN, JJ.

 

2011-04602

2011-10851

(Index No. 13345/10)

 

 

[*1]Debra Cascardo, appellant,

 

v

 

Snitow Kanfer Holtzer & Millus, LLP, et al., respondents. Debra Cascardo, Armonk, N.Y., appellant pro se.

 

 

 

 

 

Snitow Kanfer Holtzer & Millus, LLP, New York, N.Y. (Paul F.

Millus pro se of counsel), respondents pro se.

 

 

DECISION & ORDER

In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals (1) from an order of the Supreme Court, Nassau County (Cozzens, Jr., J.), dated April 7, 2011, which granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action, and (2), as limited by her brief, from so much of an order of the same court dated October 7, 2011, as, upon renewal, adhered to the original determination.

ORDERED that the appeal from the order dated April 7, 2011, is dismissed, as that order was superseded by the order dated October 7, 2011, made upon renewal; and it is further,

ORDERED that the order dated October 7, 2011, is affirmed insofar as appealed from; and it is further,

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

Contrary to the plaintiff’s contention, the Supreme Court, upon renewal, properly adhered to its original determination granting that branch of the defendants’ motion which was to dismiss the complaint for failure to state a cause of action. In considering a motion to dismiss pursuant to CPLR 3211(a)(7), the court must “”accept the facts as alleged in the complaint as true, accord [the plaintiff] 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). “”Such a motion should be granted where, even viewing the allegations as true, the plaintiff cannot establish a cause of action”” (Parekh v Cain, 96 AD3d 812, 815; see High Tides, LLC v DeMichele, 88 AD3d 954, 956-957; Schwartz v Schwartz, 55 AD3d 897).

Here, even viewing the factual allegations of the complaint as true, they failed to state a cause of action to recover damages for legal malpractice. In this regard, the plaintiff’s allegations, inter alia, that the defendants failed to present alleged evidence that the plaintiff in the underlying constructive trust action was manipulated into commencing that action against her, were irrelevant [*2]to the presentation of a viable defense against the elements of that constructive trust claim (see generally Rowe v Kingston, 94 AD3d 852, 853; Marini v Lombardo, 79 AD3d 932, 933). Accordingly, the complaint did not allege sufficient facts to state a cause of action to recover damages for legal malpractice (see generally Magidson v Badash, 92 AD3d 644, 644-645; Held v Seidenberg, 87 AD3d 616, 617; Kennedy v H. Bruce Fischer, Esq., P.C., 78 AD3d 1016, 1018-1019; Kuzmin v Nevsky, 74 AD3d 896, 898).

The plaintiff’s remaining contentions are without merit.

MASTRO, J.P., BALKIN, LOTT and AUSTIN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Cascardo v Stacchini        2011-06368         2012 NY Slip Op 07616    “Decided on November 14, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

WILLIAM F. MASTRO, J.P.

RUTH C. BALKIN

PLUMMER E. LOTT

LEONARD B. AUSTIN, JJ.

 

2011-06368

(Index No. 157/11)

 

 

[*1]Debra Cascardo, appellant,

 

v

 

Michael Stacchini, et al., respondents. Debra Cascardo, Armonk, N.Y., appellant pro se.

 

 

 

 

 

Vishnick McGovern Milizio, LLP, Lake Success, N.Y. (Avrohom

Gefen of counsel), for respondents.

 

 

DECISION & ORDER

In an action, inter alia, to recover damages for fraud and legal malpractice, the plaintiff appeals from an order of the Supreme Court, Nassau County (Parga, J.), entered May 26, 2011, which, among other things, granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action, and denied her applications for an award of sanctions and for leave to replead or recommence the action.

ORDERED that the appeal from so much of the order as denied the plaintiff’s applications for an award of sanctions and for leave to replead or recommence the action is dismissed; and it is further,

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

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

Contrary to the plaintiff’s contention, the Supreme Court properly granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action. In considering a motion to dismiss pursuant to CPLR 3211(a)(7), the court must “”accept the facts as alleged in the complaint as true, accord [the plaintiff] 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). “”Such a motion should be granted where, even viewing the allegations as true, the plaintiff cannot establish a cause of action”” (Parekh v Cain, 96 AD3d 812, 815; see High Tides, LLC v DeMichele, 88 AD3d 954, 956-957; Schwartz v Schwartz, 55 AD3d 897).

Here, even viewing the factual allegations of the complaint as true, they failed to adequately state a legally cognizable cause of action. Indeed, in this action against the attorneys who represented her adversaries in unrelated litigation, the plaintiff cannot allege the existence of the requisite contractual, fiduciary, or attorney-client relationship between herself and the defendants to support her various claims sounding in breach of contract, breach of fiduciary duty, and legal malpractice (see generally Breen v Law Off. of Bruce A. Barket, P.C., 52 AD3d 635, 636-637). [*2]Likewise, the plaintiff cannot properly plead reasonable reliance on the representations of another party’s counsel so as to support her claim of fraud (see Mann v Rusk, 14 AD3d 909, 909-910).

The plaintiff’s remaining contentions regarding the defendants’ motion to dismiss the complaint are without merit.

The appeal from the portion of the order denying the plaintiff’s applications for an award of sanctions and for permission to replead or recommence the action must be dismissed, since no appeal lies as of right from this portion of the order, which did not result from a motion made on notice, and leave to appeal has not been granted (see Faello v Faello, 45 AD3d 728; Warren v Hyman, 19 AD3d 481, 481-482; Walsh v Town of Brookhaven, 7 AD3d 699; Ogilvie v McDonalds Corp., 300 AD2d 376, 377).

MASTRO, J.P., BALKIN, LOTT and AUSTIN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Clemente Bros. Contr. Corp. v Hafner-Milazzo    2011-03205         2012 NY Slip Op 07617    “Decided on November 14, 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.

 

2011-03205

2011-10990

(Index No. 21385/10)

 

 

[*1]Clemente Bros. Contracting Corp., et al., appellants,

 

v

 

Aprile Hafner-Milazzo, etc., defendant, Capital One, N.A., respondent.

 

 

 

 

 

Dollinger, Gonski & Grossman, Carle Place, N.Y. (Matthew

Dollinger of counsel), for appellants.

Herrick, Feinstein LLP, New York, N.Y. (Mara B. Levin and

Christopher P. Greeley of counsel), for

respondent.

 

 

DECISION & ORDER

In an action, inter alia, to recover damages for the payment of forged checks, the plaintiffs appeal, as limited by their brief, from (1) so much of an order of the Supreme Court, Suffolk County (Emerson, J.), entered February 10, 2011, as granted those branches of the motion of the defendant Capital One, N.A., which were for summary judgment dismissing the complaint insofar as asserted against it and for summary judgment on its counterclaims, and (2) a judgment of the same court entered February 24, 2011, which, upon the order entered February 10, 2011, is in favor of the defendant Capital One, N.A., and against them in the principal sum of $1,146,262.90.

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 defendant Capital One, N.A.

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]).

The plaintiff Clemente Bros. Contracting Corp. (hereinafter Contracting), was a customer of the defendant bank Capital One, N.A. (hereinafter Capital One). Contracting had three deposit and/or checking accounts with Capital One and also took out two loans from Capital One, for which Contracting executed two promissory notes. The plaintiff Jeffrey A. Clemente, Contracting’s president and sole officer, executed a personal guaranty with respect to the loans.

The defendant Aprile Hafner-Milazzo (hereinafter Hafner-Milazzo) worked as a [*2]secretary and bookkeeper for Contracting until it was discovered that she had been forging Clemente’s signature on certain Capital One bank documents, including checks paid from one of Contracting’s accounts at Capital One. According to the plaintiffs, Hafner-Milazzo embezzled approximately $386,000 from Contracting by forging or altering various checks from that account over the course of approximately two years, from January 2008 through December 2009. In February 2010, Contracting notified Capital One of its losses due to Hafner-Milazzo’s forgeries. Thereafter, pursuant to a clause in the two promissory notes, Capital One declared all amounts due and payable because an event had occurred which adversely affected Contracting’s ability to repay its indebtedness.

The plaintiffs commenced this action against Hafner-Milazzo and Capital One to recover damages resulting from Hafner-Milazzo’s fraud and forgeries, and to prevent Capital One from enforcing any claims against them with respect to the loans. The plaintiffs alleged, inter alia, that Capital One had failed to use ordinary care in paying on the forged checks and failed to comply with its own regulations in handling Contracting’s accounts. In its answer, Capital One interposed several counterclaims to recover amounts due under the loans and Clemente’s guaranty.

Capital One moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against it and on its counterclaims. The Supreme Court granted those branches of Capital One’s motion.

Under New York’s Uniform Commercial Code, a bank is strictly liable to its customer when it pays a check on a forged signature (see UCC 4-401; Monreal v Fleet Bank, 95 NY2d 204, 207; Robinson Motor Xpress, Inc. v HSBC Bank, USA, 37 AD3d 117, 119). The bank avoids such liability, however, when it makes statements of the account and the allegedly forged items available to the customer, and the customer fails to report the alleged forgery to the bank within one year (see UCC 4-406[4]; Putnam Rolling Ladder Co. v Manufacturers Hanover Trust Co., 74 NY2d 340, 345; Robinson Motor Xpress, Inc. v HSBC Bank, USA, 37 AD3d at 119). The one-year period begins to run when a bank “”sends to its customer a statement of account accompanied by items paid in good faith in support of the debit entries or holds the statement and items pursuant to a request or instructions of its customer or otherwise in a reasonable manner makes the statement and items available to the customer”” (UCC 4-406[1]; see Woods v MONY Legacy Life Ins. Co., 84 NY2d 280, 285-286; Robinson Motor Xpress, Inc. v HSBC Bank, USA, 37 AD3d at 119; Matin v Chase Manhattan Bank, 10 AD3d 447, 448). The parties may shorten the one-year notice period by agreement (see Gluck v JPMorgan Chase Bank, 12 AD3d 305, 306; Catalano v Marine Midland Bank, 303 AD2d 617, 618; Josephs v Bank of N.Y., 302 AD2d 318). Here, the parties, by agreement, shortened the one-year period to 14 days.

Capital One established its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it by submitting evidence that the monthly account statements were “”made available”” to the plaintiffs within the meaning of UCC 4-406(4), thus triggering the 14-day notice requirement in the parties’ agreement, and that the plaintiffs failed to discover and report each of the alleged forgeries within the applicable 14-day period (see Woods v MONY Legacy Life Ins. Co., 84 NY2d at 285-286; Josephs v Bank of N.Y., 302 AD2d at 318). In opposition, the plaintiffs failed to raise a triable issue of fact. Therefore, the Supreme Court properly granted that branch of Capital One’s motion which was for summary judgment dismissing the complaint insofar as asserted against it.

Further, Capital One established its prima facie entitlement to judgment as a matter of law on its counterclaims by demonstrating the existence of two notes executed by Contracting, Clemente’s guaranty, the terms of repayment, and defaults under the terms of the notes (see New York Community Bank v Fessler, 88 AD3d 667, 668; North Fork Bank Corp. v Graphic Forms Assoc., Inc., 36 AD3d 676, 676-677). In opposition, the plaintiffs failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted that branch of Capital One’s motion which was for summary judgment on its counterclaims.

The parties’ remaining contentions are without merit.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

DeEttore v DeEttore       2011-03682         2012 NY Slip Op 07618    “Decided on November 14, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

RANDALL T. ENG, P.J.

MARK C. DILLON

RUTH C. BALKIN

CHERYL E. CHAMBERS, JJ.

 

2011-03682

(Index No. 952/09)

 

 

[*1]Robert DeEttore, Sr., appellant,

 

v

 

Jeane DeEttore, respondent.

 

 

 

 

 

Jonathan D. Katz, New Paltz, N.Y., for appellant.

Michael J. O’Connor, Poughkeepsie, N.Y., for respondent.

 

 

DECISION & ORDER

In a matrimonial action in which the parties were divorced by judgment entered September 29, 2010, the plaintiff former husband appeals, as limited by his brief, from so much of an order of the Supreme Court, Dutchess County (Sproat, J.), dated February 10, 2011, as denied his motion to vacate or modify a “”Court Order Acceptable for Processing”” of the same court dated October 18, 2010.

ORDERED that the order dated February 10, 2011, is affirmed insofar as appealed from, with costs.

The plaintiff contends that stated portions of a “”Court Order Acceptable for Processing”” (hereinafter COAP) dated February 10, 2011, directing the equitable distribution of his benefits under the Federal Civil Service Retirement System, gave the defendant survivorship benefits that were not agreed upon by the parties in their stipulation of settlement made in open court. The term “”court order acceptable for processing”” is a term used under the Federal Civil Service Retirement System for an order dividing pension assets (5 CFR 838.302). It is similar in effect to a Qualified Domestic Relations Order (see Elwell v Elwell, 34 AD3d 1337, 1338).

We agree with the plaintiff that the parties’ stipulation of settlement is silent as to the contested survivorship benefits, and therefore cannot be read to include them (see Kazel v Kazel, 3 NY3d 331, 334-335; McCoy v Feinman, 99 NY2d 295, 302-303; Casella v Casella, 306 AD2d 800, 801; Moran v Moran, 289 AD2d 544; Von Buren v Von Buren, 252 AD2d 950, 951; Wieners v Wieners, 239 AD2d 493, 494; De Gaust v De Gaust, 237 AD2d 862, 863). However, the contested survivorship benefits were incorporated into the judgment of divorce, and the husband never moved to resettle the judgment.

The purpose of a retirement benefits order such as the subject COAP is to distribute benefits in accordance with the underlying stipulation or judgment of divorce (see Kazel v Kazel, 3 NY3d at 334; McCoy v Feinman, 99 NY2d at 304). Here, since the subject COAP reflects the terms of the divorce judgment, the Supreme Court properly denied the plaintiff’s motion to vacate or modify it.

ENG, P.J., DILLON, J.P., BALKIN and CHAMBERS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Deutsche Bank Natl. Trust Co. v Haller    2011-07930         2012 NY Slip Op 07619    “Decided on November 14, 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.

 

2011-07930

2011-07931

(Index No. 8739/08)

 

 

[*1]Deutsche Bank National Trust Company, etc., respondent,

 

v

 

Laura A. Haller, et al., defendants, Andrew J. Homar, appellant.

 

 

 

 

 

Joseph E. Ruyack III, Chester, N.Y., for appellant.

McGlinchey Stafford, PLLC, Albany, N.Y. (Marc J. Lifset

and Laura M. Greco of counsel), for

respondent.

 

 

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Andrew J. Homar appeals (1), as limited by his brief, from stated portions of an order of the Supreme Court, Orange County (McGuirk, J.), dated June 30, 2011, which, inter alia, granted that branch of the plaintiff’s motion which was for summary judgment on the complaint insofar as asserted against him, and denied that branch of his cross motion which was pursuant to CPLR 3211 to dismiss the complaint insofar as asserted against him, and (2) from an order of the same court, also dated June 30, 2011, which denied his motion for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the first 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 the complaint insofar as asserted against the defendant Andrew J. Homar, and substituting therefor a provision denying that branch of the plaintiff’s motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements; and it is further,

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

In January 2008, the defendants Andrew J. Homar (hereinafter the appellant) and Laura A. Haller defaulted on a note and mortgage they had executed in favor of Ameriquest Mortgage Company (hereinafter AMC). In August 2008, Deutsche Bank National Trust Company, as Trustee, in trust for the registered holders of Ameriquest Mortgage Securities, Inc., Asset-Backed Pass-Through Certificates, Series 2004-R2 (hereinafter the plaintiff), commenced this action to foreclose on the mortgage. In the complaint, the plaintiff alleged that it was the owner of the note and mortgage based on a written assignment. In his answer, the appellant alleged, as an affirmative defense, that the plaintiff lacked standing to commence the action.

After the commencement of the action, the plaintiff and the appellant entered into a forbearance agreement, pursuant to which the appellant acknowledged that he and Haller were in default and agreed to a schedule of payments designed to bring the payments due under the note and mortgage current. The forbearance agreement provided that the terms of the mortgage remained in full force and effect. [*2]

In June 2009, the plaintiff moved for summary judgment on the complaint on the ground that the appellant had defaulted on his obligations under the forbearance agreement. The appellant opposed the motion and cross-moved, inter alia, pursuant to CPLR 3211 to dismiss the complaint insofar as asserted against him on various grounds, including that the plaintiff lacked standing to commence this action. While the motion and cross motion were pending, the appellant also moved for summary judgment dismissing the complaint insofar as asserted against him. In an order dated June 30, 2011, the Supreme Court, inter alia, granted that branch of the plaintiff’s motion which was for summary judgment on the complaint insofar as asserted against the appellant, and denied that branch of the appellant’s cross motion which was pursuant to CPLR 3211 to dismiss the complaint insofar as asserted against him (hereinafter the first order). In a separate order, also dated June 30, 2011, the Supreme Court denied the appellant’s motion for summary judgment (hereinafter the second order).

As to the first order, contrary to the Supreme Court’s determination, the plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of law. First, the plaintiff did not submit sufficient evidence to demonstrate that it had standing to commence this action. Where, as here, standing is put into issue by the defendant, the plaintiff must prove its standing in order to be entitled to relief (see U.S. Bank, N.A. v Callymore, 68 AD3d 752, 753; Wells Fargo Bank Minn, N.A. v Mastropaolo, 42 AD3d 239, 242). In a mortgage foreclosure action, “”[a] plaintiff has standing where it is the holder or assignee of both the subject mortgage and of the underlying note at the time the action is commenced”” (HSBC Bank USA v Hernandez, 92 AD3d 843, 843; see U.S. Bank, N.A. v Collymore, 68 AD3d at 753; Countrywide Home Loans, Inc. v Gress, 68 AD3d 709, 709). “” Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation'”” (HSBC Bank USA v Hernandez, 92 AD3d at 844, quoting Collymore, 68 AD3d at 754; see Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 108). Here, the evidence submitted by the plaintiff in support of its motion did not demonstrate that the note was physically delivered to it prior to the commencement of the action. “”The affidavit from the plaintiff’s servicing agent did not give any factual details of a physical delivery of the note and, thus, failed to establish that the plaintiff had physical possession of the note prior to commencing this action”” (HSBC Bank USA v Hernandez, 92 AD3d at 844).

Moreover, contrary to the plaintiff’s contention, it failed to demonstrate that it was the holder of the note and mortgage by virtue of the endorsement of the note or a written assignment. While the copy of the note submitted by the plaintiff in support of its motion included an endorsement to the plaintiff, the endorsement is undated, and it was not included in the copy of the note which was annexed to the plaintiff’s complaint. Thus, it is not clear whether the endorsement was effectuated prior to the commencement of this action. The plaintiff also submitted a document in support of its motion purporting to be a written assignment of the note and mortgage to the plaintiff by “”Ameriquest Mortgage Company: by CitiResidential Lending Inc. as attorney in fact”” (hereinafter Citi). However, the plaintiff failed to produce any evidence of Citi’s authority to assign the note and mortgage on AMC’s behalf (see Bank of N.Y. v Silverberg, 86 AD3d 274, 281-283; Aurora Loan Servs., LLC v Weisblum, 85 AD3d at 109).

In support of its assertion that the appellant defaulted on his obligations under the forebearance agreement, the plaintiff submitted the affidavit of its servicing agent, who asserted that in 2009 the plaintiff advanced more than $20,000 to pay delinquent property taxes on the premises in order to avoid an imminent tax sale. Under the mortgage, the appellant agreed to pay the lender “”all amounts necessary to pay for taxes.”” While the appellant concedes that he did not pay the taxes or reimburse the plaintiff for the advance, the mortgage provides that the lender was to set up an escrow account for this purpose. There are questions of fact on this record as to whether such an account was ever created. Moreover, the mortgage requires the lender to provide notice of the default which states “”the promise or agreement that [the borrower] failed to keep or the default that has occurred”” and the action that the borrower must take in order to cure the default. The plaintiff failed to establish that it provided the appellant with a notice informing him that he defaulted by virtue of his failure to pay the taxes on the property or to repay the plaintiff for the advance. The Supreme Court therefore erred in granting that branch of the plaintiff’s motion which was for summary judgment on the complaint insofar as asserted against the appellant. [*3]

However, contrary to the appellant’s contention, the Supreme Court properly denied that branch of his cross motion which was pursuant to CPLR 3211 to dismiss the complaint insofar as asserted against him. As discussed above, questions of fact exist as to whether the note was physically delivered to the plaintiff prior to the commencement of the action, when the note was endorsed, and whether Citi had the authority to assign the note and mortgage on behalf of AMC (see Deutsche Bank Natl. Trust Co. v Rivas, 95 AD3d 1061; HSBC Bank USA v Hernandez, 92 AD3d at 844).

Finally, as to the second order, the appellant moved for summary judgment dismissing the complaint on the ground, inter alia, that the plaintiff fabricated the documents it submitted to demonstrate that it had standing to commence this action. We agree with the Supreme Court that the appellant failed to establish his prima facie entitlement to judgment as a matter of law. Therefore, the Supreme Court properly denied his motion for summary judgment (see Alvarez v Prospect Hosp., 68 NY2d 320, 324).

The appellant’s remaining contentions are without merit.

ENG, P.J., SKELOS, LOTT and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Deutsche Bank Natl. Trust Co. v Hunter 2011-03017         2012 NY Slip Op 07781    “Decided on November 14, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

PETER B. SKELOS, J.P.

ANITA R. FLORIO

PLUMMER E. LOTT

ROBERT J. MILLER, JJ.

 

2011-03017

(Index No. 17692/07)

 

 

[*1]Deutsche Bank National Trust Company, etc., respondent,

 

v

 

Stefane Hunter, appellant, et al., defendants.

 

 

 

 

 

Patrick H. Jones, New York, N.Y., for appellant.

 

 

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Stefane Hunter appeals from an order of the Supreme Court, Westchester County (Liebowitz, J.), entered February 23, 2011, which denied her motion, inter alia, pursuant to CPLR 5015(a)(3) and (4) to vacate a judgment of foreclosure and sale of the same court dated July 13, 2009, entered upon her default in appearing or answering the complaint.

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

The defendant moved, inter alia, pursuant to CPLR 5015(a)(3) and (4) to vacate a judgment of foreclosure and sale that was entered upon her default in appearing or answering the complaint. The defendant argued that the plaintiff lacked standing to commence the foreclosure action, and therefore, the plaintiff committed fraud upon the court and the court lacked subject matter jurisdiction over the matter. The Supreme Court denied the motion, and the defendant appeals.

The defendant’s arguments pursuant to CPLR 5015(a)(3) and (4) are without merit, as the record contains no evidence of fraud or misrepresentation, and an alleged lack of standing is not a jurisdictional defect (see Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 244). Accordingly, the Supreme Court properly denied the defendant’s motion, inter alia, to vacate the judgment of foreclosure and sale.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Doe v McCormack           2011-10754         2012 NY Slip Op 07620    “Decided on November 14, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

RANDALL T. ENG, P.J.

MARK C. DILLON

PLUMMER E. LOTT

JEFFREY A. COHEN, JJ.

 

2011-10754

(Index No. 17871/10)

 

 

[*1]John Doe, etc., et al., respondents,

 

v

 

Dennis M. McCormack, et al., defendants, Saint Michael’s Abbey of Norbertine Fathers, appellant.

 

 

 

 

 

Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White

Plains, N.Y. (Glen Feinberg of counsel), for appellant.

Foley & Associates, P.C., New York, N.Y. (J. Garth Foley

of counsel), for respondents.

 

 

DECISION & ORDER

In an action, inter alia, to recover damages for intentional torts and negligence, the defendant Saint Michael’s Abbey of Norbertine Fathers appeals from an order of the Supreme Court, Nassau County (Adams, J.), entered October 21, 2011, which denied its motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against it for lack of personal jurisdiction, with leave to renew upon the completion of discovery.

ORDERED that the order is affirmed, with costs.

“”As the party seeking to assert personal jurisdiction, the plaintiff bears the ultimate burden on this issue”” (Marist Coll. v Brady, 84 AD3d 1322, 1322-1323; see Shore Pharm. Providers, Inc. v Oakwood Care Ctr., 65 AD3d 623, 624). However, “”in opposing a motion to dismiss pursuant to CPLR 3211(a)(8) on the ground that discovery on the issue of personal jurisdiction is necessary, plaintiffs need not make a prima facie showing of jurisdiction, but instead must only set forth a sufficient start, and show[ ] their position not to be frivolous'”” (Shore Pharm. Providers, Inc. v Oakwood Care Ctr., Inc., 65 AD3d at 624, quoting Peterson v Spartan Indus., 33 NY2d 463, 467). “”[T]he jurisdictional issue is likely to be complex. Discovery is, therefore, desirable, indeed may be essential, and should quite probably lead to a more accurate judgment than one made solely on the basis of inconclusive preliminary affidavits”” (Peterson v Spartan Indus., 33 NY2d at 467).

Under the particular circumstances of this case, the plaintiffs established that facts “” may exist'”” to exercise personal jurisdiction over the defendant Saint Michael’s Abbey of Norbertine Fathers (hereinafter the Abbey defendant), and has made a “” sufficient start'”” to warrant disclosure on the issue of personal jurisdiction (Marist Coll. v Brady, 84 AD3d at 1323, quoting Peterson v Spartan Indus., 33 NY2d at 467; see Lettieri v Cushing, 80 AD3d 574, 575; Morgan v A Better Chance, Inc., 70 AD3d 481). [*2]

The Abbey defendant’s remaining contentions either are without merit or have been rendered academic by our determination.

Accordingly, the Supreme Court properly denied the Abbey defendant’s motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against it for lack of personal jurisdiction, with leave to renew upon the completion of discovery.

ENG, P.J., DILLON, LOTT and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Doe v McCormack           2011-11858         2012 NY Slip Op 07621    “Decided on November 14, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

RANDALL T. ENG, P.J.

MARK C. DILLON

PLUMMER E. LOTT

JEFFREY A. COHEN, JJ.

 

2011-11858

(Index No. 17871/10)

 

 

[*1]John Doe, etc., et al., respondents,

 

v

 

Dennis M. McCormack, et al., defendants, Brigittine Monks Priory of Our Lady of Consolation, appellant.

 

 

 

 

 

Chesney & Nicholas, LLP, Baldwin, N.Y. (John F. Janowski of

counsel), for appellant.

 

 

DECISION & ORDER

In an action, inter alia, to recover damages for intentional torts and negligence, the defendant Brigittine Monks Priory of Our Lady of Consolation appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Adams, J.), dated June 1, 2011, as denied its motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against it, with leave to renew upon the completion of discovery.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the defendant Brigittine Monks Priory of Our Lady of Consolation pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against it is granted.

“”As the party seeking to assert personal jurisdiction, the plaintiff bears the ultimate burden on this issue”” (Marist Coll. v Brady, 84 AD3d 1322, 1322-1323; see Shore Pharm. Providers, Inc. v Oakwood Care Ctr. Inc., 65 AD3d 623, 624). However, “”in opposing a motion to dismiss pursuant to CPLR 3211(a)(8) on the ground that discovery on the issue of personal jurisdiction is necessary, plaintiffs need not make a prima facie showing of jurisdiction, but instead must only set forth a sufficient start, and show[ ] their position not to be frivolous'”” (Shore Pharm. Providers, Inc. v Oakwood Care Ctr., Inc., 65 AD3d at 624, quoting Peterson v Spartan Indus., 33 NY2d 463, 467). The party opposing the motion “”need only demonstrate that facts may exist’ whereby to defeat the motion. It need not be demonstrated that they do exist”” (Peterson v Spartan Indus., 33 NY2d at 466).

Under the particular circumstances of this case, the plaintiffs’ opposition to the appellant’s motion to dismiss the complaint insofar as asserted against it failed to demonstrate that facts may exist to exercise personal jurisdiction over the appellant (see Daniel B. Katz & Assoc. Corp. v Midland Rushmore, LLC, 90 AD3d 977) and, thus, the plaintiffs failed to make a sufficient start to warrant further discovery on the issue of personal jurisdiction (see SNS Bank v Citibank, 7 AD3d 352, 353-354; cf. Marist Coll. v Brady, 84 AD3d at 1322). Accordingly, the Supreme Court should have granted the appellant’s motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against it. [*2]

ENG, P.J., DILLON, LOTT and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Ferguson v TEMCO          2011-06020         2012 NY Slip Op 07622    “Decided on November 14, 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.

 

2011-06020

(Index No. 32092/04)

 

 

[*1]Selma Ferguson, respondent,

 

v

 

TEMCO, appellant.

 

 

 

 

 

Lester Schwab Katz & Dwyer, LLP, New York, N.Y. (Steven B.

Prystowsky and David H. Motola of counsel), for appellant.

Dinkes & Schwitzer (Pollack, Pollack, Isaac & De Cicco,

New York, N.Y. [Brian J. Isaac and

Kenneth J. Gorman], 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, Kings County (Saitta, J.), dated May 19, 2011, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

“”Because a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party”” (Espinal v Melville Snow Contrs., 98 NY2d 136, 138; see Benavides v 30 Brooklyn, LLC, 96 AD3d 889). A contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party (see Espinal v Melville Snow Contrs., 98 NY2d at 138; Benavides v 30 Brooklyn, LLC, 96 AD3d at 889). An exception to the general rule exists where the contractor “”launches an instrument of harm or creates or exacerbates a hazardous condition”” (Benavides v 30 Brooklyn, LLC, 96 AD3d at 890; see Wheaton v East End Commons Assoc., LLC, 50 AD3d 675, 677; see also Espinal v Melville Snow Contrs., 98 NY2d at 140).

Here, in support of its motion for summary judgment dismissing the complaint, the defendant was required to establish, prima facie, that it did not create or exacerbate the alleged dangerous condition (see Benavides v 30 Brooklyn, LLC, 96 AD3d 889). The defendant failed to meet this burden.

Since the defendant failed to meet its initial burden, the sufficiency of the plaintiff’s opposition papers need not be considered (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851).

The defendant’s remaining contentions are without merit.

Accordingly, the Supreme Court properly denied the defendant’s motion for summary judgment dismissing the complaint.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Garcia-Rosales v Bais Rochel Resort         2011-08710         2012 NY Slip Op 07623    “Decided on November 14, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

ANITA R. FLORIO, J.P.

THOMAS A. DICKERSON

SANDRA L. SGROI

ROBERT J. MILLER, JJ.

 

2011-08710

(Index No. 7253/09)

 

 

[*1]Ernesto Garcia-Rosales, appellant,

 

v

 

Bais Rochel Resort, et al., respondents.

 

 

 

 

 

Lever & Stolzenberg, LLP, White Plains, N.Y. (Terrence James

Cortelli of counsel), for appellant.

Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White

Plains, N.Y. (Glen Feinberg and

Richard E. Lerner of counsel), for

respondents.

 

 

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Orange County (Bartlett, J.), dated June 22, 2011, as granted 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), and denied his cross motion for summary judgment on the issue of liability on those causes of action.

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

The defendants established their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging violations of Labor Law § 240(1) by showing that the plaintiff’s accident did not occur while he was engaged in an activity enumerated in Labor Law § 240(1), but rather, occurred while he was performing routine maintenance (see Owens v City of New York, 72 AD3d 775; Thompson v 1701 Corp., 51 AD3d 904; Azad v 270 5th Realty Corp., 46 AD3d 728).

The plaintiff failed to raise a triable issue of fact in opposition to that branch of the defendants’ motion. The correction sheet attached to the plaintiff’s deposition transcript presented feigned issues of fact tailored to avoid the consequences of his earlier deposition testimony, and was, therefore, insufficient to raise a triable issue of fact (see Thompson v Commack Multiplex Cinemas, 83 AD3d 929; Smith v Costco Wholesale Corp., 50 AD3d 499; Guevara v Zaharakis, 303 AD2d 555). The correction sheet contained no statement of reasons for making the corrections (see CPLR 3116[a]; Shell v Kone El. Co., 90 AD3d 890; Thompson v Commack Multiplex Cinemas, 83 AD3d at 930; Smith v Costco Wholesale Corp., 50 AD3d at 501; Dima v Morrow St. Assoc., LLC, 31 AD3d 697). The plaintiff’s affidavit also presented feigned issues of fact designed to avoid the consequences of his earlier deposition testimony, and was likewise insufficient to raise a triable issue of fact (see Vela v Tower Ins. Co. of N.Y., 83 AD3d 1050; Blochl v RT Long Is. Franchise, LLC, 70 AD3d 993; Goberdhan v Waldbaum’s Supermarket, 295 AD2d 564; Bloom v La Femme Fatale of [*2]Smithtown, 273 AD2d 187). Therefore, the Supreme Court properly granted that branch of the defendants’ motion which was for summary judgment dismissing the cause of action alleging violations of Labor Law § 240(1), and properly denied that branch of the plaintiff’s cross motion which was for summary judgment on the issue of liability on that cause of action.

The defendants also established their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging violations of Labor Law § 241(6). The defendants established, prima facie, that the work being performed by the plaintiff at the time of the accident was not connected to construction, excavation, or demolition work, as defined in the Industrial Code (see 12 NYCRR 23-1.4[b][13], [16], [19]). Routine maintenance is not within the ambit of Labor Law § 241(6) (see Peluso v 69 Tiemann Owners Corp., 301 AD2d 360). Therefore, Labor Law § 241(6) is inapplicable (see Esposito v New York City Indus. Dev. Agency, 1 NY3d 526; Nagel v D & R Realty Corp., 99 NY2d 98, 102; Gallello v MARJ Distribs., Inc., 50 AD3d 734; Wein v Amato Props., LLC, 30 AD3d 506).

In opposition, the plaintiff failed to raise a triable issue of fact as to whether the work he was performing at the time of the accident came within the ambit of Labor Law § 241(6). Therefore, the Supreme Court properly granted that branch of the defendants’ motion which was for summary judgment dismissing the cause of action alleging violations of Labor Law § 241(6), and properly denied that branch of the plaintiff’s cross motion which was for summary judgment on the issue of liablity on that cause of action.

In light of our determination, we need not reach the plaintiff’s remaining contentions.

FLORIO, J.P., DICKERSON, SGROI and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Garden Homes Mobile Home Park Co. LP v Patel               2010-08746         2012 NY Slip Op 07624    “Decided on November 14, 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

SHERI S. ROMAN, JJ.

 

2010-08746

(Index No. 6371/09)

 

 

[*1]Garden Homes Mobile Home Park Company Limited Partnership, respondent,

 

v

 

Dahyabhai Patel, et al., appellants, et al., defendant. Paul D. Stone, P.C., Tarrytown, N.Y., for appellants. Vincent J. Catalano, Jr., Poughkeepsie, N.Y., for respondent.

 

 

 

 

 

DECISION & ORDER

In an action for a judgment declaring that the plaintiff has a prescriptive easement, the defendants Dahyabhai Patel and Chandrika Patel appeal, as limited by their brief, from so much of an order of the Supreme Court, Dutchess County (Sproat, J.), dated July 23, 2010, as granted that branch of the plaintiff’s motion which was for summary judgment declaring that the plaintiff has a prescriptive easement allowing it to maintain pipes over their property for the discharge of effluent from the plaintiff’s sand filtration system.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiff’s motion which was for summary judgment declaring that the plaintiff has a prescriptive easement allowing it to maintain pipes over the property of the defendants Dahyabhai Patel and Chandrika Patel for the discharge of effluent from the plaintiff’s sand filtration system is denied.

A party claiming entitlement to an easement by prescription must demonstrate the adverse, open and notorious, and continuous use of the subject property for the prescriptive period (see Vitiello v Merwin, 87 AD3d 632, 633; Manouselis v Woodworth Realty, LLC, 83 AD3d 801), which is 10 years (see 315 Main St. Poughkeepsie, LLC v WA 319 Main, LLC, 62 AD3d 690, 691). “” [T]he right acquired by prescription is commensurate with the right enjoyed'”” (Thury v Britannia Acquisition Corp., 19 AD3d 586, 587, quoting Prentice v Geiger, 74 NY 341, 347; see Vitiello v Merwin, 87 AD3d at 633; Zutt v State of New York, 50 AD3d at 1133).

Here, the plaintiff could only acquire a prescriptive easement for the discharge of effluent which was equal to what was actually used during the prescriptive period. Although the plaintiff submitted evidence which established the adverse, open and notorious, and continuous use of the appellants’ land for the discharge of effluent during the prescriptive period, those submissions reveal the existence of triable issues of fact as to the extent of the actual use, and whether the actual use was enlarged within the prescriptive period. Since the plaintiff failed to establish the extent of the actual use during the prescriptive period, it failed to establish its entitlement to judgment as a matter of law (see Zutt v State of New York, 50 AD3d at 1133). Accordingly, the Supreme Court should have denied that branch of the plaintiff’s motion which was for summary judgment regardless [*2]of the sufficiency of the appellants’ opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

The appellants’ remaining contentions are without merit, and we decline the appellants’ invitation to search the record and to grant summary judgment in their favor.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Gentile v Gentile              2011-09008         2012 NY Slip Op 07625    “Decided on November 14, 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.

 

2011-09008

2012-01221

(Index No. 7261/11)

 

 

[*1]Dana Gentile, etc., appellant,

 

v

 

Louise H. Gentile, et al., respondents.

 

 

 

 

 

George S. Ballantoni, White Plains, N.Y., for appellant.

Frank P. Allegretti, Rye, N.Y., for respondents.

 

 

DECISION & ORDER

In an action to recover damages for alleged fraudulent conveyances in connection with a trust agreement, the plaintiff appeals (1), as limited by her brief, from so much of an order of the Supreme Court, Westchester County (Tolbert, J.), dated August 17, 2011, as granted that branch of the defendants’ motion which was to dismiss the complaint pursuant to CPLR 3211(a)(7), and denied her cross motion for leave to amend the complaint, and (2) from an order of the same court dated December 7, 2011, which denied her motion for leave to reargue.

ORDERED that the appeal from the order dated December 7, 2011, is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order dated August 17, 2011, is affirmed insofar as appealed from; and it is further,

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

The Supreme Court properly granted that branch of the defendants’ motion which was to dismiss the complaint pursuant to CPLR 3211(a)(7). The complaint failed to state a cause of action, since the alleged fraudulent conveyances took place more than 18 months before the plaintiff’s claims arose, and the complaint failed to allege facts that would support an inference that the conveyances evinced a fraudulent intent (see CPLR 3211[a][7]; Debtor and Creditor Law §§ 275, 276; Matter of Steinberg v Levine, 6 AD3d 620, 621; Dempster v Overview Equities, 4 AD3d 495, 498). In addition, under the circumstances of this case, the Supreme Court did not improvidently exercise its discretion in denying the plaintiff’s cross motion for leave to amend the complaint (see Smith-Hoy v AMC Prop. Evaluations, Inc., 52 AD3d 809; see also Matter of Doman, 68 AD3d 862).

DILLON, J.P., AUSTIN, SGROI and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Gilday v Suffolk County Natl. Bank           2011-11870         2012 NY Slip Op 07626    “Decided on November 14, 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.

 

2011-11870

(Index No. 33487/10)

 

 

[*1]John Gilday, etc., et al., appellants,

 

v

 

Suffolk County National Bank, respondent.

 

 

 

 

 

Lawler Mahon & Rooney, LLP, New York, N.Y. (Christopher S.

Rooney of counsel), and Richard S. Brook, Mineola, N.Y., for

appellants (one brief filed).

Balfe & Holland, P.C., Melville, N.Y. (Kevin Balfe and Lee E.

Riger of counsel), for respondent.

 

 

DECISION & ORDER

In an action to recover payment pursuant to a letter of credit, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Molia, J.), dated November 10, 2011, which denied their motion for summary judgment on the complaint.

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

The Electrical Industry Board of Nassau and Suffolk Counties, New York (hereinafter the EIB), administers employee benefit funds for members of the plaintiff Local 25, the International Brotherhood of Electrical Workers, AFL-CIO (hereinafter Local 25). As employers of Local 25 members, Elemco Testing Company, Inc., Elemco Electrical Construction Co., Inc., and Elemco Industries, Inc. (hereinafter collectively the Elemco parties), agreed to be bound by a collective bargaining agreement that required them to make weekly and monthly contributions to the EIB to fund various employee benefits, and to maintain a surety bond to secure such contributions. In November 2008, the Elemco parties filed a Chapter 11 bankruptcy petition in the United States District Court for the Eastern District of New York (hereinafter the Bankruptcy Court). At the time the bankruptcy petition was filed, the Elemco parties were allegedly in default of accrued but unpaid employee contributions in excess of $400,000, which included contributions to 401k retirement plans that they deducted from employee salaries.

During the course of the Bankruptcy Court proceeding, in June 2009 the Elemco parties’ primary lender, the defendant Suffolk County National Bank (hereinafter the Bank), agreed to issue a $50,000 letter of credit in favor of the plaintiffs, as beneficiaries, to substitute for the surety bond which the Elemco parties were required to maintain to secure payment of their employee benefit contributions. In accordance with the agreement, on June 15, 2009, the Bankruptcy Court issued an interim order which authorized the Elemco parties to borrow a $50,000 letter of credit for the benefit of the plaintiffs, to terminate either upon a sale of the Elemco parties’ assets, the Elemco parties obtaining a surety bond, or December 31, 2009.

More than two months later, on September 4, 2009, the Bank issued a letter of credit in favor of the plaintiffs, which provided for payment of the sum of $50,000 upon presentation of [*2]the instrument together with a sight draft and “”a final Order of the United States Bankruptcy Court certifying that Elemco Testing Company, Inc. has failed to satisfactorily remit funds due.”” By its stated terms, the letter of credit was to expire on September 4, 2010, one year after its issuance.

On September 1, 2010, three days before the stated expiration date of the letter of credit, the plaintiff John Gilday, the EIB’s executive director, presented the instrument to the Bank, accompanied by a signed sight draft and a final order of the Bankruptcy Court, dated August 10, 2010, which found that Elemco Testing Company, Inc., had “”failed to satisfactorily remit funds due to EIB.”” The Bank refused to make payment, taking the position that under the terms of the agreement reached in the Bankruptcy Court proceeding prior to the issuance of the letter of credit, as set forth in the Bankruptcy Court order dated June 15, 2009, the letter of credit had actually terminated on May 13, 2010, when the Bankruptcy Court authorized the Elemco parties to close on a sale of their assets. The plaintiffs then commenced this action seeking to recover payment pursuant to the letter of credit. After joinder of issue, the plaintiffs moved for summary judgment on the complaint. The Supreme Court denied the motion, concluding that there was an issue of fact as to whether the letter of credit had actually expired upon the sale of the Elemco parties’ assets. The plaintiffs appeal, and we reverse.

Letters of credit are commercial instruments that provide a beneficiary “”with a guaranteed means of payment from a creditworthy third party (the issuer) in lieu of relying solely on the financial status of a buyer or borrower (the applicant)”” (Nissho Iwai Europe v Korea First Bank, 99 NY2d 115, 119). Under a letter of credit, the issuer must honor a draft or demand for payment from the beneficiary so long as the documents presented conform to the terms of the letter of credit (see UCC § 5-108[a]; Gillman v Chase Manhattan Bank, 73 NY2d 1, 12; J & D Einbinder Assoc. v ICC Performance 3 Ltd. Partnership, 242 AD2d 366, 367). “”The issuer’s obligation to honor a properly presented draft is independent of any underlying contractual arrangement between the account party (i.e., its customer) and the beneficiary”” (Gillman v Chase Manhattan Bank, 73 NY2d at 12). This independence principle is codified in UCC § 5-103(d), which provides that the rights of a beneficiary under a letter of credit “”are independent of the existence, performance, or nonperformance of a contract or arrangement out of which the letter of credit arises or which underlies it, including contracts or arrangements between the issuer and the applicant”” (see Banco Nacional De Mexico, S.A., Integrante Del Grupo Financiero Banamex v Societe Generale, 34 AD3d 124, 128).

Furthermore, New York has “”long adhered to the principle that letters of credit must be strictly construed and performed in compliance with their stated terms””(Nissho Iwai Europe v Korea First Bank, 99 NY2d at 121; see United Commodities-Greece v Fidelity Intl. Bank, 64 NY2d 449, 455). “”The reason for this rule is rooted in the very purpose of a letter of credit: [b]y conditioning payment solely upon the terms set forth in the letter of credit, the justifications for an issuing bank’s refusal to honor the credit are severely restricted, thereby assuring the reliability of letters of credit as a payment mechanism'”” (Nissho Iwai Europe v Korea First Bank, 99 NY2d at 121, quoting Voest-Alphine Intl. Corp. v Chase Manhattan Bank, 707 F2d 680, 682).

Applying these principles here, the plaintiffs made a prima facie showing of their entitlement to judgment as a matter of law on the complaint by demonstrating that they presented the letter of credit to the Bank for payment prior to the expiration date set forth on the face of the instrument, and that their presentment conformed to the letter of credit by including a sight draft and a final order of the Bankruptcy Court certifying that Elemco Testing Company, Inc., “”has failed to satisfactorily remit funds due to EIB”” (see UCC § 5-108[a]; Imptex Intl. Corp. v HSBC Bank, U.S.A., N.A., 52 AD3d 215; Pacific Gas & Elec. Co. v Banca Nazionale Del Lavoro, S.p.A., 8 AD3d 76; J & D Einbinder Assoc. v ICC Performance 3 Ltd. Partnership, 242 AD2d at 368).

In opposition to the plaintiffs’ prima facie showing that they timely presented the letter of credit for payment together with the documents required by the terms of the instrument, the Bank failed to raise a triable issue of fact. The Bank opposed the motion by offering evidence that the Bankruptcy Court order authorizing the Elemco parties to borrow a $50,000 letter of credit provided, inter alia, for termination of the letter of credit upon the sale of the Elemco parties’ assets, which occurred in or around May 2010. However, the letter of credit created a distinct contractual relationship between the plaintiffs as beneficiaries and the Bank as issuer, which was independent [*3]of the Bankruptcy Court order authorizing the Elemco parties to obtain the letter of credit to provide security for the Elemco parties’ obligations under the collective bargaining agreement (see UCC § 5-103[d]; Nissho Iwai Europe v Korea First Bank, 99 NY2d at 120; First Commercial Bank v Gotham Originals, 64 NY2d 287, 294; Banco Nacional De Mexico, S.A. Integrante Del Grupo Financiero Banamex v Societe Generale, 34 AD3d at 128-129; Blonder & Co., Inc. v Citibank, N.A., 28 AD3d 180, 181). Thus, the fact that the Bankruptcy Court order set forth a termination date for the letter of credit that was at variance with the stated terms of the instrument itself is not a defense to the Bank’s refusal to make payment in accordance with its obligation to the plaintiffs. Accordingly, the plaintiffs’ motion for summary judgment on the complaint should have been granted (see Nissho Iwai Europe v Korea First Bank, 99 NY2d at 123-124; Pacific Gas & Elec. Co. v Banca Nazionale Del Lavoro, S.p.A., 8 AD3d 76; J & D Einbinder Assoc. v ICC Performance 3 Ltd. Partnership, 242 AD2d at 368).

ENG, P.J., SKELOS, LOTT and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

“Going 2 Extremes, Inc. v Hartford Fin. Servs. Group, Inc.”            2011-06062         2012 NY Slip Op 07627    “Decided on November 14, 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.

 

2011-06062

(Index No. 5127/06)

 

 

[*1]Going 2 Extremes, Inc., et al., appellants,

 

v

 

Hartford Financial Services Group, Inc., defendant, Trumbull Insurance Company, respondent.

 

 

 

 

 

Tully Rinckey, PLLC, Albany, N.Y. (Douglas J. Rose of counsel),

for appellants.

Goldberg Segalla LLP, Buffalo, N.Y. (Carrie Appler and Daniel

W. Gerber of counsel), for respondent.

 

 

DECISION & ORDER

In an action to recover damages for breach of an insurance contract, the plaintiffs appeal from an order of the Supreme Court, Orange County (McGuirk, J.), dated March 21, 2011, which granted the motion of the defendant Trumbull Insurance Company for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

The Supreme Court properly granted the motion of the defendant Trumbull Insurance Company (hereinafter Trumbull) for summary judgment dismissing the complaint insofar as asserted against it. Trumbull established its prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiffs failed to submit a sworn proof-of-loss statement within 60 days after receiving a demand to do so, accompanied by a blank proof-of-loss form (see Insurance Law § 3407[a]; Anthony Marino Constr. Corp. v INA Underwriters Ins. Co., 69 NY2d 798, 800; Meserole Factory, LLC v Arch Ins. Group, 88 AD3d 967, 967; DeRenzis v Allstate Ins. Co., 256 AD2d 303, 304).

Contrary to the plaintiffs’ contention, they failed to raise a triable issue of fact as to whether they substantially complied with Trumbull’s demand for a sworn proof-of-loss statement (see Maleh v New York Prop. Ins. Underwriting Assn., 64 NY2d 613, 614; Darvick v General Acc. Ins. Co., 303 AD2d 540; Agora Intl. v Royal Ins. Co., 234 AD2d 489), or whether Trumbull waived the requirement to provide such a statement by repudiating liability (see generally Igbara Realty Corp. v New York Prop. Ins. Underwriting Assn., 63 NY2d 201, 217-218; cf. Matter of State Farm Ins. Co. v Domotor, 266 AD2d 219; Beckley v Ostego County Farmers Coop. Fire Ins. Co., 3 AD2d 190).

Accordingly, the Supreme Court properly granted Trumbull’s motion for summary judgment dismissing the complaint insofar as asserted against it. [*2]

SKELOS, J.P., LEVENTHAL, CHAMBERS and LOTT, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

“Gonzalez v Woodbourne Arboretum, Inc.”        2011-08936         2012 NY Slip Op 07628    “Decided on November 14, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

RANDALL T. ENG, P.J.

REINALDO E. RIVERA

L. PRISCILLA HALL

SANDRA L. SGROI, JJ.

 

2011-08936

(Index No. 18380/07)

 

 

[*1]Harold M. Gonzalez, etc., appellant-respondent,

 

v

 

Woodbourne Arboretum, Inc., et al., respondents- appellants, et al., defendant.

 

 

 

 

 

Kelner & Kelner, New York, N.Y. (Gail S. Kelner and Gerard K.

Ryan, Jr., of counsel), for appellant-respondent.

Flynn, Gibbons & Dowd, New York, N.Y. (Lawrence A. Doris

of counsel), for respondents-appellants.

 

 

DECISION & ORDER

In an action, inter alia, to recover damages for wrongful death, the plaintiff appeals from so much of an order of the Supreme Court, Suffolk County, (Jones, Jr., J.), dated July 28, 2011, as denied his motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) and granted those branches of the motion of the defendants Woodbourne Arboretum, Inc., and Woodbourne Cultural Nurseries, Inc., which were for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) insofar as asserted against them, and the defendants Woodbourne Arboretum, Inc., and Woodbourne Cultural Nurseries, Inc., cross-appeal from so much of the same order as denied that branch of their motion which was for summary judgment dismissing the complaint insofar as asserted against them on the ground that the action is barred by the Workers’ Compensation Law and granted the plaintiff’s cross motion for summary judgment dismissing their fourth and fifth affirmative defenses.

ORDERED that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

In June 2005, the decedent, Ciro A. Mata, was employed by nonparty Leonard Litwin to perform landscaping work on property owned by Litwin and property owned by the defendant Woodbourne Arboretum, Inc. (hereinafter the Arboretum), a corporation of which Litwin was president. On June 28, 2005, an employee of the defendant Woodbourne Cultural Nurseries, Inc. (hereinafter the Nursery), brought an irrigation device known as a “”water cannon”” to a garage located on the Arboretum’s grounds so that a mechanic employed by Litwin could help him replace the water cannon’s rear axle, which had worn thin, causing the machine to leak. At the end of the day, the two men working on replacing the axle asked the decedent to assist them by acting as a spotter while they moved the water cannon, which was approximately 10 to 12 feet tall and weighed more than one ton, off two jack stands in order to get it completely inside the garage for the night. Just after the move was completed, the water cannon tipped over and fell on the decedent, causing his death. After the accident, the decedent’s family received Workers’ Compensation benefits through an insurance [*2]policy maintained by Litwin. The plaintiff, as administrator of the decedent’s estate, subsequently commenced this action against, among others, the Nursery and the Arboretum (hereinafter together the defendants) alleging violations of Labor Law §§ 200, 240(1), and 246(1), and common-law negligence.

After the completion of discovery, the plaintiff moved for summary judgment on the issue of liability on the Labor Law § 240(1) cause of action, contending that the accident fell within the ambit of the statute because the water cannon was a structure undergoing repair which fell because it was hoisted in a dangerous manner. The defendants countered by jointly moving for summary judgment dismissing the complaint insofar as asserted against them on the ground that the action was barred by the Workers’ Compensation Law either because the decedent was their special employee, or because they were Litwin’s alter ego or joint venturer. In the alternative, the defendants argued that the plaintiff’s Labor Law § 240(1) cause of action should be dismissed because the work being performed on the water cannon constituted routine maintenance which was not covered by the statute. The defendants also contended that the plaintiff’s Labor Law § 241(6) cause of action should be dismissed because the accident did not occur in an area where construction, excavation, or demolition work was being performed. The plaintiff then cross-moved for summary judgment dismissing the defendants’ fourth affirmative defense that the action was barred by the Workers’ Compensation Law, and fifth affirmative defense that the decedent was the defendants’ special employee. The Supreme Court denied the plaintiff’s motion for summary judgment on the issue of liability on the Labor Law § 240(1) cause of action, and granted those branches of the defendants’ motion which were for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) causes of action insofar as asserted against them. The Supreme Court also denied that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against them on the ground that the action was barred by the Workers’ Compensation Law, and granted the plaintiff’s cross motion to dismiss their fourth and fifth affirmative defenses, concluding that the evidence established that the decedent was employed solely by Litwin, that the defendants were corporate entities distinct from Litwin, and that the decedent was not the defendants’ special employee because they did not direct and control his work.

The Supreme Court properly denied the plaintiff’s motion for summary judgment on the issue of liability on the Labor Law § 240(1) cause of action, and granted those branches of the defendants’ motion which were for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) causes of action insofar as asserted against them. “”While the reach of section 240(1) is not limited to work performed on actual construction sites . . . the task in which an injured employee was engaged must have been performed during the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure'”” (Martinez v City of New York, 93 NY2d 322, 326). Here, the deposition testimony upon which both the plaintiff and the defendants relied in support of their respective motions established that the decedent was assisting workers who were engaged in replacing a component of the water cannon which had worn thin, causing the machine, which remained operable, to leak. The replacement of a worn-out component in an operable piece of machinery constitutes “”routine maintenance”” rather than “”repair”” or “”alteration,”” and thus falls outside the protective scope of Labor Law § 240(1) (see Abbatiello v Lancaster Studio Assoc., 3 NY3d 46, 53; Esposito v New York City Indus. Dev. Agency, 1 NY3d 526, 528; Gleason v Gottlieb, 35 AD3d 355, 356; Wein v Amato Props., LLC, 30 AD3d 506, 507; Jones v Village of Dannemora, 27 AD3d 844, 845-846; Detraglia v Blue Circle Cement Co., 7 AD3d 872, 873). Furthermore, since the decedent’s accident did not occur in connection with construction, demolition, or excavation work, Labor Law § 241(6) does not apply (see Esposito v New York City Indus. Dev. Agency, 1 NY3d at 528; Nagel v D & R Realty Corp., 99 NY2d 98; Enos v Werlatone, Inc., 68 AD3d 713, 715; Hurtado v Interstate Materials Corp., 56 AD3d 722; Irizarry v State of New York, 35 AD3d 665, 666; Goad v Southern Elec. Intl., 304 AD2d 887, 888).

The Supreme Court also properly determined that the action is not barred by the Workers’ Compensation Law. Workers’ Compensation Law §§ 11 and 29(6) provide that an employee who elects to receive compensation benefits may not sue his or her employer in an action at law for the injuries sustained. These exclusivity provisions have also been applied to shield persons or entities other than the injured plaintiff’s direct employer from suit, including special [*3]employers (see Fung v Japan Airlines Co., Ltd., 9 NY3d 351, 357-358; Thompson v Grumman Aerospace Corp., 78 NY2d 553, 557). Thus, an injured person who elects to receive Workers’ Compensation benefits from his or her general employer is barred from maintaining a personal injury action against his or her special employer (see Fung v Japan Airlines Co., Ltd., 9 NY3d at 358-359; Thompson v Grumman Aerospace Corp., 78 NY2d at 557). A significant and weighty factor in determining whether a special employment relationship exists is “”who controls and directs the manner, details and ultimate result of the employee’s work”” (Thompson v Grumman Aerospace Corp., 78 NY2d at 558; see Persad v Abreu, 84 AD3d 1046, 1047). The exclusivity provisions of the Workers’ Compensation Law also extend to entities which are alter egos of, or engaged in a joint venture with, the injured worker’s employer (see Samuel v Fourth Ave. Assoc., LLC, 75 AD3d 594, 595; Degale-Selier v Preferred Mgt. & Leasing Corp., 57 AD3d 825, 826).

The defendants failed to make a prima facie showing that the decedent was their special employee at the time of his death because they did not submit sufficient evidence to establish, inter alia, that they controlled and directed the manner, details, and ultimate result of his work (see Persad v Abreau, 84 AD3d at 1047; D’Alessandro v Aviation Constructors, Inc., 83 AD3d 769, 771; George v IBC Sales Corp., 76 AD3d 950, 952-953; Franco v Kaled Mgt. Corp., 74 AD3d 1142, 1143; Pena v Automatic Data Processing, Inc., 73 AD3d 724, 725). The defendants’ evidentiary submissions were also insufficient to establish that the Workers’ Compensation Law bars this action because they were alter egos of the decedent’s employer Litwin, or engaged in a joint venture with Litwin (see Andrade v Brookwood Communities, Inc., 97 AD3d 711; Slikas v Cyclone Realty, LLC, 78 AD3d 144, 150-151; Lee v Arnan Dev. Corp., 77 AD3d 1261, 1262-1263; Samuel v Fourth Ave. Assoc., LLC, 75 AD3d at 595; Haracz v Cee Jay, Inc., 74 AD3d 1147, 1148; Longshore v Davis Sys. of Capital District, 304 AD2d 964, 965-966). Conversely, in support of his cross motion to dismiss the defendants’ fourth and fifth affirmative defenses, the plaintiff established his prima facie entitlement to judgment as a matter of law by demonstrating that the decedent, who received his salary and benefits from Litwin and was supervised by another Litwin employee, was not the defendants’ special employee (see Digirolomo v Goldstein, 96 AD3d 992, 994; Charles v Broad St. Dev., LLC, 95 AD3d 814, 816), and that the defendants were not Litwin’s alter egos or engaged in a joint venture with him (see Longshore v Davis Sys. of Capital District, 304 AD2d at 966; Devorin v One Wall St. Corp., 210 AD2d 37). In opposition to the plaintiff’s prima facie showing, the defendants failed to raise an issue of fact. Accordingly, the Supreme Court properly denied that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against them on the ground that the action is barred by the Workers’ Compensation Law, and granted the plaintiffs’ cross motion for summary judgment dismissing their fourth and fifth affirmative defenses.

ENG, P.J., RIVERA, HALL and SGROI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Grafstein v Schwartz      2011-01562         2012 NY Slip Op 07629    “Decided on November 14, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

RUTH C. BALKIN, J.P.

L. PRISCILLA HALL

LEONARD B. AUSTIN

SANDRA L. SGROI, JJ.

 

2011-01562

2011-04037

(Index No. 22043/08)

 

 

[*1]Norman Grafstein, respondent,

 

v

 

Richard Schwartz, et al., appellants, et al., defendants (and another action).

 

 

 

 

 

Richman & Levine, P.C., Garden City, N.Y. (Keith H. Richman

and Seth Levine of counsel), for appellants.

Ackerman, Levine, Cullen, Brickman & Limmer, LLP, Great

Neck, N.Y. (John M. Brickman, Todd

H. Hesekiel, and Benjamin S. Kaplan

of counsel), for respondent.

 

 

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract and fraud, the defendants Richard Schwartz, Marie Neubert, and North American Enclosures, Inc., appeal from (1) a decision of the Supreme Court, Nassau County (Bucaria, J.), entered December 10, 2010, and (2) an order of the same court dated March 7, 2011, which granted the plaintiff’s motion pursuant to CPLR 6201(1) for an order of attachment against the real and personal property of the defendant Richard Schwartz in the sum of $2 million, and thereupon directed the Sheriff of the County Nassau, or any county of the State of New York, to levy upon the real and personal property of the defendant Richard Schwartz in order to satisfy the order of attachment of $2 million.

ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision (see Schicchi v Green Constr. Corp., 100 AD2d 509); and it is further,

ORDERED that the appeals by the defendants Marie Neubert and North American Enclosures, Inc., are dismissed, as those defendants are not aggrieved by the order appealed from (see CPLR 5511); and it is further,

ORDERED that the order is reversed insofar as appealed from by the defendant Richard Schwartz, on the law, with one bill of costs, and the plaintiff’s motion pursuant to CPLR 6201(1) for an order of attachment against the real and personal property of the defendant Richard Schwartz in the sum of $2 million is denied.

Attachment is considered a harsh remedy and CPLR 6201 is strictly construed in favor of those against whom it may be employed (see J.V.W. Inv. Ltd. v Kelleher, 41 AD3d 233; Glazer & Gottlieb v Nachman, 234 AD2d 105; Michaels Elec. Supply Corp. v Trott Elec., 231 AD2d 695). Although the plaintiff established that the defendant Richard Schwartz was a nondomiciliary residing without the state (see CPLR 6201[1]), he failed to show a probability of success on the merits on his claims against that defendant (see CPLR 6212[a]; Shisgal v Brown, 3 AD3d 434; Societe Generale Alsacienne De Banque, Zurich v Flemigdon Dev. Corp., 118 AD2d 769, 774). [*2]Accordingly, the Supreme Court erred in granting the plaintiff’s motion pursuant to CPLR 6201(1) for an order of attachment against the real and personal property of the defendant Richard Schwartz in the sum of $2 million.

BALKIN, J.P., HALL, AUSTIN and SGROI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Headley v New York City Tr. Auth.            2011-04579         2012 NY Slip Op 07630    “Decided on November 14, 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.

 

2011-04579

(Index No. 33087/08)

 

 

[*1]Doreen Headley, appellant,

 

v

 

New York City Transit Authority, et al., respondents.

 

 

 

 

 

Gary B. Pillersdorf & Associates, P.C., New York, N.Y. (Paul A.

Hayt of counsel), for appellant.

Wallace D. Gossett, New York, N.Y. (Armienti, DeBellis,

Guglielmo & Rhoden, LLP [Vanessa M.

Corchia], of counsel), for respondents.

 

 

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Ash, J.), dated April 7, 2011, as denied her cross motion for summary judgment on the issue of liability.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the plaintiff’s cross motion for summary judgment on the issue of liability is granted.

The plaintiff was a passenger on a bus operated by the defendant Vincent P. Washington and owned by the defendant New York City Transit Authority. The plaintiff testified at her deposition that she saw Washington start to eat a piece of candy, and begin to choke immediately thereafter. Washington subsequently lost control of the bus and collided with another bus which was stopped at a bus stop, and then with a light pole on the sidewalk. The plaintiff allegedly sustained injuries as a result, and thereafter commenced this action against the defendants. In the order appealed from, the Supreme Court, inter alia, denied the plaintiff’s cross motion for summary judgment on the issue of liability.

“”The doctrine of collateral estoppel . . . 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”” (Ryan v New York Tel. Co., 62 NY2d 494, 500; see Lester v New York State Off. of Parks Recreation, & Historic Preserv., 87 AD3d 561, 563; Mose v Sangiovanni, 84 AD3d 1041). Collateral estoppel effect will be given only to matters actually litigated and determined in a prior action or proceeding (see Kaufman v Eli Lilly & Co., 65 NY2d 449, 456; Lester v New York State Off. of Parks Recreation, & Historic Preserv., 87 AD3d at 563; Simpson v Alter, 78 AD3d 813, 814). It must be shown that the identical issue was decided in the prior action or proceeding, is decisive in the present action, and that the party to be precluded from relitigating the issue had a full and fair opportunity to contest it (see Kaufman v Eli Lilly & Co., 65 NY2d at 455; Lester v New York State Off. of Parks Recreation, & Historic Preserv., 87 AD3d at 563; Nachum v Ezagui, 83 AD3d 1017). [*2]

Here, the plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability by demonstrating, pursuant to the doctrine of collateral estoppel, that the defendants were precluded from litigating the issue of their liability with respect to the subject accident (see Kaufman v Eli Lilly & Co., 65 NY2d 449; Ryan v New York Tel. Co., 62 NY2d 494; JPMorgan Chase Bank v Ezagui, 90 AD3d 714). Specifically, the plaintiff submitted an order dated May 14, 2010, from another action commenced by a fellow bus passenger, and involving the same accident, wherein that plaintiff’s motion for summary judgment on the issue of liability against the defendants was granted.

In opposition, the defendants failed to raise a triable issue of fact. The defendants relied upon, inter alia, an order dated January 29, 2010, from a separate action commenced by yet another fellow bus passenger, and also involving the same accident, wherein that plaintiff’s motion for summary judgment on the issue of liability against the defendants was denied. However, in an order dated July 9, 2012, the Supreme Court, upon renewal, granted that plaintiff’s motion for summary judgment on the issue of liability against the defendants. This Court may, in general, take judicial notice of matters of public record (see e.g. Hunter v New York, Ontario & W. R.R. Co., 116 NY 615, 621-622; Matter of Winona Pi., 86 AD3d 542, 543; Matter of Santiago v New York State Div. of Parole, 78 AD3d 953; Matter of Fells v Hansell, 77 AD3d 941, 942; High v City of White Plains, 227 AD2d 525; Matter of Chasalow v Board of Assessors of County of Nassau, 176 AD2d 800, 804). Since the order dated July 9, 2012, in effect, vacated the order dated January 29, 2010, the defendants have not shown the existence of conflicting orders on the issue of their liability to the plaintiff herein so as to avoid the application of collateral estoppel (see Creinis v Hanover Ins. Co., 59 AD3d 371, 376; cf. Gaston v American Tr. Ins. Co., 11 NY3d 866).

Accordingly, the Supreme Court should have granted the plaintiff’s cross motion for summary judgment on the issue of liability.

SKELOS, J.P., LEVENTHAL, CHAMBERS and LOTT, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

HSBC Mtge. Corp. (USA) v Pascoe            2011-05930         2012 NY Slip Op 07631    “Decided on November 14, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

PETER B. SKELOS, J.P.

RUTH C. BALKIN

PLUMMER E. LOTT

ROBERT J. MILLER, JJ.

 

2011-05930

(Index No. 24113/10)

 

 

[*1]HSBC Mortgage Corporation (USA), appellant,

 

v

 

John Pascoe, etc., et al., defendants, Joseph P. Delgado, et al., respondents.

 

 

 

 

 

Phillips Lytle LLP, Buffalo, N.Y. (Preston L. Zarlock, Jennifer A.

Beckage, and Andrew J. Wells of counsel), for appellant.

The Dorf Law Firm, LLP, Mamaroneck, N.Y. (Jonathan B.

Nelson and Jessica J. Kastner of

counsel), for respondents.

 

 

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Lewis, J.), dated April 15, 2011, which granted the motion of the defendants Joseph P. Delgado and Justine Fasciano for summary judgment dismissing the complaint insofar as asserted against them and to vacate a notice of pendency filed in connection with the subject property.

ORDERED that the order is affirmed, with costs.

The Real Property Actions and Proceedings Law provides, with respect to credit line mortgages, that a mortgagee of real property must execute a satisfaction of mortgage upon written request and full payment of the mortgage obligation (see RPAPL 1921[1]; HSBC Bank, USA v Pugkhem, 88 AD3d 649, 650). “”A letter requesting that a mortgagee close a credit line and send a satisfaction of the mortgage . . . will satisfy the statutory requirement of a written request for a satisfaction”” (HSBC Bank, USA v Pugkhem, 88 AD3d at 650 [citations omitted]; see Merrill Lynch Equity Mgt. v Kleinman, 246 AD2d 884, 885).

In support of their motion, inter alia, for summary judgment dismissing the complaint insofar as asserted against them, the defendants Joseph P. Delgado and Justine Fasciano (hereinafter together the moving defendants) demonstrated their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them, and to vacate a notice of pendency filed in connection with the subject property, by establishing that the plaintiff accepted the payoff check, which was accompanied by a written request to close the line of credit and send a satisfaction of the mortgage (see RPAPL 1921[1]; Merrill Lynch Equity Mgt. v Kleinman, 246 AD2d at 885-886; cf. HSBC Bank, USA v Pugkhem, 88 AD3d at 651; Matter of Reitman v Wachovia Natl. Bank, N.A., 49 AD3d 759, 760). In opposition to the moving defendants’ prima facie showing, the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 326). [*2]

Contrary to the plaintiff’s contention, the moving defendants’ motion was not premature (see CPLR 3212[f]; Buchinger v Jazz Leasing Corp., 95 AD3d 1053; Savage v Quinn, 91 AD3d 748, 750).

The plaintiff’s remaining contention is without merit.

Accordingly, the Supreme Court properly granted the moving defendants’ motion for summary judgment dismissing the complaint insofar as asserted against them and to vacate the notice of pendency filed in connection with the subject property.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Jacobs v Nussbaum         2012-01472         2012 NY Slip Op 07632    “Decided on November 14, 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.

 

2012-01472

(Index No. 25451/06)

 

 

[*1]Percy Jacobs, respondent,

 

v

 

Milton Nussbaum, et al., appellants, et al., defendants.

 

 

 

 

 

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

Danner of counsel), for appellants.

The Jacob D. Fuchsberg Law Firm, LLP, New York, N.Y.

(Leslie Kelmachter and Christopher Nyberg

of counsel), for respondent.

 

 

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendants Milton Nussbaum and Sarah Nussbaum appeal, by permission, from an order of the Supreme Court, Kings County (Schack, J.), dated November 22, 2011, which granted the plaintiff’s application for additional time to retain expert witnesses and provide expert witness disclosure pursuant to CPLR 3101(d) and, thereupon, adjourned their motion for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs.

“”[A] party’s failure to disclose its experts pursuant to CPLR 3101(d)(1)(i) prior to the filing of a note of issue and certificate of readiness does not divest a court of the discretion to consider an affirmation or affidavit submitted by that party’s experts in the context of a timely motion for summary judgment”” (Rivers v Birnbaum, ___ AD3d ___, 2012 NY Slip Op 06935 [2d Dept 2012]). Here, considering all of the relevant circumstances, the Supreme Court providently exercised its discretion in granting the plaintiff’s application for additional time to retain expert witnesses and provide expert witness disclosure pursuant to CPLR 3101(d) (id. at *; Hayden v Gordon, 91 AD3d 819, 820; Ocampo v Pagon, 68 AD3d 1077, 1077-1078).

The appellants’ remaining contentions are without merit.

ENG, P.J., SKELOS, LOTT and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino [*2]

Clerk of the Court”

“””John Doe 1,”” v Board of Educ. of Greenport Union Free Sch. Dist.”    2011-00483         2012 NY Slip Op 07633    “Decided on November 14, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

WILLIAM F. MASTRO, J.P.

CHERYL E. CHAMBERS

LEONARD B. AUSTIN

ROBERT J. MILLER, JJ.

 

2011-00483

(Index No. 5339/09)

 

 

[*1]””John Doe 1,”” etc., et al., respondents,

 

v

 

Board of Education of Greenport Union Free School District, et al., appellants, et al., defendant.

 

 

 

 

 

Congdon, Flaherty, O’Callaghan, Reid, Donlon, Travis &

Fishlinger, Uniondale, N.Y. (Christine Gasser of counsel), for

appellants.

Joseph W. Prokop, PLLC, Central Islip, N.Y., for

respondents.

 

 

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendants Board of Education of the Greenport Union Free School District, Gary Charters, Greenport Union Free School District, and Charles Kozora appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Jones, Jr., J.), entered December 2, 2010, as, upon granting the plaintiffs’ cross motion for leave to serve and file a second amended complaint, denied those branches of their motion which were pursuant to CPLR 3211(a)(7) to dismiss the causes of action sounding in vicarious liability and negligent hiring and supervision insofar as asserted against them in the second amended complaint, or alternatively, pursuant to CPLR 3211(c) for summary judgment dismissing those causes of action insofar as asserted against them in the second amended complaint.

ORDERED that the order is modified, on the law, by deleting the provisions thereof denying those branches of the motion which were pursuant to CPLR 3211(a)(7) to dismiss the causes of action sounding in vicarious liability and negligent hiring and supervision insofar as asserted against the appellants in the second amended complaint, and substituting therefor a provision granting those branches of the motion; as so modified, the order is affirmed insofar as appealed from, with costs to the appellants.

The infant plaintiff “”John Doe 1″” (hereinafter the infant plaintiff) was a student in the defendant Greenport Union Free School District (hereinafter the school district), when the defendant Maria Commins, a teacher’s aide employed by the school district, allegedly engaged in an inappropriate sexual relationship with him. The infant plaintiff and his parents, “”John Doe 2″” and “”Jane Doe 1,”” commenced an action against Commins as well as the school district, the Board of Education of the Greenport Union Free School District, Gary Charters, the president of the school district, and Charles Kozora, the superintendent of the school district (hereinafter collectively the school defendants). The second amended complaint asserted various causes of action against the school defendants, including a cause of action alleging that the school defendants were vicariously liable for the actions of Commins, and were liable for the negligent hiring and supervision of Commins. At a hearing held pursuant to General Municipal Law § 50-h, the infant plaintiff repeatedly and unequivocally testified that he first met Commins due to his friendship with her son, with whom he shared some classes, and that both the development of his relationship with Commins, [*2]as well as all of their sexual trysts, occurred off of school grounds and outside of school hours.

The school defendants moved pursuant to CPLR 3211(a)(7) to dismiss the second amended complaint insofar as asserted against them or, alternatively, pursuant to CPLR 3211(c) for summary judgment dismissing the second amended complaint insofar as asserted against them. The Supreme Court denied that branch of the motion which was for summary judgment, and granted that branch of the motion which was pursuant to CPLR 3211(a)(7) to dismiss all of the causes of action insofar as asserted against the school defendants except for those seeking recovery under theories of vicarious liability and negligent hiring and supervision. The school defendants appeal, and we modify.

As the plaintiffs correctly observe, summary judgment was unavailable to the school defendants, since the Supreme Court did not provide the requisite “”adequate notice”” (CPLR 3211[c]) of its intention to treat the CPLR 3211(a)(7) motion as one for summary judgment, and it cannot be said on this record that the parties deliberately charted a summary judgment course (see Mihlovan v Grozavu, 72 NY2d 506, 508). Hence, the relevant standard to be applied to this matter is that applicable to a CPLR 3211(a)(7) motion to dismiss (see Vecere v Estate of Arnold Berle, 91 AD3d 637; Velez v Captain Luna’s Mar., 74 AD3d 1191).

“”On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must afford the complaint a liberal construction, accept all facts as alleged in the complaint to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). However, where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether [the plaintiff] 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 Ginzburg, 43 NY2d 268, 274-275 [1977])”” (Fishberger v Voss, 51 AD3d 627, 628).

Here, the evidentiary material submitted on the school defendants’ motion demonstrated that the plaintiffs did not have a cause of action against them sounding in either vicarious liability or negligent hiring and supervision. Indeed, the infant plaintiff’s own testimony at the hearing pursuant to General Municipal Law § 50-h established that all of the improper acts by Commins took place off school premises and/or outside of school hours, when the school defendants had no custody or control of the infant plaintiff and no duty to monitor or supervise the conduct of Commins (see Pratt v Robinson, 39 NY2d 554, 560; Banks v New York City Dept. of Educ., 70 AD3d 988, 990). Moreover, the evidence demonstrated that the conduct of Commins was personally motivated, and constituted a complete departure from her duties as a school district employee, thereby negating any potential vicarious liability on the part of the school defendants for her tortious acts (see N.X. v Cabrini Med. Ctr., 97 NY2d 247, 251-252; Judith M. v Sisters of Charity Hosp., 93 NY2d 932, 933; Horvath v L & B Gardens, Inc., 89 AD3d 803, 803-804; Spielman v Carrino, 77 AD3d 816, 818).

Additionally, the evidence established that Commins was properly investigated prior to being hired, and that the school defendants had no notice of any propensity on her part to sexually assault students, and the plaintiffs did not allege that the school defendants knew or had reason to know of any improper behavior by Commins (see Boadnaraine v City of New York, 68 AD3d 1032, 1033; K.I. v New York City Bd. of Educ., 256 AD2d 189, 191-192). Similarly, there was no nexus between Commins’s employment and the sexual assaults, since they were separated by time, place, and the intervening independent acts of Commins (see Farrell v Maiello, 38 AD3d 592, 593; R. v R., 37 AD3d 577, 579; Anonymous v Dobbs Ferry Union Free School Dist., 290 AD2d 464, 465). Accordingly, the school defendants indisputably proved, through the submission of evidentiary material, that the plaintiffs did not have a cause of action against them. Consequently, the Supreme Court should have granted that branch of the school defendants’ motion which was to dismiss the remainder of the second amended complaint insofar as asserted against the school defendants (see [*3]Grant v Aurora Loan Servs., 88 AD3d 949, 950; Laxer v Edelman, 75 AD3d 584, 585-586; Fishberger v Voss, 51 AD3d at 628).

The plaintiffs did not demonstrate that further discovery might lead to relevant evidence sufficient to oppose the school defendants’ motion (see Kaplan v Roberts, 91 AD3d 827; Boadnaraine v City of New York, 68 AD3d at 1033).

MASTRO, J.P., CHAMBERS, AUSTIN and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

“Joylaine Realty Co., LLC v Samuel”          2011-08738         2012 NY Slip Op 07634    “Decided on November 14, 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.

 

2011-08738

(Index No. 8206/08)

 

 

[*1]Joylaine Realty Co., LLC, appellant,

 

v

 

Roshni Samuel, etc., respondent.

 

 

 

 

 

Richard Creditor, LLC, Forest Hills, N.Y., for appellant.

Cooper, Paroff, Cooper & Cook, Kew Gardens, N.Y. (Ira G.

Cooper of counsel), for respondent.

 

 

DECISION & ORDER

In an action to recover unpaid rent, the plaintiff appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Queens County (Shulman, J.), dated August 1, 2011, as, upon a decision of the same court dated March 21, 2011, made after a nonjury trial, is in favor of the defendant and against it dismissing the complaint.

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

“”[A] commercial tenant may be relieved of its obligation to pay the full amount of rent due where it has been actually or constructively evicted from either the whole or a part of the leasehold”” (Johnson v Cabrera, 246 AD2d 578, 578-579; see Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77; Dave Herstein Co. v Columbia Pictures Corp., 4 NY2d 117). “”A constructive eviction occurs where the landlord’s wrongful acts substantially and materially deprive the tenant of the beneficial use and enjoyment of the premises'”” (Johnson v Cabrera, 246 AD2d at 578, quoting Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d at 83; see Grammar v Turits, 271 AD2d 644, 645). Here, the repeated flooding of the subject premises substantially and materially deprived the defendant of the beneficial use and enjoyment of the premises, and the plaintiff failed to take any steps to correct the condition (see 801 S. Fulton Ave. Corp. v Radin, 138 AD2d 561, 563; see also King v 870 Riverside Dr. Hous. Dev. Fund Corp., 74 AD3d 494, 495; cf. 34-35th Corp. v 1-10 Indus. Assoc., LLC, 16 AD3d 579, 580).

Accordingly, the Supreme Court properly determined that a constructive eviction occurred, which suspended the defendant’s obligation to pay rent (see Johnson v Cabrera, 246 AD2d at 579; 801 S. Fulton Ave. Corp. v Radin, 138 AD2d at 563).

DILLON, J.P., BALKIN, LEVENTHAL and HALL, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Kelly v St. Francis Hosp. 2011-01863         2012 NY Slip Op 07635    “Decided on November 14, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

RANDALL T. ENG, P.J.

RUTH C. BALKIN

L. PRISCILLA HALL

SANDRA L. SGROI, JJ.

 

2011-01863

2011-01867

(Index No. 8465/07)

 

 

[*1]Michael Kelly, et al., appellants,

 

v

 

St. Francis Hospital, et al., respondents.

 

 

 

 

 

Laffan & Laffan, LLP, Mineola, N.Y. (Maura V. Laffan of

counsel), for appellants.

Santangelo, Benvenuto & Slattery (James W. Tuffin, Melville,

N.Y., of counsel), for respondent St.

Francis Hospital.

Furey, Furey, Leverage, Manzione, Williams & Darlington,

P.C., Hempstead, N.Y. (Kenya S.

Hargrove of counsel), for respondents

Harold A. Fernandez, B. Tabakin, and

S.H. Berkay.

 

 

DECISION & ORDER

In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Nassau County (Lally, J.), dated December 13, 2010, which granted the motion of the defendant St. Francis Hospital, and the separate motion of the defendants Harold A. Fernandez, B. Tabakin, and S.H. Berkay, to dismiss the complaint pursuant to CPLR 1021 insofar as asserted against each of them, and (2) a judgment of the same court dated January 24, 2011, which, upon the order, is in favor of all of the defendants and against them, dismissing the complaint.

ORDERED that the appeal from the order is dismissed, without costs or disbursements; and it is further,

ORDERED that the appeal from so much of the judgment as is in favor of the defendants and against the plaintiff Michael Kelly dismissing the complaint insofar as asserted by that plaintiff is dismissed, without costs or disbursements, as that plaintiff is deceased and no substitution for him has been made or sought; and it is further,

ORDERED that the judgment is affirmed insofar as reviewed on the appeal by the plaintiff Lori Camirand-Kelly, with one bill of costs payable by Lori Camirand-Kelly to the defendants appearing separately and filing separate briefs.

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), and because the plaintiff Michael Kelly is deceased and no substitution for him has been made or sought. The issues raised on the appeal by the plaintiff Lori Camirand-Kelly from the order are brought up for review and have been considered on her appeal from the judgment (see CPLR 5501[a][1]). [*2]

In this action, which was commenced in 2007, the plaintiff Michael Kelly sought to recover damages, inter alia, for medical malpractice, and his wife, the plaintiff Lori Camirand-Kelly, asserted a derivative cause of action to recover for loss of services. Several months later, Michael Kelly died. No motion for substitution was made and, three years later, the defendant St. Francis Hospital (hereinafter the hospital) moved, and the defendants Harold A. Fernandez, B. Tabakin, and S.H. Berkay (hereinafter collectively the physicians) separately moved, to dismiss the complaint pursuant to CPLR 1021 insofar as asserted against each of them. The Supreme Court granted the motions.

This Court is without jurisdiction over so much of the appeal as concerns the dismissal of the causes of action originally asserted by Michael Kelly, inasmuch as he is deceased and no substitution for him has been made or sought (see CPLR 1015[a]; 1021; Thomas v Benedictine Hosp., 8 AD3d 781, 782; Hyman v Booth Mem. Hosp., 306 AD2d 438; Schraven v Town of Tonawanda, 238 AD2d 952; cf. Giroux v Dunlop Tire Corp., 16 AD3d 1068, 1069).

The only argument Camirand-Kelly offers on appeal with respect to the dismissal of her derivative claim is without merit (cf. Sanders v New York City Hous. Auth., 85 AD3d 1005, 1006; Borruso v New York Methodist Hosp., 84 AD3d 1293, 1294-1295; Buckley v National Frgt., 220 AD2d 155, affd 90 NY2d 210).

Camirand-Kelly’s remaining contention is not properly before us (see Brown v Huntington Med. Group, 229 AD2d 458, 459).

ENG, P.J., BALKIN, HALL and SGROI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

“Klein v Metropolitan Child Servs., Inc.” 2011-03678         2012 NY Slip Op 07636    “Decided on November 14, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

RANDALL T. ENG, P.J.

REINALDO E. RIVERA

L. PRISCILLA HALL

SANDRA L. SGROI, JJ.

 

2011-03678

(Index No. 20969/09)

 

 

[*1]Lisa Klein, et al., respondents,

 

v

 

Metropolitan Child Services, Inc., etc., et al., appellants.

 

 

 

 

 

David Lenefsky, New York, N.Y. (Georgeanne O’Keefe of

counsel), for appellants.

Andrew J. Schatkin, Jericho, N.Y., for respondents.

 

 

DECISION & ORDER

In an action, inter alia, to recover damages for violation of Labor Law § 740 and intentional infliction of emotional distress, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Vaughan, J.), dated March 23, 2011, as denied their motion pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the defendants’ motion pursuant to CPLR 3211(a)(7) to dismiss the complaint is granted.

The plaintiff Lisa Klein (hereinafter the plaintiff), who was formerly employed as the Director of the defendant Metropolitan Child Services, Inc./Vernon Avenue Children’s School, LLC (hereinafter Metropolitan), commenced this action, inter alia, to recover damages for violation of Labor Law § 740, alleging that she was unlawfully terminated from her position in retaliation for “”reporting illegal and incorrect activities on the part of [the defendants Michael Koffler and Kevin McCarthy]””, who are, respectively, the Chief Executive Officer and Chief Financial Officer of Metropolitan. The plaintiff also asserted a cause of action alleging intentional infliction of emotional distress based upon her allegation that she “”suffered extreme and grievous mental distress [as a result of] the extreme and outrageous behavior of”” Koffler and McCarthy. The plaintiff Menachem Klein asserted a derivative cause of action seeking damages for the alleged loss of companionship and services of his wife. The defendants’ motion pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action was denied by the Supreme Court without explanation.

Labor Law § 740 prohibits an employer from taking “”any retaliatory personnel action against an employee”” who discloses to a supervisor or public body “”an activity, policy or practice of the employer that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety”” (Labor Law § 740[2][a]). There must be an actual violation of a law, rule, or regulation. An employee’s “”good faith, reasonable belief that a violation occurred is insufficient”” to satisfy the statute (Nadkarni v North Shore-Long Is. Jewish Health Sys., 21 AD3d 354, 355; see Bordell v General Elec. Co., 88 NY2d 869, 871; Berde v North Short-Long Is. Jewish Health Sys., Inc., 50 AD3d 834, 835; Khan v State Univ. of N.Y. Health [*2]Science Ctr. at Brooklyn, 288 AD2d 350). Additionally, the protection afforded by Labor Law § 740(2) “”is triggered only by a violation of a law, rule or regulation that creates and presents a substantial and specific danger to the public health and safety”” (Remba v Federation Empl. & Guidance Serv., 76 NY2d 801, 802; see Pipia v Nassau County, 34 AD3d 664, 665; Nadkarni v North Shore-Long Is. Jewish Health Sys., 21 AD3d at 355; Khan v State Univ. of N.Y. Health Science Ctr. at Brooklyn, 288 AD2d at 350; Easterson v Long Is. Jewish Med. Ctr., 156 AD2d 636, 637).

Here, although the complaint must be given the benefit of all favorable inferences at this stage in the proceedings (see Leon v Martinez, 84 NY2d 83, 87-88; Morales v Copy Right Inc., 28 AD3d 440), it nevertheless fails to state a cause of action. Other than the conclusory allegation that “”[by] Head Start Law, Mr. Koffler is not allowed to engage in nepotism,”” the complaint does not cite to any law, rule, or regulation which allegedly was actually violated by the defendants. Moreover, the complaint makes no allegation that the defendants’ conduct constituted a substantial and specific danger to the public health or safety (see Hughes v Gibson Courier Servs. Corp., 218 AD2d 684, 684-85; Lamagna v New York State Assn. for the Help of Retarded Children, 158 AD2d 588, 589). Indeed, inasmuch as the complained of conduct related mainly to alleged financial improprieties, it does not “”satisfy the element of a threat to public health and safety and, thus, cannot sustain a cause of action alleging a violation of Labor Law § 740″” (Tomo v Episcopal Health Servs. Inc., 85 AD3d 766, 768; see Remba v Federation Employment & Guidance Serv., 76 NY2d at 802; Pipia v Nassau County, 34 AD3d at 666; Smith v Angel Guardian Home, 263 AD2d 476; Kaganawicz v Booth Mem. Med. Ctr., 215 AD2d 530, 531; Lamagna v New York State Assn. for the Help of Retarded Children, 158 AD2d at 589).

Similarly, the complaint does not state a cause of action to recover damages for intentional infliction of emotional distress. The elements of intentional infliction of emotional distress are (1) extreme and outrageous conduct; (2) the intent to cause, or the disregard of a substantial likelihood of causing, severe emotional distress; (3) causation; and (4) severe emotional distress (see Howell v New York Post Co., 81 NY2d 115, 121; Andrews v Bruk, 220 AD2d 376, 376). The subject conduct must be “” so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community'”” (Murphy v American Home Prods. Corp., 58 NY2d 293, 303, quoting Restatement [Second] of Torts § 46, comment d; see Andrews v Bruk, 220 AD2d at 376-377). Furthermore, conclusory assertions are insufficient to set forth a cause of action sounding in the intentional infliction of emotional distress (see Welsh v Haven Manor Health Care Ctr., 15 AD3d 572).

Here, the cause of action alleging intentional infliction of emotional distress states little more than the conclusion that “”[plaintiff] suffered extreme and grievous mental distress [as a result of] the extreme and outrageous behavior of the defendants.”” Moreover, even accepting as true the allegations in the complaint regarding the defendants’ conduct (see Leon v Martinez, 84 NY2d at 87-88; McGuire v Sterling Doubleday Enters., L.P., 19 AD3d 660, 661), such conduct was not “”so outrageous in character, and so extreme in degree”” as to qualify as intentional infliction of emotional distress (see Murphy v American Home Prods. Corp., 58 NY2d at 303; Andrews v Bruk, 220 AD2d at 376-377; see also Welsh v Haven Manor Health Care Ctr., 15 AD3d at 572).

With respect to the derivative cause of action asserted on behalf of the plaintiff’s husband, Menachem Klein, we note that a spouse’s cause of action to recover for loss of services or consortium does not exist independent of the injured spouse’s right to maintain an action for injuries sustained (see Liff v Schildkrout, 49 NY2d 622, 632). Consequently, the derivative cause of action cannot survive the dismissal of the main claims for damages (see e.g., Cruz v City of New York, 302 AD2d 553, 554; Belanoff v Grayson, 98 AD2d 353, 358). Accordingly, the Supreme Court should have granted the defendants’ motion pursuant to CPLR 3211(a)(7) to dismiss the complaint.

ENG, P.J., RIVERA, HALL and SGROI, JJ., concur. [*3]

ENTER:

Aprilanne Agostino

Clerk of the Court”

“Klein v St. Cyprian Props., Inc.”                2011-08528         2012 NY Slip Op 07637    “Decided on November 14, 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.

 

2011-08528

(Index No. 20791/08)

 

 

[*1]John Klein, appellant,

 

v

 

St. Cyprian Properties, Inc., respondent, et al., defendants.

 

 

 

 

 

David M. Namm, P.C., Mineola, N.Y., for appellant.

 

 

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Velasquez, J.), dated July 11, 2011, which denied his motion for a default judgment of foreclosure and sale and, in effect, granted that branch of the cross motion of the defendant St. Cyprian Properties, Inc., which was pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against it as abandoned.

ORDERED that the order is reversed, on the law, with costs, that branch of the cross motion of the defendant St. Cyprian Properties, Inc., which was pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against it as abandoned is denied, and the matter is remitted to the Supreme Court, Kings County, for a determination on the merits of the plaintiff’s motion for a default judgment of foreclosure and sale and of that branch of the cross motion of the defendant St. Cyprian Properties, Inc., which was to extend its time to answer the complaint.

On July 15, 2008, the plaintiff commenced this action against several defendants, including the defendant St. Cyprian Properties, Inc. (hereinafter the defendant). The defendant failed to answer, appear, or move with respect to the complaint, and in September 2008, the plaintiff moved for an order of reference pursuant to Real Property Actions and Proceedings Law § 1321(1). The Supreme Court granted the motion and signed the order of reference on February 23, 2010, nearly 18 months later. The Referee issued a report dated June 14, 2010. In July 2010, the plaintiff moved for a default judgment of foreclosure and sale. In response, the defendant cross-moved pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against it as abandoned, or alternatively, to extend its time to answer the complaint. The Supreme Court denied the plaintiff’s motion for a default judgment of foreclosure and sale on the ground that he failed to comply with CPLR 3215(c) and, in effect, granted that branch of the defendant’s cross motion which was pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against it as abandoned.

In September 2008, when the plaintiff took the preliminary step toward obtaining a default judgment of foreclosure and sale by moving for an order of reference (see RPAPL 1321[1]), he initiated proceedings for entry of the default judgment of foreclosure and sale within one year of the defendant’s default and, thus, did not abandon the action (see CPLR 3215[c]; Pisciotta v Lifestyle Designs, Inc., 62 AD3d 850, 852; Icon Equip. Distribs. v Gordon Envtl. & Mech. Corp., 272 AD2d 579; Home Sav. of Am., F.A. v Gkanios, 230 AD2d 770). [*2]

Since the Supreme Court did not consider the merits of the plaintiff’s motion or that branch of the defendant’s cross motion which was to extend its time to answer the complaint, the matter must be remitted to the Supreme Court, Kings County, for a determination on the merits of the motion and that branch of the cross motion (see Allstate Ins. Co. v Nalbandian, 89 AD3d 648, 649).

DILLON, J.P., AUSTIN, SGROI and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Kollmar v Kollmar             2012-03276         2012 NY Slip Op 07638    “Decided on November 14, 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.

 

2012-03276

(Index No. 2101/08)

 

 

[*1]Erichsen Kollmar, respondent,

 

v

 

Eleanor Kollmar, appellant. Anthony A. Capetola, Williston Park, N.Y. (Joey Michaels of counsel), for appellant.

 

 

 

 

 

O’Neil & Burke, LLP, Poughkeepsie, N.Y. (William T. Burke of

counsel), for respondent.

 

 

DECISION & ORDER

In an action for a divorce and ancillary relief, the mother appeals, as limited by her brief, from so much of an order of the Supreme Court, Dutchess County (Sproat, J.), dated March 9, 2012, as, without a hearing, denied that branch of her motion which was, in effect, to modify the custody provisions of the parties’ stipulation of settlement dated April 10, 2009, so as to award her primary residential custody of the subject children.

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

Contrary to the mother’s contention, the Supreme Court properly denied, without a hearing, that branch of her motion which was to modify the custody provisions of the parties’ stipulation of settlement. “”Modification of an existing custody or visitation arrangement is permissible only upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the continued best interests and welfare of the child”” (Matter of Leichter-Kessler v Kessler, 71 AD3d 1148, 1148-1149; Matter of Grant v Hunter, 64 AD3d 779, 779 [internal quotation marks omitted]; Matter of Riedel v Riedel, 61 AD3d 979, 979 [internal quotation marks omitted]; see Sirabella v Sirabella, 95 AD3d 1296). “” A party seeking a change in visitation or custody is not automatically entitled to a hearing, but must make an evidentiary showing sufficient to warrant a hearing'”” (Sirabella v Sirabella, 95 AD3d at 1296, quoting Matter of Leichter-Kessler v Kessler, 71 AD3d at 1149; see Matter of Grant v Hunter, 64 AD3d at 779; Matter of Riedel v Riedel, 61 AD3d at 979). Here, the mother failed to make an evidentiary showing of a change in circumstances sufficient to warrant a hearing (see Sirabella v Sirabella, 95 AD3d at 1296-1297; Matter of Fitje v Fitje, 87 AD3d 599, 600; Matter of Deochand v Deochand, 80 AD3d 609, 610; Matter of Wakefield v Wakefield, 74 AD3d 1213; Matter of Grant v Hunter, 64 AD3d at 779; Matter of Blackstock v Price, 51 AD3d 914, 915; Matter of Davis v Venditto, 45 AD3d 837, 838).

ANGIOLILLO, J.P., AUSTIN, SGROI and MILLER, JJ., concur. [*2]

ENTER:

Aprilanne Agostino

Clerk of the Court”

Lapierre v Love 2011-08369         2012 NY Slip Op 07639    “Decided on November 14, 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.

 

2011-08369

(Index No. 5395/10)

 

 

[*1]Ludwyka Lapierre, respondent,

 

v

 

Penni Love, appellant.

 

 

 

 

 

Morris Duffy Alonso & Faley, New York, N.Y. (Anna J. Ervolina

and Andrea M. Alonso of counsel), for appellant.

Neil Moldovan, P.C., Carle Place, N.Y. (Ellen Zweig 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, Nassau County (Parga, J.), dated July 26, 2011, which denied her motion for summary judgment dismissing the complaint and granted the plaintiff’s cross motion for summary judgment on the issue of liability.

ORDERED that the order is affirmed, with costs.

“” A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence against the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision'”” (Volpe v Limoncelli, 74 AD3d 795, 795, quoting Klopchin v Masri, 45 AD3d 737, 737; 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; Perez v Roberts, 91 AD3d 620, 621; Kastritsios v Marcello, 84 AD3d 1174, 1174-1175). Here, in support of her cross motion for summary judgment on the issue of liability, the plaintiff established, prima facie, her entitlement to judgment as a matter of law by demonstrating that her vehicle was stopped when it was struck in the rear by the defendant’s vehicle.

In opposition, the defendant failed to raise a triable issue of fact. As properly found by the Supreme Court, under the doctrine of collateral estoppel, the defendant is precluded from asserting that, at the time of the accident, she was faced with an emergency situation which caused her to strike the plaintiff’s vehicle. “”Under the doctrine of collateral estoppel, a party is precluded 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'”” (Crystal Clear Dev., LLC v Devon Architects of N.Y., P.C., 97 AD3d 716, 717, quoting Ryan v New York Tel. Co., 62 NY2d 494, 500; see Cudar v Cudar, 98 AD3d 27, 31). At a previously held framed-issue hearing, the issue of whether the defendant was faced with an emergency situation was “”actually litigated, squarely addressed and [it was] specifically decided”” that the defendant did not face an emergency situation (Ross v Medical Liab. Mut. Ins. Co., 75 NY2d 825, 826). Accordingly, the Supreme Court properly denied the defendant’s motion for summary judgment dismissing the complaint and correctly granted the plaintiff’s cross motion for summary [*2]judgment on the issue of liability.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

“Legend Autorama, Ltd. v Audi of Am., Inc.”        2011-07531         2012 NY Slip Op 07640    “Decided on November 14, 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.

 

2011-07531

(Index No. 38667/08)

 

 

[*1]Legend Autorama, Ltd., plaintiff, Audi of Smithtown, Inc., et al., respondents,

 

v

 

Audi of America, Inc., a division of Volkswagen of America, Inc., appellant, et al., defendant.

 

 

 

 

 

Hogan Lovells US LLP, New York, N.Y. (John J. Sullivan, Eric

J. Stock, James Clare, James R. Vogler, pro hac vice, Steven J.

Yatvin, pro hac vice, and John C. DeMoulpied, pro hac vice, of

counsel), for appellant.

Robinson Brog Leinwand Greene Genovese & Gluck P.C.,

New York, N.Y. (Russell P. McRory

of counsel), for respondents.

 

 

DECISION & ORDER

In an action, inter alia, to recover damages for breach of fiduciary duty, the defendant Audi of America, Inc., a division of Volkswagen of America, Inc., appeals from an order of the Supreme Court, Suffolk County (Emerson, J.), dated July 14, 2011, which denied its motion for summary judgment dismissing the second amended 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 Audi of America, Inc., a division of Volkswagen of America, Inc., which was for summary judgment dismissing the third cause of action in the second amended complaint insofar as asserted against it and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, with one bill of costs to the defendant Audi of America, Inc., a division of Volkswagen of America, Inc.

The defendant Audi of America, Inc., a division of Volkswagen of America, Inc. (hereinafter Audi), is the United States importer and distributor of Audi-brand vehicles, and operates a network of approximately 265 dealers located throughout the country. The plaintiffs Audi of Smithtown, Inc., and Audi of Huntington, Inc. (hereinafter together the dealer plaintiffs) are two franchised Audi dealers in Suffolk County, which operate pursuant to identical Dealer Agreements with Audi. In 2007, Audi entered into a Dealer Agreement with Atlantic Imports, Inc. (hereinafter Atlantic), appointing it as an authorized Audi dealer in Suffolk County, to operate at a location within 13 miles of each of the dealer plaintiffs.

The dealer plaintiffs, among others, commenced this action against Audi, among others, alleging that the circumstances surrounding the appointment of Atlantic as a newly franchised dealer breached express terms of their Dealer Agreements with Audi, the covenant of good faith and fair dealing implied in those agreements, and Audi’s fiduciary obligations to them. Audi moved for summary judgment dismissing the second amended complaint insofar as asserted against it. While [*2]the motion was pending, the other plaintiffs discontinued their actions against Audi. The Supreme Court thereafter denied the motion, and Audi appeals.

The Supreme Court properly denied that branch of Audi’s motion which was for summary judgment dismissing, insofar as asserted against it, the second cause of action in the second amended complaint, which alleged breach of the express terms of the Dealer Agreements and breach of the covenant of good faith and fair dealing implied in those agreements. Implicit in every contract is a covenant of good faith and fair dealing, which encompasses any promise that a reasonable promisee would understand to be included (see Dalton v Educational Testing Serv., 87 NY2d 384, 389; New York Univ. v Continental Ins. Co., 87 NY2d 308, 318). The covenant embraces a pledge that “”neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract”” (Dalton v Educational Testing Serv., 87 NY2d at 389 [internal quotation marks omitted]). “”The duty of good faith and fair dealing, however, is not without limits, and no obligation can be implied that would be inconsistent with other terms of the contractual relationship'”” (id. at 389, quoting Murphy v American Home Prods. Corp., 58 NY2d 293, 304).

Contrary to Audi’s contention, the dealer plaintiffs’ claim that is based on the alleged breach of the covenant of good faith and fair dealing is not inconsistent with the nonexclusivity provision of the “”standard provisions”” that are incorporated into the Dealer Agreements. While Audi retained the discretion to add newly franchised dealers within the existing dealers’ territories, “”even an explicitly discretionary contract right may not be exercised in bad faith so as to frustrate the other party’s right to the benefit under the agreement”” (Richbell Info. Servs. v Jupiter Partners, 309 AD2d 288, 302; see Carvel Corp. v Diversified Mgmt. Group, Inc., 930 F2d 228, 232). Viewing the evidence in the light most favorable to the dealer plaintiffs (see Schaffe v SimmsParris, 82 AD3d 867), Audi failed to eliminate all material, triable issues of fact in connection with this issue. Thus, Audi failed to meet its burden of making a prima facie showing of entitlement to judgment as a matter of law on so much of the second cause of action as alleged a breach of the covenant of good faith and fair dealing, and that branch of the motion was properly denied (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Gjokaj v Fox, 25 AD3d 759).

Likewise, Audi failed to make a prima facie showing of entitlement to judgment as a matter of law dismissing so much of the second cause of action in the second amended complaint as alleged the breach of the express terms of the Dealer Agreements, including Audi’s obligation to “”actively assist Dealer in all aspects of Dealer’s Operations through such means as Audi considers appropriate.”” Audi submitted transcripts of depositions in which its executives testified that the normal approach to underperformance issues was to discuss such issues with the dealers and give them time to implement action plans prior to opening a newly franchised dealership. Audi also submitted testimony that such an approach was not followed here. Accordingly, Audi failed to meet its burden of eliminating all material, triable issues of fact on this claim and, as such, that branch of the motion was properly denied (see Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853; Gjokaj v Fox, 25 AD3d 759).

However, the Supreme Court should have granted that branch of Audi’s motion which was for summary judgment dismissing, insofar as asserted against it, the third cause of action in the second amended complaint, which alleged a breach of fiduciary duty. A conventional business relationship, without more, is insufficient to create a fiduciary relationship. Rather, a plaintiff must show special circumstances that transformed the parties’ business relationship to a fiduciary one (see AHA Sales, Inc. v Creative Bath Prods., Inc., 58 AD3d 6, 9; L. Magarian & Co. v Timberland Co., 245 AD2d 69). The general rule is that there is no fiduciary relationship between a franchisee and a franchisor (see Akkaya v Prime Time Transp., Inc., 45 AD3d 616; Wilmington Trust Co. v Burger King Corp., 34 AD3d 401; Marcella & Co. v Avon Prods., 282 AD2d 718; Bevilacque v Ford Motor Co., 125 AD2d 516, 519). While the relationship between automobile manufacturers and dealers is recognized as one characterized by a dealer’s dependency upon the manufacturer, this dominance, taken alone, is insufficient to establish a confidential relationship (see A. S. Rampell, Inc. v Hyster Co., 3 NY2d 369, 376). [*3]

On its motion, Audi established that the situation presented by this case is not one of the “”rare instances”” in which the terms of the franchise agreements and the nature and extent of the parties’ relationships may have created confidential relationships (Lake Erie Distribs. v Martlet Importing Co., 221 AD2d 954, 955; see Franklin Park Lincoln-Mercury, Inc. v Ford Motor Co., 2011 WL 5361738, 2011 US Dist LEXIS 125807 [ND Ohio]; cf. Zimmer-Masiello, Inc. v Zimmer, Inc., 159 AD2d 363; Matter of Sbarro Holding [Shien Tien Yuan], 111 Misc 2d 910, affd 91 AD2d 613). In opposition to this showing, the dealer plaintiffs failed to raise a triable issue of fact regarding the existence of a fiduciary duty.

Audi’s remaining contention is without merit.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Masotto v Village of Lindenhurst              2011-05666         2012 NY Slip Op 07641    “Decided on November 14, 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

SHERI S. ROMAN, JJ.

 

2011-05666

2011-10941

(Index No. 29906/09)

 

 

[*1]Linda Masotto, appellant,

 

v

 

Village of Lindenhurst, etc., respondent.

 

 

 

 

 

Kaplan & Kaplan, P.C., Melville, N.Y. (Susan R. Nudelman and

Steven L. Kaplan of counsel), for appellant.

O’Connor, O’Connor, Hintz & Deveney, LLP (Congdon,

Flaherty, O’Callaghan, Reid, Donlon, Travis

& Fishlinger, Uniondale, N.Y.

[Christine Gasser], of counsel), for

respondent.

 

 

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from (1) a judgment of the Supreme Court, Suffolk County (Gazzillo, J, ), entered May 13, 2011, which, upon an order of the same court entered April 13, 2011, granting the defendant’s motion for summary judgment dismissing the complaint, is in favor of the defendant and against her, dismissing the complaint, and (2) an order of the same court entered October 4, 2011, which denied her motion for leave to renew and reargue her opposition to the defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the appeal from so much of the order entered October 4, 2011, as denied that branch of the plaintiff’s motion which was for leave to reargue is dismissed; and it is further,

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

ORDERED that the order entered October 4, 2011, is affirmed insofar as reviewed; and it is further,

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

The appeal from so much of the order entered October 4, 2011, as denied that branch of the plaintiff’s motion which was for leave to reargue must be dismissed, as no appeal lies from an order denying reargument.

On December 24, 2008, the plaintiff allegedly was injured when she slipped and fell in a municipal parking lot owned by the defendant. At the time of the plaintiff’s fall, a prior written notice law was in effect (see Village Law § 4-402[g]; Code of the Village of Lindenhurst §§ 116-1, 6-628). [*2]

“”A municipality that has adopted a prior written notice law’ cannot be held liable for a defect within the scope of the law absent the requisite written notice, unless an exception to the requirement applies”” (Forbes v City of New York, 85 AD3d 1106, 1107; see Poirier v City of Schenectady, 85 NY2d 310; Hanover Ins. Co. v Town of Pawling, 94 AD3d 1055, 1056; Abano v Suffolk County Community Coll., 66 AD3d 719, 719; Katsoudas v City of New York, 29 AD3d 740, 741). Where, as here, a municipality has enacted a prior written notice law, it may not be subjected to liability for injuries caused by a defect which comes within the ambit of the law unless it has received written notice of the alleged defect or dangerous condition, or an exception to the written notice requirement applies (see Cuebas v City of Yonkers, 97 AD3d 779, 780; Braver v Village of Cedarhurst, 94 AD3d 933, 934). “”Recognized exceptions to the prior written notice requirement exist where the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a special benefit upon it”” (Miller v Village of East Hampton, 98 AD3d 1007, 1008).

Here, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not receive prior written notice of the frozen snow plow track upon which the plaintiff allegedly slipped and fell, as required by section 116-1 of the Code of the Village of Lindenhurst, and that it did not create the dangerous condition through an affirmative act of negligence (see Cuebas v City of Yonkers, 97 AD3d at 780).

In opposition, the plaintiff failed to raise a triable issue of fact, as her reliance on San Marco v Village/Town of Mount Kisco (16 NY3d 111) is misplaced. In contrast to the situation presented in San Marco, there is no evidence that the defendant’s snow removal efforts created any new, dangerous condition. The frozen snow plow track upon which the plaintiff allegedly fell was not caused by the defendant’s method of snow clearance, but was simply a remnant left by the snow removal machinery during the plowing operations of December 19, 2008. Moreover, the alleged failure by the defendant to remove every bit of snow and ice from the parking lot on December 19, 2008, is not actionable (see Zwielich v Incorporated Vil. of Freeport, 208 AD2d 920, 921), as a municipality’s failure to remove all snow and ice from a parking lot is passive in nature and does not constitute an affirmative act of negligence excepting it from prior written notice requirements (see Wohlars v Town of Islip, 71 AD3d 1007; Stallone v Long Is. R.R., 69 AD3d 705; Groninger v Village of Mamaroneck, 67 AD3d 733, affd 17 NY3d 125; Zweilich v Incorporated Vil. of Freeport, 208 AD2d at 921).

The plaintiff’s remaining contentions are without merit.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Mieles v Tarar    2011-05406         2012 NY Slip Op 07642    “Decided on November 14, 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.

 

2011-05406

(Index No. 7245/06)

 

 

[*1]Antonio Mieles, appellant,

 

v

 

Junaid Tarar, et al., defendants, Louis Vlahakis, respondent.

 

 

 

 

 

Daniel P. Buttafuoco & Associates, PLLC, Woodbury, N.Y. (Ellen

Buchholz of counsel), for appellant.

Stewart H. Friedman, New York, N.Y. (Thomas C. Awad and

Robert Horvat of counsel), for

respondent.

Brian J. McGovern, LLC, New York, N.Y. (Michael J. Liloia of

counsel), for defendants Junaid Tarar

and Fida Tarar.

 

 

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Lane, J.), dated April 13, 2011, as granted that branch of the motion of the defendant Louis Vlahakis which was for summary judgment dismissing the amended complaint insofar as asserted against him.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs payable by the respondent, and that branch of the motion of the defendant Louis Vlahakis which was for summary judgment dismissing the amended complaint insofar as asserted against him is denied.

On December 24, 2005, a vehicle owned by the defendant Fida Tarar and driven by the defendant Junaid Tarar struck a Lincoln Town Car (hereinafter the Town Car) owned by the defendant Louis Vlahakis and driven by nonparty Michael Illescas at the intersection of 36th Avenue and 32nd Street in Astoria, Queens. Junaid Tarar subsequently pleaded guilty to vehicular assault in the second degree and driving while intoxicated. As a result of the collision, several of the occupants of the Town Car were injured. The plaintiff, a passenger in the Town Car, commenced this action against, among others, Vlahakis, to recover damages for personal injuries he allegedly sustained in the accident. Vlahakis moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against him on the grounds that his vehicle was being operated by Illescas without his permission or consent at the time of the accident and, in any event, the sole proximate cause of the accident was Junaid Tarar’s failure to yield the right-of-way in violation of Vehicle and Traffic Law § 1142(a). The Supreme Court granted that branch of the motion.

Vlahakis failed to establish his prima facie entitlement to judgment as a matter of law on the issues of consent or the drivers’ comparative negligence (see Vinueza v Tarar,[*2]AD3d [decided herewith]).

In addition, denial of that branch of the motion was required because Vlahakis failed to append a complete set of the pleadings to his motion for summary judgment as required by CPLR 3212(b) (see Fiber Consultants, Inc. v Fiber Optek Interconnect Corp., 84 AD3d 1153; Matter of Fraternal Order of Eagles v Baord of Assessors, 73 AD3d 770, 771; Zellner v Tarnell, 54 AD3d 329, 329-330; Sendor v Chervin, 51 AD3d 1003, 1003; Thompson v Foreign Cars Ctr., Inc., 40 AD3d 965, 965; Matsyuk v Konkalipos, 35 AD3d 675, 675; Wider v Heller, 24 AD3d 433, 434; Sted Tenants Owners Corp. v Chumpitaz, 5 AD3d 663, 663). Accordingly, the Supreme Court should have denied that branch of Vlahakis’s motion which was for summary judgment dismissing the amended complaint insofar as asserted against him.

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

“National Grid Corporate Servs., LLC v LeSchack & Grodensky, P.C.”         2011-10908         2012 NY Slip Op 07643    “Decided on November 14, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

ANITA R. FLORIO, J.P.

THOMAS A. DICKERSON

SANDRA L. SGROI

ROBERT J. MILLER, JJ.

 

2011-10908

(Index No. 8330/09)

 

 

[*1]National Grid Corporate Services, LLC, appellant,

 

v

 

LeSchack & Grodensky, P.C., et al., respondents.

 

 

 

 

 

Cullen and Dykman LLP, Garden City, N.Y. (Peter J. Mastaglio of

counsel), for appellant.

Ruskin Moscou Faltischek, P.C., Uniondale, N.Y. (Mark S.

Mulholland and Thomas A. Telesca of

counsel), for respondents.

 

 

DECISION & ORDER

In an action, inter alia, for declaratory relief and to recover damages for breach of contract, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (Bucaria, J.), entered October 31, 2011, as denied that branch of its motion which was for summary judgment declaring that a memorandum of understanding dated December 17, 2008, which it entered into with the defendants, constitutes a special, as opposed to a general, retainer and that, as a consequence, the defendants, in connection with their third counterclaim, are only entitled to recovery of their fees in quantum meruit.

ORDERED that the order is affirmed insofar as appealed from, with costs, upon searching the record, summary judgment is awarded to the defendants declaring that the parties’ memorandum of understanding dated December 17, 2008, constitutes a general, as opposed to a special, retainer and that, as a consequence, the defendants, in connection with their third counterclaim, are not limited to recovery of their fees in quantum meruit, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment, inter alia, declaring that the memorandum of understanding constitutes a general, as opposed to a special, retainer and that, as a consequence, the defendants, in connection with their third counterclaim, are not limited to recovery of their fees in quantum meruit.

The plaintiff failed to establish its prima facie entitlement to judgment as a matter of law on its cause of action for a judgment declaring that the parties’ memorandum of understanding dated December 17, 2008 (hereinafter the MOU), constitutes a special, as opposed to a general, retainer and, thus, failed to establish that the defendant attorneys, in connection with their third counterclaim, are only entitled to recovery of their fees in quantum meruit. Accordingly, the Supreme Court properly denied that branch of the plaintiff’s motion which was for summary judgment on that cause of action, without regard to the sufficiency of the defendants’ opposition papers. [*2]

Moreover, this Court has the authority to search the record and award summary judgment to a nonmoving party with respect to an issue that was the subject of the motion before the Supreme Court (see CPLR 3212[b]; Cocom-Tambriz v Surita Demolition Contr., Inc., 84 AD3d 1300, 1301; Harsch v City of N.Y., 78 AD3d 781, 784). Contrary to the plaintiff’s contention, the MOU at issue was a general retainer (see Frank v Toymax Intl. Inc., 21 AD3d 399), as opposed to a special retainer (cf. Matter of Cooperman, 83 NY2d 465). Accordingly, upon searching the record, we award summary judgment to the defendants declaring that the MOU constitutes a general, as opposed to a special, retainer and that, as a consequence, the defendants, in connection with their third counterclaim, are not limited to recovery of their fees in quantum meruit.

Since this is, in part, a declaratory judgment action, the matter must be remitted to the Supreme Court, Nassau County, for the entry of a judgment, inter alia, making the appropriate declaration (see Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901).

FLORIO, J.P., DICKERSON, SGROI and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

“Navarro v PC Group, LLC”           2011-09254         2012 NY Slip Op 07644    “Decided on November 14, 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

SHERI S. ROMAN, JJ.

 

2011-09254

(Index No. 11789/09)

 

 

[*1]Erasmo Navarro, plaintiff,

 

v

 

PC Group, LLC, defendant, Trades Construction Services Corp., defendant third-party plaintiff-respondent; Mt. Hawley Insurance Company, third-party defendant-appellant (and a fourth-party action).

 

 

 

 

 

Kenney Shelton Liptak Nowak LLP, Buffalo, N.Y. (Timothy E.

Delahunt of counsel), for third-party defendant-appellant.

 

 

DECISION & ORDER

In an action to recover damages for personal injuries, and a third-party action for a judgment declaring that the third-party defendant is obligated to defend and indemnify the defendant third-party plaintiff in the main action, the third-party defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Bunyan, J.), dated August 2, 2011, as denied its motion for summary judgment declaring that it is not obligated to defend and indemnify the defendant third-party plaintiff in the main action, and granted that branch of the defendant third-party plaintiff’s cross motion which was for summary judgment declaring that it is so obligated.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the third-party defendant’s motion for summary judgment declaring that it is not obligated to defend and indemnify the defendant third-party plaintiff in the main action is granted, that branch of the defendant third-party plaintiff’s cross motion which was for summary judgment declaring that the third-party defendant is so obligated is denied, and the matter is remitted to the Supreme Court, Kings County, for the severance of the third-party action and the entry of a judgment declaring that the third-party defendant is not obligated to defend and indemnify the defendant third-party plaintiff in the main action.

In the course of the development of a residential property on Staten Island, the plaintiff, an employee of Total Building & Condo Maintenance, allegedly fell off a ladder and sustained injuries. The general contractor, the defendant third-party plaintiff, Trades Construction Services Corp. (hereinafter Trades), sought a defense and indemnification from its insurer, the third-party defendant, Mt. Hawley Insurance Company (hereinafter Mt. Hawley). However, Mt. Hawley denied coverage on the ground that Trades had not complied with certain conditions to coverage under endorsement 102A of the Mt. Hawley policy. After the plaintiff commenced an action against, among others, Trades, Trades commenced a third-party action against Mt. Hawley for a judgment declaring that Mt. Hawley is obligated to defend and indemnify it in the main action. Mt. Hawley moved for summary judgment declaring that it is not obligated to defend and indemnify Trades in the main action, and Trades cross-moved, inter alia, for summary judgment declaring that Mt. [*2]Hawley is so obligated. The Supreme Court denied the motion and granted the aforementioned branch of the cross motion.

Contrary to the Supreme Court’s conclusion, the conditions to coverage outlined in endorsement 102A are clear and unambiguous (see Mt. Hawley Ins. Co. v Liberato, 2010 WL 2653326, 2010 US Dist LEXIS 63600 [ED NY]; Mt. Hawley Ins. Co. v National Bdrs., LLC, 2009 WL 1919611, 2009 US Dist LEXIS 58215 [SD NY]; see also Mt. Hawley Ins. Co. v Van Cortlandt Vil., LLC, 2011 WL 5834255, 2011 US Dist LEXIS 134558 [SD NY]). Each of the requirements in endorsement 102A is an express condition precedent to coverage, and the failure to comply with any one of them is a sufficient basis to disclaim coverage (see Mt. Hawley Ins. Co. v National Bldrs., LLC, 2009 WL 1919611, 2009 US Dist LEXIS 58215 [SD NY]). Mt. Hawley established, prima facie, that Trades did not comply with all of the conditions outlined in endorsement 102A, and, in opposition, Trades failed to raise a triable issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562).

Accordingly, the Supreme Court should have granted Mt. Hawley’s motion for summary judgment and denied that branch of Trades’ cross motion which was for summary judgment on the third-party complaint.

Since the third-party action is a declaratory judgment action, the matter must be remitted to the Supreme Court, Kings County, for the severance of the third-party action and the entry of a judgment declaring that Mt. Hawley is not obligated to defend and indemnify Trades in the main action (see Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901).

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

ENTER:

Aprilanne Agostino

Clerk of the Court”

Nunez v City of New York             2012-00161         2012 NY Slip Op 07645    “Decided on November 14, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

ANITA R. FLORIO, J.P.

THOMAS A. DICKERSON

SANDRA L. SGROI

ROBERT J. MILLER, JJ.

 

2012-00161

(Index No. 28562/10)

 

 

[*1]Ismael Nunez, respondent,

 

v

 

City of New York, et al., appellants.

 

 

 

 

 

Cozen O’Connor, New York, N.Y. (Paul Zola, Kenneth G. Schwarz,

and Vincent Pozzuto of counsel), for appellants.

Lipsig, Shapey, Manus & Moverman, P.C. (Pollack, Pollack,

Isaac & DeCicco, New York, N.Y.

[Brian J. Isaac and Jillian Rosen], of

counsel), for respondent.

 

 

DECISION & ORDER

In an 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 (Schmidt, J.), dated November 9, 2001, as 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 reversed insofar as appealed from, on the law, with costs, and 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) is denied.

The plaintiff allegedly sustained personal injuries when he fell from a ladder while working on an asbestos-removal project in a New York City public school. The Supreme Court erred in granting 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). “”To impose liability pursuant to Labor Law § 240(1), there must be a violation of the statute and that violation must be a proximate cause of the plaintiff’s injuries”” (Tama v Gargiulo Bros., Inc., 61 AD3d 958, 960; see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 287). “”Where there is no statutory violation, or where the plaintiff is the sole proximate cause of his or her own injuries, there can be no recovery under Labor Law § 240(1)”” (Treu v Cappelletti, 71 AD3d 994, 997).

In support of his motion for summary judgment, the plaintiff submitted a copy of the transcript of his testimony at a hearing pursuant to General Municipal Law § 50-h. At that hearing he testified that the 10-foot A-frame ladder from which he fell was in an open and locked position at the time of the accident, and that it was positioned on an uneven floor composed of broken concrete and sand or dirt. He testified that he was standing near the top of the ladder and was leaning forward to apply a plastic covering to the wall when the ladder suddenly moved and he fell forward with the ladder to the floor. However, the plaintiff admitted that he himself had placed the ladder, and that he had no problems using it prior to the accident. The plaintiff also submitted an affidavit from a co-worker who also averred that the ladder was in an open position at the time of [*2]the accident. However, the plaintiff also submitted an incident report and unsworn statements of the co-worker and the plaintiff’s supervisor in which they indicated that at the time of the accident the ladder was in a closed position propped up against the wall. In light of these factually irreconcilable accounts, the plaintiff failed to eliminate triable issues of fact as to whether the ladder provided proper protection, and whether the ladder’s failure to provide proper protection was a proximate cause of the injuries (see Reyes v Khan, 90 AD3d 734; Delahaye v Saint Anns School, 40 AD3d 679, 682; Seepersaud v City of New York, 38 AD3d 753, 754; Taglioni v Harbor Cove Assoc., 308 AD2d 441, 442; Tersigni v City of New York, 300 AD2d 389, 390; Chan v Bed Bath & Beyond, 284 AD2d 290; Boguszewski v Solo Salon & Spa, 309 AD2d 777, 778; Costello v Hapco Realty, 305 AD2d 445, 446).

Since the plaintiff did not establish his prima facie entitlement to judgment as a matter of law, the motion should have been denied without regard to the sufficiency of the defendants’ opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

FLORIO, J.P., DICKERSON, SGROI and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

Oteri v Village of Pelham              2011-05716         2012 NY Slip Op 07646    “Decided on November 14, 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.

 

2011-05716

(Index No. 2793/07)

 

 

[*1]Rita Oteri, appellant,

 

v

 

Village of Pelham, respondent, et al., defendants.

 

 

 

 

 

Rappaport, Glass, Greene & Levine, LLP, New York, N.Y. (James

L. Forde of counsel), for appellant.

Gaines, Gruner, Ponzini & Novick, LLP, White Plains, N.Y.

(James A. Randazzo and Denise M.

Cossu of counsel), for respondent.

 

 

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Westchester County (Murphy, J.), entered April 27, 2011, which, upon a jury verdict in favor of the defendant Village of Pelham and against her, dismissed the complaint insofar as asserted against the defendant Village of Pelham.

ORDERED that the judgment is affirmed, with costs.

The Supreme Court correctly denied the plaintiff’s request for a negligence charge based on her claim that a police officer, employed by the defendant Village of Pelham, used excessive force in arresting, detaining, and transporting her. “”[N]o cause of action to recover damages for negligent assault exists in New York”” (Wetzberger v City of New York, 254 AD2d 352; see Rafferty v Arnot Ogden Mem. Hosp., 140 AD2d 911). Here, the plaintiff was arrested at the Pelham Police Department pursuant to a warrant issued from Yonkers and was thereafter transported to Yonkers. At trial, the plaintiff testified that the arresting detective manipulated her arm in an unnatural way in order to handcuff her from behind, dragged her into a holding cell, and kept her tightly handcuffed until she was transported to Yonkers. Such testimony only constitutes a claim for assault. “”[O]nce intentional offensive conduct has been established, the actor is liable for assault and not negligence”” (Panzella v Burns, 169 AD2d 824, 825; see Thomas v Fayee, 302 AD2d 451, 452; Wrase v Bosco, 271 AD2d 440; Barraza v Sambade, 212 AD2d 655; see also Ciminello v Sullivan, 65 AD3d 1002).

Contrary to the plaintiff’s contention, the verdict was not contrary to the weight of the evidence (see Lolik v Big V Supermarkets, 86 NY2d 744; Cohen v Hallmark Cards, 45 NY2d 493; Nicastro v Park, 113 AD2d 129). The detective presented a sharply different account as to how he handcuffed the plaintiff and placed her in the holding cell, and it cannot be said that the evidence so preponderated in favor of the plaintiff that the jury could not have reached its verdict in favor of the Village on any fair interpretation of the evidence (see Ahr v Karolewski, 48 AD3d 719). [*2]

Under the circumstances of this case, the plaintiff’s remaining contention does not require reversal.

ENG, P.J., FLORIO, SGROI and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court”

People v DeDona             2010-04667         2012 NY Slip Op 07647    “Decided on November 14, 2012

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

RANDALL T. ENG, P.J.

MARK C. DILLON.

THOMAS A. DICKERSON

JOHN M. LEVENTHAL, JJ.

 

2010-04667

 

 

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

 

v

 

Andrew DeDona, appellant.

 

 

 

APPEAL by the defendant from an order of the County Court (Susan Cacace, J.), dated April 6, 2010, and entered in Westchester County, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C.

 

 

Burke, Miele & Golden, LLP, Goshen, N.Y. (Michael K.

Burke of counsel), for appellant.

Janet DiFiore, District Attorney, White Plains, N.Y. (Lois

Cullen Valerio and Richard

Longworth Hecht of counsel), for

respondent.

 

 

OPINION & ORDER

 

 

ENG, P.J.The conduct which resulted in the defendant’s designation as a level two sex offender started in early February 2005, when he began communicating over the Internet with an undercover police officer posing as a 14-year-old girl named “”Jules.”” Using a webcam, the defendant transmitted images of himself masturbating to “”Jules,”” and arranged to meet both this fictitious girl and her supposed 12-year-old friend in New Jersey to engage in sexual activity. The defendant was arrested when he arrived at the designated meeting place, and he subsequently pleaded guilty to interstate travel with intent to engage in illicit sexual conduct with a person under 18 years of age in violation of 18 USC § 2423(b). After the defendant completed his term of imprisonment, the New York State Board of Examiners of Sex Offenders (hereinafter the Board) evaluated him for registration as a sex offender by preparing a risk assessment instrument. The risk assessment instrument assigned the defendant a total of 60 points under risk factors 3 (number of victims), 5 (age of victims), and 7 (relationship with the victims). Although the defendant’s score on the risk assessment instrument fell within the range of a level one sex offender, the Board recommended an upward departure to a level two designation in view of his admitted intent to engage in sexual activity with two young girls. At the conclusion of a hearing pursuant to the Sex Offender Registration Act (see Correction Law article 6-C; hereinafter SORA), the County Court assessed the defendant 60 points under risk factors 3, 5, and 7, and granted the People’s application for an upward departure to a level two designation as recommended by the Board. On appeal, the defendant contends that a law enforcement officer posing as an underage child on the Internet is not a “”victim”” as contemplated by SORA, and that since he did not have physical or sexual contact with an actual person, he should not have been scored any points on the risk assessment instrument. The defendant also maintains that the People failed to demonstrate, by clear and convincing evidence, the existence of aggravating factors warranting an upward departure from his presumptive risk level, and, thus, the County Court improvidently exercised its discretion in designating him a level two sex offender. For the reasons which follow, we find that the [*2]defendant was properly assessed points under the subject risk factors despite the fact that the victims in this case were fictitious, and that the County Court providently exercised its discretion in departing from his presumptive risk level.

The events which culminated in the defendant’s arrest and conviction began on February 4, 2005, when an undercover police officer in Bergen County, New Jersey, signed into an Internet chat room and received an instant message from an individual stating “”like to have sex today.”” This individual was later identified to be the defendant, Andrew DeDona, a then-38-year-old married man with a baby daughter. Pretending to be a 14-year-old girl from New Jersey named “”Jules,”” the officer began an online chat with the defendant. During this chat, the defendant asked “”Jules”” about her sexual history, and questioned her about her experiences with vaginal, anal, and oral sex. He told “”Jules”” that he lived “”near”” New Jersey, and expressed an interest in meeting her to engage in sexual activity, including anal sex. The defendant also asked “”Jules”” if she had any friends who would be willing to engage in sexual activity with him, and “”Jules”” replied that she had a 12-year-old friend who might be interested. The defendant described the sexual position he would prefer when having intercourse with “”Jules,”” and told her that he would use baby oil when they engaged in anal sex. The defendant then arranged to meet “”Jules”” on February 9, 2005, in the parking lot of a fast-food restaurant in Fort Lee, New Jersey.

On the day before the scheduled meeting, February 8, 2005, the defendant engaged in another Internet chat with “”Jules,”” in which he asked her to bring her 12-year-old friend to the meeting, so that he could engage in sexual activity with both girls. During his Internet chats with “”Jules”” on both February 4th and February 8th, the defendant used a webcam attached to the computer in his White Plains, New York, office to transmit images of himself exposed and masturbating to the fictitious 14-year-old girl. When the defendant arrived at the New Jersey parking lot to meet “”Jules”” and her friend on February 9th, he was placed under arrest.

For these acts, the defendant was charged, in a criminal complaint filed in the United States District Court for the District of New Jersey (hereinafter the District Court), with the federal offense of interstate travel with intent to engage in illicit sexual conduct with a person under 18 years of age in violation of 18 USC § 2423(b). He subsequently pleaded guilty to the charged offense, and was sentenced to a term of 37 months of imprisonment, to be followed by 15 years of supervised release. The defendant completed his term of imprisonment, and was released to federal supervision on December 29, 2009. As a condition of his supervision, the defendant was prohibited from possessing, purchasing, or otherwise obtaining access to “”any form of computer board, internet, or exchange format involving computers unless specifically approved by the U.S. Probation Office.”” He was also required to participate in a mental health program as directed by the U.S. Probation Office.

A few weeks after the defendant’s release from prison, on February 4, 2010, the Board prepared a risk assessment instrument which assigned him a total of 60 points, presumptively indicating that he should be designated a level one offender. More specifically, the Board scored the defendant 20 points under risk factor 3 for having two victims, 20 points under risk factor 5 because his victims were between the ages of 11 and 16, and 20 points under risk factor 7 because he had established a relationship with the victims for the purpose of victimizing them. However, the Board recommended that the defendant be classified a level two sex offender, concluding that in light of his admitted intent to engage in sexual activity with two children, the community would be safer and more appropriately served by an upward departure.

At a SORA hearing conducted on April 6, 2010, the defendant’s attorney advised the court that the defendant had no objection to the assessment of 60 points against him under risk factors 3, 5, and 7. However, when the People requested an upward departure as recommended by the Board, defense counsel opposed the request. Counsel argued that no departure from the defendant’s presumptive risk level was warranted because he would be under federal supervision for 15 years, and the conditions of his supervision barred him from possessing computer equipment without approval, and required him to participate in counseling. Counsel further contended that the aggravating factors upon which the People and the Board relied in seeking an upward departure were actually part and parcel of the crime to which the defendant pleaded guilty. The County Court granted the People’s request for an upward departure, stressing that the defendant’s conduct including transmitting images of himself masturbating to someone he believed to be a 14-year-old girl, and concluding that the conduct [*3]resulting in the defendant’s conviction had not been adequately taken into account by the risk assessment instrument.

The Assessment of Points for Fictitious Victims

On appeal from the County Court’s order designating him a level two sex offender, the defendant challenges the assessment of points against him on the risk assessment instrument under risk factors 3, 5, and 7. He contends that a law enforcement officer posing as an underage child on the Internet is not a “”victim”” as contemplated by SORA, and maintains that he should not have been scored any points on the risk assessment instrument because he did not have physical or sexual contact with an actual person. Although the defendant acknowledges that he would be required to register as a sex offender even if he received a score of zero on the risk assessment instrument, he argues that receiving the lowest possible score is a factor that would strongly militate against an upward departure.

Initially, we note that the defendant raised no objection at the SORA hearing to the 60 points scored for risk factors 3, 5, and 7. Accordingly, his contention that no points should have been assessed against him for these risk factors because his victims were fictitious is unpreserved for appellate review (see People v Campbell, 98 AD3d 5; People v Velardo, 80 AD3d 682; People v Serrano, 61 AD3d 946, 947; People v Barber, 29 AD3d 660). In any event, this contention is without merit, since, for the reasons discussed below, the risk factors at issue here—3, 5, and 7—do not require actual, physical sexual contact between the offender and victim, and assessing the defendant points for these risk factors furthers the purpose for which SORA was enacted.

We begin our analysis by noting that SORA mandates the appointment of a five-member Board comprised of “”experts in the field of the behavior and treatment of sex offenders”” (Correction Law § 168-l[1]), and tasks the Board with the responsibility of developing guidelines and procedures to assess a sex offender’s risk of a repeat offense, and the threat posed to public safety (see Correction Law § 168-1[5]). To fulfill its statutory mandate, “”[a]fter much discussion, the Board opted to create an objective assessment instrument that would provide a risk level combining risk of reoffense and danger posed by a sex offender”” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3 [2006]) (hereinafter the Guidelines). The risk assessment instrument developed by the Board “”contains a series of factors that permit the assignment of specified point values depending on the characteristics of the victim, the circumstances surrounding the crime, a defendant’s prior history of sexual offenses, and the like”” (People v Mingo, 12 NY3d 563, 568 n 2). A sex offender’s point totals on the risk assessment instrument presumptively place the offender in one of three categories—level one, low risk of reoffense (1 to 70 points); level two, moderate risk of reoffense (75 to 105 points); and level three, high risk of reoffense (110 to 300 points).

The three risk factors for which the defendant was scored 20 points each are all in the category of the risk assessment instrument entitled “”Current Offenses,”” and relate to the number of victims (risk factor 3), the age of the victim or victims (risk factor 5), and the defendant’s relationship with the victim or victims (risk factor 7). The Guidelines explain that risk factor 3 assesses 20 points where there are two victims, and 30 points where there are three or more victims, because “”[t]he existence of multiple victims is indicative of compulsive behavior and is, therefore, a significant factor in assessing the offender’s risk of reoffense and dangerousness”” (Guidelines at 10). Further, since offenders who target children as their victims are deemed to be more likely to reoffend (see Guidelines at 11), risk factor 5 assesses an offender 20 points where the victim or victims are between the ages of 11 through 16. Risk factor 7 assesses an offender 20 points where the crime was either directed at a stranger, or at a person with whom a relationship had been established for the primary purpose of victimization, since such a situation presents “”a heightened concern for public safety and need for community notification”” (Guidelines at 12).

In urging us to conclude that points cannot be assessed for risk factors 3, 5, and 7 where the offender’s intended victim is a fictitious persona, the defendant relies upon our prior decision in People v Costello (35 AD3d 754). In Costello, the victim was “”a fictitious screen name used by an undercover detective posing as a 14-year-old male, who communicated with the defendant only through Internet chat rooms and via instant messaging”” (id. at 755). On appeal, the defendant argued that he had been improperly assessed 20 points under risk factor 4 for [*4]engaging in a continuing course of sexual misconduct with the victim. According to the Guidelines, “”an offender has engaged in a continuing course of sexual contact when he engages in either (i) two or more acts of sexual contact, at least one of which is an act of sexual intercourse, oral sexual conduct, anal sexual conduct, or aggravated sexual contact, which acts are separated in time by at least 24 hours, or (ii) three or more acts of sexual contact over a period of at least two weeks”” (Guidelines at 10). Relying on the Guidelines, this Court agreed that the defendant had been improperly scored points under risk factor 4, concluding that “”[b]ecause there was never any sexual contact’ (Penal Law § 130.00[3]) between the defendant and the victim,’ it follows that the defendant could not have engaged in a continuing course of sexual misconduct’ as contemplated by the guidelines”” (People v Costello, 35 AD3d at 755)

Costello is readily distinguishable because the Guidelines make clear that risk factor 4 requires sexual contact between the offender and the victim. In contrast, the risk factors at issue here—3, 5, and 7—are not risk factors which require actual, physical, sexual contact between the offender and victim. Further, assessing the defendant points for the number and ages of his “”victims””—whom he clearly believed to be a 14-year-old girl and her 12-year-old friend, and for establishing a relationship with the supposed 14-year-old for the purpose of victimizing her and her friend, is entirely consistent with the rationale underlying risk factors 3, 5, and 7, as set forth by the Board in the Guidelines. The fact that the 14-year-old girl with whom the defendant believed he was communicating was actually an undercover officer does not lessen his risk of reoffense, or make him any less of a risk to the community than he would be if he had succeeded in making contact with an actual child.

It is also significant to note that the defendant’s conduct in traveling to New Jersey with the intent to engage in sexual activity with two young girls resulted in his conviction of the federal offense of interstate travel with intent to engage in illicit sexual conduct with a person under 18 years of age in violation of 18 USC § 2423(b), despite the fact that the girls he believed he would be meeting were fictitious. Several United States Courts of Appeals have held that the existence of an actual minor is not necessary to support a conviction for interstate travel to engage in illicit sexual conduct with a person under 18 years of age in violation of 18 USC § 2423(b), and/or for attempting to persuade a person under 18 years of age to engage in illegal sexual activity in violation of 18 USC § 2422(b) (see United States v Gagliardi, 506 F3d 140, 144-147 [2d Cir]; United States v Tykarsky, 446 F3d 458, 464-469 [3d Cir], cert deniedUS, 129 S Ct 1929; United States v Sims, 428 F3d 945, 959-960 [10th Cir]; United States v Meek, 366 F3d 705, 717-718[9th Cir]; United States v Root, 296 F3d 1222, 1227-1232, cert denied 537 US 1176 [11th Cir]; United States v Farner, 251 F3d 510, 512-513 [5th Cir]). Discussing 18 USC § 2423(b) in its decision in Tykarsky, the Third Circuit pointed out that this statute, by its unambiguous terms, “”criminalizes interstate travel for an illicit purpose. The actual age of the intended victim is not an element of the offense; criminal liability turns simply on the purpose for which [the defendant] traveled'”” (United States v Tykarsky, 446 F3d at 469, quoting United States v Root, 296 F3d at 1231). The conclusion that no actual