text:
    NYCTL 1999-1 Trust et al., Respondents, v NY Pride Holdings, Inc., et al., Defendants, and Union Street Management Group, Ltd., Appellant. Baroda Properties, Inc., et al., Proposed Intervenors-Respondents.
    Submitted June 18, 2007;
    decided September 11, 2007
    Reported below, 34 AD3d 774.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Nora Renzulli, Appellant, v Terrence J. McElrath, as Judge of the Richmond County Family Court, Respondent.
    Submitted June 25, 2007;
    decided September 11, 2007
    Reported below, 286 AD2d 335.
   Motion for leave to appeal dismissed upon the ground that the issues presented have become moot.


text:
    In the Matter of the Claim of George Taylor, Appellant, v Raleigh Hotel et al., Respondents. Workers’ Compensation Board, Respondent.
    Submitted July 16, 2007;
    decided September 11, 2007
    Reported below, 35 AD3d 1053.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Andrzej Tercjak, Respondent, v Jadwiga Tercjak, Appellant.
    Submitted June 25, 2007;
    decided September 11, 2007
    Reported below, 2007 NY Slip Op 68812(U).
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    [875 NE2d 883, 844 NYS2d 165]
    The People of the State of New York, Respondent, v Andre Collier, Appellant.
    Decided September 18, 2007

      APPEARANCES OF COUNSEL

      Eugene P. Grimmick, Troy, for appellant.

      Patricia A. DeAngelis, District Attorney, Troy (Anne L. Von Fricken Coonrad of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, defendant’s plea vacated and case remitted to County Court, Rensselaer County, for further proceedings on the information (see People v Louree, 8 NY3d 541 [2007]).

Concur: Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones.


text:
    [875 NE2d 883, 844 NYS2d 165]
    Lisa Bishop et al., Appellants, v Rona Maurer, Defendant, and Goodkind Labaton Rudoff & Sucharow, LLP, et al., Respondents.
    Decided September 18, 2007
    APPEARANCES OF COUNSEL

      Lawrence H. Silverman, New York City, for appellants.

      Simpson Thacher & Bartlett LLP, New York City (Roy L. Reardon of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, and the certified question not answered on the ground that it is unnecessary. It is true that plaintiffs here, as is normally the case, are bound by the estate planning documents decedent signed. Nevertheless, the conclusiveness of the underlying agreement does not absolutely preclude an action for professional malpractice against an attorney for negligently giving to a client an incorrect explanation of the contents of a legal document (see Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 305 [2001]). Here, however, plaintiffs’ complaint is devoid of any nonconclusory allegation that incorrect advice was given.

Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur in memorandum.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, etc.


text:
    [875 NE2d 884, 844 NYS2d 166]

    The People of the State of New York, Respondent, v Rasool Salaam, Appellant.
    Decided September 18, 2007

      APPEARANCES OF COUNSEL

      Susan T. Aron, Voorheesville, for appellant.

      Robert M. Carney, District Attorney, Schenectady (Alfred D. Chapleau of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, defendant’s plea vacated and case remitted to County Court, Schenectady County, for further proceedings on the indictments (see People v Louree, 8 NY3d 541 [2007]).

Concur: Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones.


text:
    Elizabeth Alden, Appellant, v Onondaga County Sheriff’s Department, Respondent.
    Submitted July 30, 2007;
    decided September 18, 2007
   Motion for reconsideration of this Court’s June 12, 2007 dismissal order denied [see 8 NY3d 1017].

Judge Pigott taking no part.


text:
    In the Matter of the Claim of Michael Allen, Respondent, v Enterprise Rent-A-Car et al., Appellants. Workers’ Compensation Board, Respondent.
    Submitted August 13, 2007;
    decided September 18, 2007
    Reported below, 38 AD3d 970.
   Motion for reargument of motion for leave to appeal denied [see 9 NY3d 802].


text:
    Mitchell Benesowitz, Appellant, v Metropolitan Life Insurance Company, Plan Administrator of Honeywell Long Term Disability Income Plan, et al., Respondents.
    Submitted August 6, 2007;
    decided September 18, 2007
   Motion for reargument denied [see 8 NY3d 661].


text:
    Mitchell Benesowitz, Appellant, v Metropolitan Life Insurance Company, Plan Administrator of Honeywell Long Term Disability Income Plan, et al., Respondents.
    Submitted August 6, 2007;
    decided September 18, 2007
   Motion by the American Council of Life Insurers, et al. for leave to file a brief amici curiae on the motion for reargument herein granted and the brief is accepted as filed.


text:
    Cellutech, Inc., et al., Respondents, v Watertown Industrial Center Local Development Corporation, Appellant, et al., Defendant.
    Submitted September 4, 2007;
    decided September 18, 2007
    Reported below, 42 AD3d 934.
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the stipulation for judgment absolute filed does not meet the requisites of CPLR 5601 (c).


text:
    In the Matter of Richard Champion, Appellant, v Robert Dennison, as Chair of the New York State Board of Parole, Respondent.
    Submitted July 11, 2007;
    decided September 18, 2007
    Reported below, 40 AD3d 1181.
   Motion for leave to appeal dismissed upon the ground that the issues presented have become moot. Motion for poor person relief dismissed as academic.


text:
    Peter J. Corines, Appellant, v Sentry Life Insurance Co. et al., Respondents.
    Submitted July 2, 2007;
    decided September 18, 2007
   Motion, insofar as it seeks leave to appeal as against United States Life Insurance Company and Continental Casualty Company, denied; motion, insofar as it seeks leave to appeal as against Sentry Life Insurance Company, dismissed as untimely. The prior application for leave to appeal to the Court of Appeals, made at the Appellate Division, insofar as against Sentry Life Insurance Company, was untimely (see Karger, Powers of the New York Court of Appeals § 12:3, at 436-437 [rev 3d ed 2005]).


text:
    Susan C. Darrin, Appellant, v David Darrin, Respondent.
    Submitted July 16, 2007;
    decided September 18, 2007
    Reported below, 40 AD3d 1391.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Data Tree, LLC, Appellant, v Edward P. Romaine, Respondent.
    Submitted September 10, 2007;
    decided September 18, 2007
    Reported below, 36 AD3d 804.
   Motion by American Business Media et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Dave Sandel, Inc., Respondent, v Specialized Industrial Services Corp., Appellant.
    Submitted July 9, 2007;
    decided September 18, 2007
    Reported below, 35 AD3d 790.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Hospital for Joint Diseases et al., Respondents, v Travelers Property Casualty Insurance Company et al., Appellants.
    Submitted September 10, 2007;
    decided September 18, 2007
    Reported below, 34 AD3d 532.
   Motion by New York Insurance Association, Inc. for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Monroe Yale Mann, Respondent, v Bernard Abel et al., Appellants, et al., Defendants.
    Submitted August 6, 2007;
    decided September 18, 2007
    Reported below, 37 AD3d 778.
   Motion to dismiss the appeal herein denied.


text:
    In the Matter of Melvin J., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Submitted July 9, 2007;
    decided September 18, 2007
    Reported below, 35 AD3d 609.
   Motion for leave to appeal dismissed upon the ground that it does not lie, appellant having previously moved in the Court of Appeals for leave to appeal (8 NY3d 957 [2007]) from the same Appellate Division order from which he currently seeks leave to appeal. Motion for poor person relief dismissed as academic.


text:
    Erno Nussenzweig, Appellant, v Philip-Lorca diCorcia et al., Respondents.
    Submitted September 10, 2007;
    decided September 18, 2007
    Reported below, 38 AD3d 339.
   Motion by the New York Times Company et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.

Chief Judge Kaye taking no part.


text:
    In the Matter of Emmanuel O. Onuaguluchi, an Attorney, Appellant. Grievance Committee for the Second and Eleventh Judicial Districts, Petitioner.
    Submitted July 23, 2007;
    decided September 18, 2007
    Reported below, 36 AD3d 823.
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    Zichrini Oster et al., Appellants, v State of New York et al., Respondents.
    Submitted September 4, 2007;
    decided September 18, 2007
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, First Department, upon the ground that a direct appeal does not lie (see NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).


text:
    The People of the State of New York, Respondent, v Donnell Davis, Appellant.
    Submitted July 23, 2007;
    decided September 18, 2007
    Reported below, 9 AD3d 468.
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 dismissed as untimely.


text:
    The People of the State of New York, Respondent, v David Rivera, Appellant.
    Submitted September 10, 2007;
    decided September 18, 2007
    Reported below, 38 AD3d 292.
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York ex rel. A.E.F., on Behalf of M.J.L.-F, Respondent, v K.T.L., Appellant. In the Matter of K.T.L., Appellant, v A.E.F., Respondent.
    Submitted September 4, 2007;
    decided September 18, 2007
    Reported below, 40 AD3d 894.
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    The People of the State of New York ex rel. Chaka Moxley, Appellant, v Anthony Zon, as Superintendent of Wende Correctional Facility, et al., Respondents.
    Submitted August 6, 2007;
    decided September 18, 2007
    Reported below, 34 AD3d 1185.
   Motion for reargument of motion for leave to appeal denied. Motion for poor person relief dismissed as academic [see 8 NY3d 811].


text:
    The People of the State of New York ex rel. Justo Richards, Appellant, v Calvin West, Respondent. In the Matter of Justo Richards, Appellant, v Calvin West, Respondent. In the Matter of Robert Ward et al., Petitioners, and Justo Richards, Appellant, v Eliot Spitzer, Respondent.
    Submitted June 18, 2007;
    decided September 18, 2007
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the orders appealed from do not finally determine the proceedings within the meaning of the Constitution. Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the proceedings within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Carmine Polito et al., Appellants, v John P. Walsh, as Supreme Court Justice, et al., Respondents.
    Submitted July 16, 2007;
    decided September 18, 2007
    Reported below, 32 AD3d 953.
   Motion for reargument denied [see 8 NY3d 683].


text:
    Nicholas Raffellini, Respondent, v State Farm Mutual Automobile Insurance Company, Appellant.
    Submitted September 10, 2007;
    decided September 18, 2007
    Reported below, 36 AD3d 92.
   Motion by New York Insurance Association, Inc. for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    In the Matter of Jerrold Schwartz, Appellant, v Robert Dennison, as Chairman of the New York State Board of Parole, Respondent.
    Submitted September 4, 2007;
    decided September 18, 2007
    Reported below, 40 AD3d 218.
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Morton Tabak et al. Respondents, v Martha Steele, Appellant, et al., Respondents.
    Submitted September 4, 2007;
    decided September 18, 2007
    Reported below, 38 AD3d 244.
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    VSF Coalition, Inc., et al., Appellants, v Nicholas Scoppetta et al., Respondents.
    Submitted June 18, 2007;
    decided September 18, 2007
    Reported below, 36 AD3d 690.
   Motion, insofar as it seeks leave to appeal as against the Uniformed Firefighters Association, dismissed as untimely (see CPLR 5513 [b]); motion for leave to appeal otherwise denied.


text:
    In the Matter of Stephen J. Williams (Admitted as Stephen John Williams), an Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted July 23, 2007;
    decided September 18, 2007
    Reported below, 33 AD3d 38.
   Motion for reargument denied [see 8 NY3d 1007].


text:
    Sheila Zipper et al., Respondents, v Haroldon Court Condominium et al., Respondents, and Rebecca Rosenbaum, Also Known as Rebecca Lukowsky, Appellant.
    Submitted August 27, 2007;
    decided September 18, 2007
    Reported below, 39 AD3d 325.
   On the Court’s own motion, appeal, insofar as taken from the Appellate Division order denying reargument or, in the alternative, leave to appeal to the Court of Appeals, dismissed, without costs, upon the ground that such order does not finally determine the action within the meaning of the Constitution; appeal otherwise dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for a stay dismissed as academic.


text:
    [876 NE2d 500, 844 NYS2d 773]
    Certain Underwriters at Lloyd’s, London, et al., Plaintiffs, v Foster Wheeler Corporation, Respondent, and Affiliated FM Insurance Company et al., Appellants, et al., Defendants.
    Argued September 6, 2007;
    decided October 11, 2007

      APPEARANCES OF COUNSEL

      Crowell & Moring LLP, Washington, DC (Clifton S. Elgarten, Jonathan H. Pittman and Kathryn A. Underhill, of the District of Columbia bar, admitted pro hac vice, of counsel), and Crowell & Moring LLP, New York City (Frank M. Esposito of counsel), for appellants.

      Covington & Burling LLP, Washington, DC (Robert A. Long, Jr., of the District of Columbia bar, admitted pro hac vice, and William P. Skinner, Keith A. Noreika and Ann O’Connell of counsel), and Covington & Burling LLP, New York City (Michael C. Nicholson of counsel), for respondent.

      Kirkpatrick & Lockhart Preston Gates Ellis LLP, New York City (David S. Versfelt of counsel), and Kirkpatrick & Lockhart Preston Gates Ellis LLP, Pittsburgh, Pennsylvania (Donald E. Seymour of counsel), for Honeywell International Inc., amicus curiae.

      Vedeer, Price, Kaufman & Kammholz, P.C., New York City (John H. Eickemeyer and Marie Tieri of counsel), and Wiley Rein LLP, Washington, DC (Laura A. Foggan and John C. Yang of counsel), for Complex Insurance Claims Litigation Association, amicus curiae.
   OPINION OF THE COURT

Order affirmed, with costs, and certified question answered in the affirmative for the reasons stated by Justice David Friedman at the Appellate Division (36 AD3d 17 [2006]).

Concur: Chief Judge Kaye and Judges Ciparick, Grapfeo, Smith, Pigott and Jones. Taking no part: Judge Read.


text:
    [876 NE2d 901, 845 NYS2d 215]
    Michele Launders, as Administratrix of the Estate of Baby Girl Launders, Also Known as Lisa, Deceased, Respondent, et al., Plaintiff, v Joel Steinberg, Appellant, et al., Defendants.
    Argued September 5, 2007;
    decided October 11, 2007

      APPEARANCES OF COUNSEL

      Joel B. Steinberg, appellant pro se.

      Law Offices of Wayne J. Schaefer, LLC, Hauppauge (Wayne J. Schaefer of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, without costs, by remitting to Supreme Court for further proceedings in accordance with this memorandum and, as so modified, affirmed.

In March 1989, after a jury trial, defendant Steinberg was convicted of manslaughter in the first degree for the November 1987 killing of his adopted six-year-old daughter Lisa (see People v Steinberg, 170 AD2d 50 [1st Dept 1991], affd 79 NY2d 673 [1992]).

In August 1989, plaintiff commenced this action as administratrix of Lisa’s estate against Steinberg and various other defendants. The fifth and sixth causes of action alleged acts of prior abuse; the seventh cause of action alleged that defendant, having actual notice that Lisa sustained a life-threatening injury on November 1, 1987, recklessly and dangerously failed to take reasonably prudent action to secure medical treatment for her. Supreme Court, invoking collateral estoppel based on defendant’s manslaughter conviction, awarded partial summary judgment against defendant on these three causes of action, and awarded plaintiff $5 million for Lisa’s pain and suffering during the 8 to 10 hours preceding her death, $5 million for the pain and suffering resulting from past abuse and $5 million in punitive damages. The Appellate Division affirmed, with two Justices dissenting.

In order to invoke the doctrine of collateral estoppel, “[t]here must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and there must have been a full and fair opportunity to contest the decision now said to be controlling” (Buechel v Bain, 97 NY2d 295, 303-304 [2001], cert denied 535 US 1096 [2002]). Here, the jury in defendant’s criminal trial was not required to determine whether Lisa was subjected to repeated physical abuse by defendant during the months prior to the acts resulting in her death. Although evidence of prior acts of abuse was presented at defendant’s criminal trial, the issue was not “necessarily decided” therein. Thus, Supreme Court’s award of summary judgment on plaintiffs fifth and sixth causes of action must be vacated and a new trial held on liability on these causes of action.

The question of excessiveness of the compensatory damages award is beyond this Court’s review, as is the question of excessiveness of the punitive damages award, in the absence of due process concerns. Supreme Court may, however, revisit the punitive damages question upon the ultimate disposition of the fifth and sixth causes of action. Also, although apportionment was properly denied, on remand, Supreme Court shall consider defendant’s $985,000 set-off claim pursuant to General Obligations Law § 15-108. Defendant’s remaining arguments are without merit.

Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur in memorandum.

Order modified, etc.


text:
    In the Matter of Adult Home at Erie Station, Inc., Respondent, v Assessor and Board of Assessment Review of City of Middletown et al., Appellants.
    Submitted September 24, 2007;
    decided October 11, 2007
    Reported below, 36 AD3d 699.
   Motion by New York State Conference of Mayors and Municipal Officials for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    In the Matter of Jennifer Amorosi, Appellant, v South Colonie Independent Central School District et al., Respondents.
    Submitted October 9, 2007;
    decided October 11, 2007
    Reported below, 34 AD3d 1073.
   Motion by New York State United Teachers for leave to file a brief amicus curiae on the appeal herein granted. Three copies of the brief must be served and an original and 24 copies filed within seven days.


text:
    Manuel Arons, Respondent, v Robert Jutkowitz et al., Appellants, et al., Defendant.
    Submitted October 9, 2007;
    decided October 11, 2007
    Reported below, 37 AD3d 94.
   Motion by New York State Trial Lawyers’ Association for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    In the Matter of Data Tree, LLC, Appellant, v Edward P. Romaine, Respondent.
    Submitted October 9, 2007;
    decided October 11, 2007
    Reported below, 36 AD3d 804.
   Motion by Advance Publications, Inc. et al. for leave to file a brief amici curiae on the appeal herein granted. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    John DeRaffele, Appellant, v 210-220-230 Owners Corp. et al., Respondents.
    Submitted July 16, 2007;
    decided October 11, 2007
    Reported below, 33 AD3d 752.
   Motion for reargument of motion for leave to appeal denied with $100 costs and necessary reproduction disbursements [see 8 NY3d 814 (2007)].


text:
    Gallinger/GMAC Real Estate, Respondent, v Francis W. Roscoe, II, et al., Appellants. The Ginley Family Real Estate Trust, by Michael P. Ginley and Another, as Cotrustees, Respondent, v Francis W. Roscoe, II, et al., Appellants. HMC Management Corp., Respondent, v Francis W. Roscoe, II, et al., Appellants.
    Submitted July 16, 2007;
    decided October 11, 2007
    Reported below, 41 AD3d 1312.
   Motion, insofar as it seeks leave to appeal in The Ginley Family Real Estate Trust v Roscoe action, dismissed upon the ground that the order sought to be appealed from does not finally determine that action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Sinclair Haberman et al., Appellants, v Zoning Board of Appeals of City of Long Beach et al., Respondents.
    Submitted October 1, 2007;
    decided October 11, 2007
    Reported below, 35 AD3d 465.
   Motion by New York State Builders Association, Inc. for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Annette J. Kish, as Administrator De Bonis Non of the Estate of James J. Jerge, Deceased, Respondent, v David H. Graham, M.D., et al., Appellants.
    Submitted October 9, 2007;
    decided October 11, 2007
    Reported below, 40 AD3d 118.
   Motion by New York State Trial Lawyers’ Association for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    In the Matter of Christopher Mapp, Respondent, v Gregory Burnham, as Chief Technology Officer of Port Authority of New York and New Jersey, et al., Appellants.
    Submitted July 9, 2007;
    decided October 11, 2007
    Reported below, 23 AD3d 37.
   Motion for reargument denied [see 8 NY3d 999 (2007)].


text:
    James F. Notaro, Jr., Appellant, v Power Authority of the State of New York, Respondent, et al., Defendants.
    Submitted July 16, 2007;
    decided October 11, 2007
    Reported below, 41 AD3d 1318.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    135 West 36th LLC et al., Respondents, v World City America Inc. et al., Defendants, and Charles Gallagher et al., Appellants.
    Submitted June 18, 2007;
    decided October 11, 2007
    Reported below, 34 AD3d 317.
   Motion for reargument of motion for leave to appeal denied [see 8 NY3d 979 (2007)].


text:
    The People of the State of New York, Respondent, v Alejandro Correa, Appellant.
    Submitted July 2, 2007;
    decided October 11, 2007
    Reported below, 39 AD3d 348.
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Jonathan Jenkins, Appellant.
    Submitted October 1, 2007;
    decided October 11, 2007
    Reported below, 44 AD3d 1.
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Curtis Mitchell, Appellant.
    Submitted September 17, 2007;
    decided October 11, 2007
    Reported below, 39 AD3d 357.
   Motion for assignment of counsel granted and Steven Banks, Esq., the Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Nehemiah Nash, Appellant.
    Submitted October 9, 2007;
    decided October 11, 2007
   Motion for reargument denied [see 9 NY3d 894 (2007)].


text:
    The People of the State of New York, Respondent, v Laloni C. Patterson, Appellant.
    Submitted September 24, 2007;
    decided October 11, 2007
    Reported below, 34 AD3d 1349.
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 denied as unnecessary and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Hector Rincon, Appellant.
    Submitted September 17, 2007;
    decided October 11, 2007
    Reported below, 40 AD3d 539.
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    210-220-230 Owners Corp., Respondent, v John DeRaffele, Appellant.
    Submitted July 16, 2007;
    decided October 11, 2007
    Reported below, 33 AD3d 788.
   Motion for reargument of motion for leave to appeal denied with $100 costs and necessary reproduction disbursements [see 8 NY3d 815 (2007)].


text:
    Marie C. Vaval, Appellant, v NYRAC, Inc., et al., Respondents.
    Submitted July 23, 2007;
    decided October 11, 2007
    Reported below, 2007 NY Slip Op 63481(U).
   Motion for reargument of motion for leave to appeal denied [see 8 NY3d 1020 (2007)].


text:
    Vigilant Insurance Company et al., Appellants, v The Bear Stearns Companies, Inc., Respondent.
    Submitted October 1, 2007;
    decided October 11, 2007
    Reported below, 34 AD3d 300.
   Motion by Securities and Exchange Commission for leave to file a brief amicus curiae on the appeal herein granted. Two copies of the brief must be served, 24 copies filed and the CPLR 8022 motion fee paid within seven days.


text:
    Tanya Webb, Respondent, v New York Methodist Hospital et al., Appellants.
    Submitted October 9, 2007;
    decided October 11, 2007
    Reported below, 35 AD3d 457.
   Motion by New York State Trial Lawyers’ Association for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    [876 NE2d 507, 844 NYS2d 779]
    The People of the State of New York, Respondent, v John Mingo, Appellant.
    Decided October 16, 2007
    APPEARANCES OF COUNSEL

      Appellate Advocates, New York City (Lynn W.L. Fahey of counsel), for appellant.

      Michael A. Cardozo, Corporation Counsel, New York City (Fay Ng of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed. The Appellate Division, having affirmed without opinion, may have done so on the basis that the sentence imposed was not excessive, an issue beyond this Court’s review.

Concur: Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones.


text:
    Pawel Czernicki, Appellant, v Marek Lawniczak, Respondent.
    Submitted July 30, 2007;
    decided October 16, 2007
    Reported below, 41 AD3d 418, 419.
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of James G. Doyle et al., Appellants, v Schuylerville Central School District et al., Respondents.
    Submitted August 13, 2007;
    decided October 16, 2007
    Reported below, 35 AD3d 1058.
   Motion for reargument of motion for leave to appeal denied with $100 costs and necessary reproduction disbursements [see 9 NY3d 804 (2007)].


text:
    Financial Industry Regulatory Authority, Inc., Formerly Known as National Association of Securities Dealers, Inc., Respondent, v John J. Fiero et al., Appellants.
    Submitted August 20, 2007;
    decided October 16, 2007
    Reported below, 33 AD3d 547.
   Motion to expand the record on appeal herein denied.


text:
    In the Matter of Bernard Fuller, Appellant, v Charles Solomon, as Justice of the Supreme Court of the State of New York, Respondent.
    Submitted July 30, 2007;
    decided October 16, 2007
    Reported below, 41 AD3d 256, 35 AD3d 241.
   Motion for leave to appeal dismissed upon the ground that the issues presented have become moot. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Foreclosure of 2001 Tax Liens by Proceeding In Rem Pursuant to Article 11 of Real Property Tax Law by County of Jefferson, Respondent; Robert Weichert, Appellant.
    Submitted August 6, 2007;
    decided October 16, 2007
    Reported below, 38 AD3d 1364.
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    In the Matter of Clement Jones, Appellant, v Richard A. Keenan, as Monroe County Judge, et al., Respondents.
    Submitted August 6, 2007;
    decided October 16, 2007
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    Yaakov Kanovsky, Appellant, v Montefiore Medical Center et al., Respondents.
    Submitted August 13, 2007;
    decided October 16, 2007
    Reported below, 40 AD3d 938.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Leo A. Marino, Appellant, v New York State Department of Correctional Services, Respondent.
    Submitted July 30, 2007;
    decided October 16, 2007
    Reported below, 41 AD3d 1004.
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


text:
    Marlene Patrella et al., Appellants, v Atlantic Chiropractic Group et al., Respondents.
    Submitted August 6, 2007;
    decided October 16, 2007
    Reported below, 41 AD3d 806.
   Motion for leave to appeal denied with $100 costs and necessary reproduction disbursements. Cross motion for the imposition of sanctions denied.


text:
    Joseph Pedri, Appellant, v Jeanne Pedri, Respondent.
    Submitted August 20, 2007;
    decided October 16, 2007
    Reported below, 2007 NY Slip Op 72805(U).
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v Anthony Lesch, Appellant.
    Submitted September 4, 2007;
    decided October 16, 2007
    Reported below, 38 AD3d 1129.
   Motion for reargument of motion for leave to appeal denied [see 8 NY3d 816 (2007)]. Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York, Respondent, v Joshua Liner, Appellant.
    Submitted August 13, 2007;
    decided October 16, 2007
    Reported below, 33 AD3d 479.
   Motion for reargument denied [see 9 NY3d 856 (2007)].


text:
    The People of the State of New York ex rel. John Chiarello, Appellant, v James L. Berbary, as Superintendent of Collins Correctional Facility, Respondent.
    Submitted September 4, 2007;
    decided October 16, 2007
    Reported below, 34 AD3d 1277.
   Motion for reargument of motion for leave to appeal denied [see 8 NY3d 858 (2007)].


text:
    The People of the State of New York ex rel. Anthony Jones, Appellant, v Brian Fischer, Respondent.
    Submitted August 20, 2007;
    decided October 16, 2007
    Reported below, 2007 NY Slip Op 68924(U).
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Police Benevolent Association of the New York State Troopers, Inc., Appellant, et al., Plaintiffs, v New York State Division of State Police et al., Respondents.
    Submitted August 6, 2007;
    decided October 16, 2007
    Reported below, 40 AD3d 1350.
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied with $100 costs and necessary reproduction costs.


text:
    In the Matter of Tasharka Sargent, Appellant, v Glenn S. Goord et al., Respondents.
    Submitted September 10, 2007;
    decided October 16, 2007
    Reported below, 34 AD3d 333.
   Motion for reargument of motion for leave to appeal denied [see 8 NY3d 804 (2007)].


text:
    In the Matter of SOMA Partners, LLC, Respondent, v Northwest Biotherapeutics, Inc., Appellant.
    Submitted August 6, 2007;
    decided October 16, 2007
    Reported below, 41 AD3d 257.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Santos Suarez, Appellant, v John Byrne et al., Respondents.
    Submitted July 16, 2007;
    decided October 16, 2007
    Reported below, 40 AD3d 546.
   Motion for poor person relief granted.


text:
    In the Matter of the Application of Nyapati R. Rao, M.D., M.S., as Chairman of the Department of Psychiatry and Behavioral Sciences at Nassau University Medical Center, Respondent, for an Order Authorizing the Involuntary Treatment of Catherine F., a Patient at Nassau University Medical Center, Appellant.
    Submitted October 9, 2007;
    decided October 18, 2007
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Second Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).


text:
    In the Matter of David J. Ciraolo, Appellant. Whitey Produce Co., Inc., et al., Respondents.
    Submitted August 20, 2007;
    decided October 18, 2007
    Reported below, 37 AD3d 461.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Data Tree, LLC, Appellant, v Edward P. Romaine, Respondent.
    Submitted October 15, 2007;
    decided October 18, 2007
    Reported below, 36 AD3d 804.
   Motion by City of New York for leave to file a brief amicus curiae on the appeal herein granted. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Robert Eden, Appellant, v St. Luke’s-Roosevelt Hospital Center et al., Respondents.
    Submitted August 20, 2007;
    decided October 18, 2007
    Reported below, 39 AD3d 215.
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that denied appellant’s motion to amend the complaint, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Rachel Ehrenfeld, Appellant, v Khalid Salim Bin Mahfouz, Respondent.
    Submitted October 15, 2007;
    decided October 18, 2007
   Motion by Advance Publications, Inc. et al. for leave to appear amici curiae on consideration of the certified question herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.

Judge Smith taking no part.


text:
    45-02 Food Corp., Respondent-Appellant, v 45-02 43rd Realty, LLC, Appellant-Respondent.
    Submitted July 16, 2007;
    decided October 18, 2007
    Reported below, 37 AD3d 522.
   Motions for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Michael Goldstein et al., Respondents, v Venera Held, Appellant.
    Submitted July 23, 2007;
    decided October 18, 2007
    Reported below, 37 AD3d 657.
   Motion for leave to appeal dismissed as untimely. The prior motion for leave to appeal made to the Appellate Division was untimely (see Karger, Powers of the New York Court of Appeals § 12:3, at 436-437 [rev 3d ed 2005]).


text:
    ITC Limited et al., Appellants, v Punchgini, Inc., et al., Respondents.
    Submitted October 15, 2007;
    decided October 18, 2007
   Motion by American Intellectual Property Law Association for leave to appear amicus curiae on consideration of the certified question herein granted only to the extent that the proposed brief is accepted as filed.


text:
    ITC Limited et al., Appellants, v Punchgini, Inc., et al., Respondents.
    Submitted October 15, 2007;
    decided October 18, 2007
   Motion by International Trademark Association for leave to appear amicus curiae on consideration of the certified question herein granted only to the extent that the proposed brief is accepted as filed.


text:
    In the Matter of Javier R., an Infant. Robert R., Appellant; Melinda R., Respondent, et al., Respondent.
    Submitted October 15, 2007;
    decided October 18, 2007
    Reported below, 43 AD3d 1.
   Motion for assignment of counsel granted and Randall S. Carmel, Esq., 53 Jackson Avenue, Syosset, New York 11793 assigned as counsel to the appellant on the appeal herein.


text:
    In the Matter of Curtis McRae, Appellant, v New York City Transit Authority, Respondent.
    Submitted July 30, 2007;
    decided October 18, 2007
    Reported below, 39 AD3d 861.
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).

Judge Jones taking no part.


text:
    Christopher A. Measom et al., Respondents, v Greenwich and Perry Street Housing Corporation, Appellant.
    Submitted August 13, 2007;
    decided October 18, 2007
    Reported below, 42 AD3d 366.
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain this motion for leave to appeal from the order of the Appellate Division where the appeal to the Appellate Division was from an order entered in an appeal from another court (NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]).


text:
    Mark Misk, Appellant, v Joyce G. Moss et al., Defendants, and Angela O’Brien, Respondent.
    Submitted August 6, 2007;
    decided October 18, 2007
    Reported below, 41 AD3d 672.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (see Karger, Powers of the New York Court of Appeals § 5:3, at 109 [rev 3d ed 2005]).


text:
    The People of the State of New York, Respondent, v Nagmeldeen Azaz, Appellant.
    Submitted October 15, 2007;
    decided October 18, 2007
    Reported below, 41 AD3d 610.
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Hector Frazier, Appellant.
    Submitted October 15, 2007;
    decided October 18, 2007
    Reported below, 35 AD3d 759.
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Burton Jeffrey Hunter, Appellant.
    Submitted September 24, 2007;
    decided October 18, 2007
    Reported below, 41 AD3d 885.
   Motion to vacate this Court’s August 31, 2007 dismissal order granted [see 9 NY3d 871].


text:
    The People of the State of New York, Respondent, v Lance Daniel Jenkins, Appellant.
    Submitted October 9, 2007;
    decided October 18, 2007
    Reported below, 40 AD3d 1308.
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 denied as unnecessary and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Anthony Ware, Appellant.
    Submitted October 15, 2007;
    decided October 18, 2007
    Reported below, 36 AD3d 838.
   Motion for assignment of counsel granted and Lynn WL. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    Myrna Walker, Respondent, v Robert Walker, Appellant.
    Submitted August 20, 2007;
    decided October 18, 2007
    Reported below, 42 AD3d 928.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of the Claim of Frederick Wiley, Appellant, v City of Watertown Fire Department, Respondent. Workers’ Compensation Board, Respondent.
    Submitted October 9, 2007;
    decided October 18, 2007
    Reported below, 39 AD3d 975.
   Appeal, insofar as taken from the Appellate Division order denying reconsideration or, in the alternative, leave to appeal to the Court of Appeals, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution; appeal otherwise dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    [877 NE2d 294, 846 NYS2d 76]
    Tom Miro et al., Appellants, v Plaza Construction Corp. et al., Respondents, et al., Defendants. (And a Third-Party Action.)
    Decided October 23, 2007

      APPEARANCES OF COUNSEL

      Paul F. McAloon P.C., New York City (Paul F. McAloon of counsel), and Harry I. Katz, P.C., for appellants.

      Barry McTiernan & Moore, New York City (Laurel A. Wedinger of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order modified, without costs, by denying summary judgment to defendants as to the Labor Law § 240 (1) claim and, as so modified, affirmed, and certified question answered in the negative. Assuming that the ladder was unsafe, it is not clear from the record how easily a replacement ladder could have been procured.

Concur: Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones.


text:
    [877 NE2d 649, 846 NYS2d 599]
    GML, Inc., et al., Appellants, v Cinque & Cinque, P.C., et al., Respondents.
    Decided October 23, 2007

      APPEARANCES OF COUNSEL

      Samuel E. Kramer, New York City, for appellants.

      Cinque & Cinque, P.C., New York City (James P. Cinque of counsel), respondents pro se.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, and the certified question not answered on the ground that it is unnecessary.

Tennessee plaintiffs commenced this legal malpractice action against New York defendants, in which they assert that the Tennessee statute of limitations applies {see CPLR 202). Invoking Tennessee law, plaintiffs further assert that their claim should be tolled because of defendants’ absence from Tennessee. Defendants moved for summary judgment arguing that the matter was untimely. Supreme Court granted defendants’ motion, which the Appellate Division unanimously affirmed, opining that “[t]he tolling provision in the Tennessee statute was not available to plaintiffs, . . . even where, as plaintiffs claim herein, defendants have not developed sufficient contacts with the foreign state for its courts to be capable of asserting personal jurisdiction over them” (35 AD3d 195 [2006], citing Insurance Co. of N. Am. v ABB Power Generation, 91 NY2d 180 [1997]). Plaintiffs contend that since defendants were not subject to in personam jurisdiction in Tennessee, plaintiffs should be able to utilize Tennessee’s tolling provision.

In ABB Power, the issue was whether the Second Circuit correctly held in Stafford v International Harvester Co. (668 F2d 142, 153 [1981]) “that a cause of action cannot accrue for purposes of [CPLR 202] in a state which could not exercise jurisdiction over the cause of action.” We held that the plain and literal meaning of a cause of action accruing without the state means when the cause of action comes into existence, not that a defendant is subject to suit in that other state (see ABB Power at 186). We further held that “CPLR 202 requires that a court, when presented with a cause of action accruing outside New York, should apply the limitation period of the foreign jurisdiction if it bars the claim” (ABB Power at 187). Furthermore, when “borrowing the [foreign jurisdiction’s] Statute of Limitations, its tolling statute is also borrowed” (Childs v Brandon, 60 NY2d 927, 929 [1983]), as the purpose of a tolling statute is to allow a plaintiff additional time to serve a defendant where defendant’s absence from the jurisdiction has made service a practical impossibility.

This action was commenced in New York and, as such, it was not necessary to toll the statute of limitations since defendants— residents of New York—were amenable to suit in New York for the entire period of Tennessee’s statute of limitations. It is irrelevant whether defendants are also subject to suit in Tennessee and unnecessary to determine whether defendants were subject to personal jurisdiction in Tennessee. A conclusion to the contrary would cause the statute of limitations to be tolled indefinitely against these defendants. We do not believe that the Legislature intended this result in enacting CPLR 202.

Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur in memorandum.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, etc.


text:
    In the Matter of Rikki D. Adams, Appellant, v Rochester Fire Department, Respondent.
    Submitted September 17, 2007;
    decided October 23, 2007
   On the Court’s own motion, appeal, insofar as taken from the Appellate Division order denying, upon renewal, appellant’s motion for poor person relief, dismissed, without costs, upon the ground that such order does not finally determine an action or proceeding within the meaning of the Constitution; appeal, insofar as taken from the Supreme Court order dismissing appellant’s application to compel compliance with a subpoena, transferred, without costs, to the Appellate Division, Fourth Department, upon the ground that a direct appeal does not lie (see NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]). Motion for leave to appeal from the above-described Supreme Court order dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion (see NY Const, art VI, § 3 [b]; CPLR 5602). Motion for poor person relief dismissed as academic.

Judge Pigott taking no part.


text:
    Elizabeth Alden, Appellant, v St. Joseph's Hospital Health Center, Respondent.
    Submitted October 1, 2007;
    decided October 23, 2007
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that it does not lie (see CPLR 5601).


text:
    In the Matter of the Estate of Hyman Alpert, Deceased. Jack Alpert, as Executor of William Alpert, Deceased Executor and Trustee of Hyman Alpert, Deceased, et al., Respondents; Gail Alpert Kramer et al., Appellants.
    Submitted August 13, 2007;
    decided October 23, 2007
    Reported below, 37 AD3d 187.
   Motion, insofar as it seeks leave to appeal as against Joseph and Charles Alpert, dismissed as untimely; motion, insofar as it seeks leave to appeal as against Jack L. Alpert, Lois Katz and Faya Cohen, dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Hector Campos, Appellant, v City of New York, Respondent.
    Submitted October 15, 2007;
    decided October 23, 2007
    Reported below, 32 AD3d 287.
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of the Estate of Thomas A. Dane, Deceased. Marguerite L. Dane-Fisher, Petitioner; Thomas M. Dane, Appellant. Lynne M. Lonsdale, Respondent.
    Submitted July 23, 2007;
    decided October 23, 2007
    Reported below, 41 AD3d 1323, 32 AD3d 1233.
   Motion, insofar as it seeks leave to appeal from the June 8, 2007 order of the Appellate Division, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution; motion, insofar as it seeks leave to appeal from the September 22, 2006 order of the Appellate Division, dismissed for failure to demonstrate timeliness as required by section 500.22 (b) (2) of the Rules of Practice of the Court of Appeals (22 NYCRR 500.22 [b] [2]). Motion for a stay dismissed as academic. Motion for poor person relief dismissed as academic.

Judge Pigott taking no part.


text:
    In the Matter of Lemuel A. Davis, Appellant, v County of Westchester et al., Respondents.
    Submitted October 15, 2007;
    decided October 23, 2007
    Reported below, 42 AD3d 791.
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Laurie DiFrancesco et al., Appellants, v County of Rockland, Respondent.
    Submitted September 10, 2007;
    decided October 23, 2007
    Reported below, 41 AD3d 530.
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Helen Ferry, Appellant, v James E. Ferry et al., Respondents, et al., Defendant.
    Submitted August 20, 2007;
    decided October 23, 2007
    Reported below, 34 AD3d 908.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Dominick Giaquinto, Appellant, v Commissioner of New York State Department of Health, Respondent, et al., Respondent.
    Submitted August 27, 2007;
    decided October 23, 2007
    Reported below, 39 AD3d 922.
   Motion by the Empire Justice Center for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    In the Matter of Dominick Giaquinto, Appellant, v Commissioner of New York State Department of Health, Respondent, et al., Respondent.
    Submitted August 27, 2007;
    decided October 23, 2007
    Reported below, 39 AD3d 922.
   Motion by the National Center for Law and Economic Justice, Inc. for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    David Charles Jones, Jr., Appellant, v Jessica A. Bill et al., Respondents.
    Submitted July 25, 2007;
    decided October 23, 2007
    Reported below, 34 AD3d 741.
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed the dismissal of plaintiffs amended complaint against DCFS Trust granted; motion for leave to appeal otherwise dismissed upon the ground that the remaining portion of the Appellate Division order does not finally determine the action within the meaning of the Constitution.


text:
    Debbie Kaminer, Appellant, v Aaron Wexler et al., Respondents.
    Submitted July 2, 2007;
    decided October 23, 2007
    Reported below, 40 AD3d 405.
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that dismissed the appeal from Supreme Court’s order denying reargument, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of David Kirmayer, Appellant, v State of New York Civil Service Commission et al., Respondents.
    Submitted October 15, 2007;
    decided October 23, 2007
    Reported below, 42 AD3d 848.
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Cory McKibbin, Appellant, v Susan Jenkin, as Preliminary Executor of the Estate of Linda McKibbin, Deceased, Respondent.
    Submitted July 23, 2007;
    decided October 23, 2007
    Reported below, 41 AD3d 795.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Natasha RR., a Child Alleged to be Neglected. Columbia County Department of Social Services, Appellant; Malissa SS., Respondent.
    Submitted September 10, 2007;
    decided October 23, 2007
    Reported below, 42 AD3d 762.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of William R. Phillips, Appellant, v Robert Dennison, as Chairman of the New York State Board of Parole, Respondent.
    Submitted June 4, 2007;
    decided October 23, 2007
    Reported below, 41 AD3d 17.
   Motion for leave to appeal dismissed upon the ground that the issues presented have become moot.


text:
    In the Matter of William R. Phillips, Appellant, v Robert Dennison, as Chairman of the New York State Board of Parole, Respondent.
    Submitted June 11, 2007;
    decided October 23, 2007
    Reported below, 41 AD3d 17.
   Motion by Santiago Ramirez for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    David S. Pultz et al., Appellants, v Catherine Economakis et al., Respondents.
    Submitted August 20, 2007;
    decided October 23, 2007
    Reported below, 40 AD3d 24.
   Motion by the Office of the Manhattan Borough President for leave to file an affirmation amicus curiae on the motion for leave to appeal herein granted and the affirmation is accepted as filed.


text:
    David S. Pultz et al., Appellants, v Catherine Economakis et al., Respondents.
    Submitted September 4, 2007;
    decided October 23, 2007
    Reported below, 40 AD3d 24.
   Motion by the City-wide Task Force on Housing Court et al. for leave to file an affirmation amici curiae on the motion for leave to appeal herein granted and the affirmation is accepted as filed.


text:
    In the Matter of Steel Los III/Goya Foods, Inc., Respondent, v Board of Assessors of County of Nassau et al., Appellants, and Bethpage Union Free School District, Intervenor-Respondent. Bethpage Union Free School District et al., Respondents, v Nassau County et al., Appellants, and Goya Foods, Inc., Respondent.
    (Matter No. 1.)
    (Matter No. 2.)
    Submitted October 1, 2007;
    decided October 23, 2007
    Reported below, 35 AD3d 482.
   Motion by Port Washington Union Free School District for leave to appear amicus curiae on the appeal herein denied.


text:
    In the Matter of Abraham Stern, Respondent, v Rebecca Stern, Appellant.
    Submitted August 13, 2007;
    decided October 23, 2007
    Reported below, 40 AD3d 1108.
   Motion by the New York Legal Assistance Group for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    Carroll B. Stoianoff, Appellant, v Consolidated Edison Co. of New York, Inc., Respondent.
    Submitted August 6, 2007;
    decided October 23, 2007
    Reported below, 16 Misc 3d 128(A).
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain this motion for leave to appeal from the order of the Appellate Term (see NY Const, art VI, § 3 [b]; CPLR 5602).


text:
    In the Matter of David Torrance, Respondent-Appellant, v Joseph A. Stout et al., Appellants-Respondents.
    Submitted July 30, 2007;
    decided October 23, 2007
    Reported below, 38 AD3d 910.

   Motion for leave to appeal granted. Cross motion for leave to appeal dismissed as untimely.


text:
    In the Matter of Richard A. Zalk (Admitted as Richard Alan Zalk), an Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted October 15, 2007;
    decided October 23, 2007
    Reported below, 45 AD3d 42.
   Motion by the Association of the Bar of the City of New York for leave to file a memorandum amicus curiae on the motion for leave to appeal herein granted and the memorandum is accepted as filed.


text:
    In the Matter of Richard A. Zalk (Admitted as Richard Alan Zalk), an Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted October 1, 2007;
    decided October 23, 2007
    Reported below, 45 AD3d 42.
   Motion for leave to appeal granted. Motion for a stay granted.


text:
    [878 NE2d 998, 848 NYS2d 583]
    The People of the State of New York, Respondent, v Anthony R. Porter, Appellant.
    Argued October 10, 2007;
    decided November 15, 2007

      APPEARANCES OF COUNSEL

      Timothy Patrick Murphy, Lockport, for appellant.

      Matthew J. Murphy, III, District Attorney, Lockport (Thomas H. Brandt of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, defendant’s motion to suppress statements granted and a new trial ordered.

Whether a particular request for counsel is equivocal presents a mixed question of law and fact. When there is support in the record for the Appellate Division’s determination of a mixed question of law and fact, the issue is beyond further review by this Court. Here, however, there is no support in the record for the determination that defendant’s request for counsel was equivocal. To the contrary, the only evidence— defendant’s words “I think I need an attorney,” coupled with the interviewing officer’s notation that defendant was “asking for an attorney”—demonstrates an unequivocal invocation of defendant’s right to counsel. This is not to say that utterance of the words defendant used would unequivocally invoke the right to counsel in every instance. But on this record, where there were no additional facts upon which a contrary inference could be drawn, further inquiry by the police was not permitted. Defendant’s confession, made after police questioning continued, must therefore be suppressed.

Finally, the Appellate Division’s finding that the police had consent to search the premises where defendant was located has support in the record and is thus beyond our review.

Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur in memorandum.

Order reversed, etc.


text:
    [878 NE2d 999, 848 NYS2d 584]
    The People of the State of New York, Respondent, v Brian Olson, Appellant.
    Argued October 10, 2007;
    decided November 15, 2007
    APPEARANCES OF COUNSEL

      Peter Panaro, Massapequa, for appellant.

      Kathleen M. Rice, District Attorney, Mineola (Lauren Del Giorno and Peter A. Weinstein of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The Appellate Division affirmed Supreme Court’s judgment convicting defendant, after a bench trial, of assault in the first degree and criminal possession of a weapon in the fourth degree.

Defendant argues that the Appellate Division applied the incorrect legal standard in determining that the verdict was not against the weight of the evidence. We disagree. The Appellate Division rejected defendant’s argument that the verdict was against the weight of the evidence, concluding, after exercising its factual review power, that the trial court’s determination concerning credibility and the weight to be accorded the evidence was supported by the record. Mere reference to People v Gaimari (176 NY 84 [1903]) “does not indicate that the Court failed to apply the proper legal standard for analyzing defendant’s challenge to the weight of the evidence supporting the conviction” (People v Vega, 7 NY3d 890, 891 [2006], citing People v Romero, 7 NY3d 633, 645-646 [2006]).

Defendant further argues that the Appellate Division erred in not reversing his conviction because the trial court improperly shifted to defendant the burden of proving justification, failed to view the evidence of justification in the light most favorable to defendant and applied the wrong legal standard regarding the amount of force one can use for justification purposes. This argument is also unavailing. Here, the trial court, after hearing the testimony and finding that defendant committed an assault, properly considered whether defendant’s actions were justified. It concluded they were not and that the People “shouldered their burden of disproving, beyond a reasonable doubt. . . the defense of justification.” The trial court, therefore, committed no reversible error.

We have considered defendant’s remaining contentions and conclude that his legal sufficiency argument as to the weapon possession charge is unpreserved and that his interest of justice argument is beyond our review.

Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.

Order affirmed in a memorandum.


text:
    In the Matter of Adult Home at Erie Station, Inc., Respondent, v Assessor and Board of Assessment Review of City of Middletown et al., Appellants.
    Submitted November 5, 2007;
    decided November 15, 2007
    Reported below, 36 AD3d 699.
   Motion by New York Association of Homes and Services for the Aging for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and 24 copies filed within seven days. Cross motion to strike denied.


text:
    In the Matter of Susan Baba, Appellant, v Martin Evans et al., Respondents.
    Submitted September 10, 2007;
    decided November 15, 2007
    Reported below, 2007 NY Slip Op 73889(U).
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Bi-Economy Market, Inc., Appellant, v Harleysville Insurance Company of New York et al., Respondents.
    Submitted October 22, 2007;
    decided November 15, 2007
    Reported below, 37 AD3d 1184.
   Motion by New York Insurance Association et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Rachel Ehrenfeld, Appellant, v Khalid Salim Bin Mahfouz, Respondent.
    Submitted October 22, 2007;
    decided November 15, 2007
   Motion by the Middle East Forum for leave to appear amicus curiae on consideration of the certified question herein denied as untimely (see Rules of Prac of Ct of Appeals [22 NYCRR] § 500.23).

Judge Smith taking no part.


text:
    In the Matter of Gail Murtaugh, Individually and Doing Business as Crosby Hill Auto Racing, et al., Appellants, v New York State Department of Environmental Conservation et al., Respondents. State of New York et al., Respondents, v Gail Murtaugh, Individually and Doing Business as Crosby Hill Auto Racing, et al., Appellants.
    (Proceeding No. 1.)
    (Proceeding No. 2.)
    Submitted September 4, 2007;
    decided November 15, 2007
    Reported below, 42 AD3d 986.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Elaine Pachter, Respondent, v Bernard Hodes Group, Inc., Appellant.
    Decided November 15, 2007
   Certification of questions by the United States Court of Appeals for the Second Circuit, pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), accepted and the issues presented are to be considered after briefing and argument.

Concur: Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones.


text:
    The People of the State of New York, Respondent, v Brandon Allen, Appellant.
    Submitted October 29, 2007;
    decided November 15, 2007
    Reported below, 42 AD3d 331.
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Corey Edwards, Appellant.
    Submitted November 13, 2007;
    decided November 15, 2007
    Reported below, 28 AD3d 491.
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Gary Freycinet, Appellant.
    Submitted October 29, 2007;
    decided November 15, 2007
    Reported below, 41 AD3d 731.
   Motion for assignment of counsel granted and Lynn WL. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Appellant-Respondent, v Raymond C. George, Respondent-Appellant.
    Submitted November 5, 2007;
    decided November 15, 2007
    Reported below, 43 AD3d 560.
   Motion for assignment of counsel granted and David J. Wu-kitsch, Esq., care of McNamee Lochner Titus & Williams, P.C., 677 Broadway, Albany, New York 12207 assigned as counsel to the respondent-appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Fatin Johnson, Appellant.
    Submitted October 22, 2007;
    decided November 15, 2007
    Reported below, 43 AD3d 288.
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Franklyn Montilla, Appellant.
    Submitted November 5, 2007;
    decided November 15, 2007
    Reported below, 37 AD3d 281.
   Motion for assignment of counsel granted and Steven Banks, Esq., the Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York ex rel. Boris Teichman (Teishman), Appellant, v Brian Riordan, as Warden, Respondent.
    Submitted September 4, 2007;
    decided November 15, 2007
    Reported below, 36 AD3d 504.
   Motion for reargument denied [see 8 NY3d 998 (2007)].


text:
    Oleg Rivkin, Appellant, v Century 21 Teran Realty LLC et al., Respondents, et al., Defendants.
    Submitted October 29, 2007;
    decided November 15, 2007
   Motion by New York State Association of Realtors, Inc. for leave to file a brief amicus curiae on consideration of the certified question herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    [878 NE2d 1015, 848 NYS2d 599]
    Peter Miller, Appellant, v Consolidated Rail Corporation et al., Respondents.
    Decided November 19, 2007

      APPEARANCES OF COUNSEL

      Buckley, Mendleson, Criscione & Quinn, Albany (John J. Criscione of counsel), for appellant.

      McNamee, Lochner, Titus & Williams, P.C., Albany (Scott A. Barbour of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

Defendant CSX was entitled to summary judgment dismissing the complaint because plaintiff failed to raise a triable question of fact on the issue of whether CSX breached a duty of care it owed plaintiff as owner of the railroad yard where plaintiff was injured. Absent a hazardous condition or other circumstance giving rise to an obligation to provide exterior lighting for a particular area, landowners are generally not required “to illuminate their property during all hours of darkness” (Peralta v Henriquez, 100 NY2d 139, 145 [2003]). In this case, even assuming CSX had an obligation to light the railroad yard, it is undisputed that CSX provided lighting in the yard. The railroad yard was dark at the time of plaintiffs injury due to a power outage—a problem that CSX did not cause or control and that was known to plaintiff when he entered the property. Thus, plaintiff has failed to come forward with any proof that his injury, caused when he tripped on the ramp of another truck, was attributable to negligence on the part of CSX.

Chief Judge Kaye and Judges Ciparick, Grapfeo, Smith, Pigott and Jones concur; Judge Read taking no part.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, in a memorandum.


text:
    In the Matter of the Commissioner of Social Services of Ulster County, on Behalf of Diann F. Montgomery, Respondent, v Kenley Powell, Appellant.
    Submitted October 9, 2007;
    decided November 19, 2007
    Reported below, 39 AD3d 946.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Shawn Green, Appellant, v Glenn S. Goord, as Commissioner of New York State Department of Correctional Services, Respondent.
    Submitted October 22, 2007;
    decided November 19, 2007
   Motion for reargument of motion for leave to appeal denied [see 9 NY3d 886 (2007)].


text:
    Chester Johnson, Also Known as Chester Davidson, Appellant, v State of New York, Respondent.
    Submitted October 9, 2007;
    decided November 19, 2007
    Reported below, 2007 NY Slip Op 69287(U).
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Debbie Kaminer, Appellant, v Aaron Wexler et al., Respondents.
    Submitted October 22, 2007;
    decided November 19, 2007
    Reported below, 2007 NY Slip Op 76520(U).
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Charles McAllister, Appellant, v Glenn S. Goord, as Commissioner of New York State Department of Correctional Services, Respondent.
    Submitted November 5, 2007;
    decided November 19, 2007
    Reported below, 42 AD3d 765.
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Melanie L. McCulley et al., Appellants, v Scott C. Sandwick, Respondent.
    Submitted November 5, 2007;
    decided November 19, 2007
    Reported below, 43 AD3d 624.
   Appeal, insofar as taken from that portion of the Appellate Division order that affirmed the denial of appellants’ CPLR 4404 postjudgment motion, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; appeal otherwise dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the two-Justice dissent is not on a question of law (see CPLR 5601 [a]; Karger, Powers of the New York Court of Appeals § 14:3, at 501 [rev 3d ed]).


text:
    Joan Messner, Appellant, v 112 East 83rd Street Tenants Corp. et al., Respondents.
    Submitted September 24, 2007;
    decided November 19, 2007
    Reported below, 42 AD3d 356.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Juvondi Pender, Appellant, v New York State Office of Mental Retardation and Developmental Disabilities et al., Respondents.
    Submitted October 1, 2007;
    decided November 19, 2007
    Reported below, 27 AD3d 756.
   Motion for reargument of motion for leave to appeal denied. Motion for poor person relief dismissed as academic [see 9 NY3d 805 (2007)].


text:
    The People of the State of New York, Respondent, v Bronson Frank, Appellant.
    Submitted October 15, 2007;
    decided November 19, 2007
    Reported below, 37 AD3d 1043.
   Motion for reargument of motion for leave to appeal denied [see 9 NY3d 803 (2007)].


text:
    The People of the State of New York ex rel. Khalil Abdul-Aziz, Appellant, v Brian Fischer, Respondent.
    Submitted August 27, 2007;
    decided November 19, 2007
    Reported below, 2007 NY Slip Op 73519(U).
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    United Pickle Products Corp. et al., Respondents, v Prayer Temple Community Church, Appellant.
    Submitted September 24, 2007;
    decided November 19, 2007
    Reported below, 43 AD3d 307.
   Motion for leave to appeal denied with $100 costs and necessary reproduction disbursements. Motion for a stay dismissed as academic.


text:
    [879 NE2d 157, 849 NYS2d 18]
    Cordelia A. Corsino et al., Appellants, v New York City Transit Authority et al., Respondents.
    Decided November 20, 2007
    APPEARANCES OF COUNSEL

      Mischel & Horn, P.C., New York City (Scott T. Horn of counsel), for appellants.

      Cerussi & Spring, White Plains (Peter J. Morris and Jeffrey N. Land of counsel), for New York City Transit Authority and others, respondents.

      Law Offices of Kral, Clerkin, Redmond, Ryan, Perry & Girvan, LLP, New York City (Oliver W. Williams of counsel), for Villafane Electric Corp., respondent.
   OPINION OF THE COURT

Memorandum.

The Appellate Division order should be modified, with costs to plaintiffs against defendants New York City Transit Authority, CAB Associates and Villafane Electric Corp. by denying the motions for summary judgment by these defendants and, as so modified, affirmed, with costs to defendant Sheldon Electric Company, Inc. against plaintiffs.

Except as to defendant Sheldon Electric Company, Inc., we agree with Supreme Court and the dissenting Justices at the Appellate Division that triable issues of fact exist as to whether the hazardous condition that caused the injured plaintiffs fall was the result of negligence (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]) and as to whether the owner and contractor defendants exercised the requisite supervisory or safety control over defendant Villafane Electric Corp.’s work on the property so as to preclude summary judgment dismissing the complaint as to those defendants (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352-353 [1998]).

The record establishes as a matter of law that Sheldon did not exercise supervisory or safety control over the work in question, and as to that defendant the complaint was properly dismissed.

Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur in memorandum.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order modified, etc.


text:
    Acme American Repairs, Inc., Respondent, v Rhoda Uretsky et al., Appellants.
    Submitted September 24, 2007;
    decided November 20, 2007
    Reported below, 39 AD3d 675.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Anonymous, an Attorney.
    Submitted September 17, 2007;
    decided November 20, 2007
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    In the Matter of Mary E. Carriero et al., Appellants, v Town Board of the Town of Stillwater et al., Respondents.
    Submitted October 1, 2007;
    decided November 20, 2007
    Reported below, 41 AD3d 1011.
   Motion for leave to appeal, insofar as made by Walter Yankowski, Cathy Yankowski and Paula Volpe, dismissed upon the ground that as to these appellants the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and is not an order of the type provided for in CPLR 5602 (a) (2); motion for leave to appeal otherwise denied.


text:
    Bennett A. Cohen, Appellant, v Wallace & Minchenberg et al., Respondents, et al., Defendants.
    Submitted June 11, 2007;
    decided November 20, 2007
    Reported below, 39 AD3d 689, 690, 691.
   Motion, insofar as it seeks leave to appeal from the Appellate Division order dismissing the appeal from the November 2004 Supreme Court order insofar as it denied reargument and affirming the Supreme Court order insofar as it denied renewal, dismissed upon the ground that such Appellate Division order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Consolidated Construction Group, LLC, Appellant, v Bethpage Union Free School District, Respondent.
    Submitted October 9, 2007;
    decided November 20, 2007
    Reported below, 39 AD3d 792.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Elvin Lebron, Appellant, v Patricia Bailey, as New York County Assistant District Attorney, et al., Respondents.
    Submitted October 22, 2007;
    decided November 20, 2007
    Reported below, 2007 NY Slip Op 66835(U).
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Erich Mattice, Respondent, v Laura Kreider, Appellant.
    Submitted July 23, 2007;
    decided November 20, 2007
    Reported below, 41 AD3d 1028.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    NYCTL 1999-1 Trust et al., Respondents, v NY Pride Holdings, Inc., et al., Defendants, and Union Street Management Group, Ltd., Appellant. Baroda Properties, Inc., et al., Proposed Intervenors-Respondents.
    Submitted October 22, 2007;
    decided November 20, 2007
    Reported below, 34 AD3d 774.
   Motion for reargument of motion for leave to appeal denied [see 9 NY3d 907 (2007)].


text:
    Village of Pomona, Appellant, v Town of Ramapo et al., Respondents.
    Submitted August 27, 2007;
    decided November 20, 2007
    Reported below, 41 AD3d 837.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Jo-Anne C. Schlakman, Respondent, v Geoffrey C. Schlakman, Appellant.
    Submitted October 29, 2007;
    decided November 20, 2007
    Reported below, 38 AD3d 640.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of the Claim of George Taylor, Appellant, v Raleigh Hotel et al., Respondents. Workers’ Compensation Board, Respondent.
    Submitted October 29, 2007;
    decided November 20, 2007
    Reported below, 35 AD3d 1053.
   Motion for reargument of motion for leave to appeal denied [see 9 NY3d 908 (2007)].


text:
    Tamara Vid et al., Appellants, v Glenn J. Kaufman et al., Respondents, et al., Defendants.
    Submitted October 15, 2007;
    decided November 20, 2007
    Reported below, 39 AD3d 740.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    [879 NE2d 158, 849 NYS2d 19]
    In the Matter of 333 East 49th Associates, LP, et al., Appellants, v New York State Division of Housing and Community Renewal, Office of Rent Administration, Respondent.
    Decided November 27, 2007

      APPEARANCES OF COUNSEL

      Shaw and Binder, New York City (Robert H. Gordon of counsel), for appellants.

      Gary R. Connor, New York City, and Jeffrey G. Kelly for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

A rational basis exists for the Division of Housing and Community Renewal’s determination that petitioners failed to maintain adequate janitorial services warranting a rent reduction (see Matter of Gilman v New York State Div. of Hous. & Community Renewal, 99 NY2d 144, 149 [2002]). The determination, implicitly rejecting petitioners’ claim that the violation was de minimis, is rationally based on the inspector’s observations of debris in the compactor rooms, which confirmed the tenants’ sworn complaint of filthy compactor rooms that were not maintained. DHCR’s determination that petitioners reduced services by failing to maintain the compactor rooms was not irrational and must be sustained (see Matter of KSLM-Columbus Apts., Inc. v New York State Div. of Hous. & Community Re newal, 5 NY3d 303, 312 [2005]; Matter of Mid-State Mgt. Corp. v New York City Conciliation & Appeals Bd., 112 AD2d 72, 75-76 [1st Dept 1985], affd 66 NY2d 1032 [1985]).

Chief Judge Kaye and Judges Ciparick, Graffeo and Jones concur; Judges Read, Smith and Pigott dissent and vote to reverse for the reasons stated in the dissenting memorandum by Justice George D. Marlow at the Appellate Division (40 AD3d 516, 517-520 [2007]).

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, in a memorandum.


text:
    In the Matter of Amber L. Orange County Department of Social Services, Respondent; Debbie L., Appellant.
    Submitted October 15, 2007;
    decided November 27, 2007
    Reported below, 39 AD3d 651.
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]; see Eaton v State of New York, 76 NY2d 824 [1990]).


text:
    In the Matter of Robert Conroy et al., Appellants, v State Committee of the Independence Party of New York et al., Respondents.
    Submitted October 15, 2007;
    decided November 27, 2007
    Reported below, 43 AD3d 834.
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal granted.


text:
    Bella Davis, Respondent, v Michael Melnicke, Respondent, and Naftali Weisz et al., Nonparty Appellants.
    Submitted September 4, 2007;
    decided November 27, 2007
    Reported below, 39 AD3d 378.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution (see Karger, Powers of the New York Court of Appeals § 5:18, at 151-152 [3d ed rev]).


text:
    In the Matter of Hasaun Grigger, Appellant, v Glenn S. Goord, as Commissioner of Correctional Services, et al., Respondents.
    Submitted October 1, 2007;
    decided November 27, 2007
    Reported below, 41 AD3d 1128, 2007 NY Slip Op 77193(U).
   Motion, insofar as it seeks leave to appeal from the Appellate Division order of affirmance, dismissed as untimely (see CPLR 5513 [b]; Eaton v State of New York, 76 NY2d 824 [1990]); motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Edward Koehl, Appellant, v S. Mirza et al., Respondents.
    Submitted September 4, 2007;
    decided November 27, 2007
    Reported below, 39 AD3d 1092.
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved (see Haywood v Drown, 9 NY3d 481 [2007]). Motion for poor person relief dismissed as academic.


text:
    In the Matter of Leo A. Marino, Appellant, v New York City Police Department, Records Access Officer, Respondent.
    Submitted October 15, 2007;
    decided November 27, 2007
    Reported below, 2007 NY Slip Op 71358(U), 77412(U).
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that it does not lie (see CPLR 5601). Motion for leave to appeal dismissed upon the ground that it does not lie (see CPLR 5602). Motion for poor person relief dismissed as academic.


text:
    Mary McKinney et al., Appellants, v Commissioner of the New York State Department of Health et al., Respondents.
    Submitted October 15, 2007;
    decided November 27, 2007
    Reported below, 41 AD3d 252.
   Motion by the Association of the Bar of the City of New York for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    Christopher A. Measom et al., Appellants, v Greenwich and Perry Street Housing Corporation, Respondent.
    Submitted September 4, 2007;
    decided November 27, 2007
    Reported below, 42 AD3d 366, 227 AD2d 312.
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain this motion for leave to appeal from the order of the Appellate Division where the appeal to the Appellate Division was from an order entered in an appeal from another court (NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]).


text:
    John Moody, Respondent, v Svetlana Sorokina, Appellant.
    Submitted October 1, 2007;
    decided November 27, 2007
    Reported below, 40 AD3d 14.
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that simultaneous appeals do not lie to the Appellate Division and the Court of Appeals, unless within 20 days appellant, if she be so advised, serves upon all parties and files in the Court of Appeals a notice that she has abandoned her appeal to the Appellate Division and stipulates for the withdrawal of that appeal (see Parker v Rogerson, 35 NY2d 751, 753-754 [1974]). Motion for leave to appeal dismissed upon the ground that simultaneous appeals do not lie to both the Appellate Division and the Court of Appeals (see id,.). Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York, Respondent, v Kofi O. Hampton, Appellant.
    Submitted November 13, 2007;
    decided November 27, 2007
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no civil appeal lies from the order entered in this criminal proceeding (see NY Const, art VI, § 3 [b]; CPLR 5601; CPL 450.90).


text:
    Joseph D. Robinson, Respondent, v CSX Transportation, Appellant.
    Submitted August 13, 2007;
    decided November 27, 2007
    Reported below, 40 AD3d 1384.
   Motion by the Association of American Railroads for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.

Judge Read taking no part.


text:
    In the Matter of Angela M. Rodriguez, Appellant, v Robert Doar, as Commissioner of Onondaga County Department of Social Services, et al., Respondents.
    Submitted October 1, 2007;
    decided November 27, 2007
    Reported below, 42 AD3d 944.
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


text:
    In the Matter of the Estate of Anthony S. Sadowski, Jr., Deceased. Michele Lippa Gartner, Respondent; Joseph A.F. Sadowski, Appellant.
    Submitted October 1, 2007;
    decided November 27, 2007
    Reported below, 2007 NY Slip Op 71127(U), 76500(U).
   Motion, insofar as it seeks leave to appeal from the Appellate Division order dismissing an appeal from a decision, dismissed upon the ground that no motion for leave to appeal lies from an Appellate Division order dismissing an appeal from a decision (see CPLR 5602; Matter of Mixon v Clark, 3 NY3d 688 [2004]); motion, insofar as it seeks leave to appeal from the Appellate Division order denying a motion for reconsideration or, in the alternative, leave to appeal to the Court of Appeals, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution. Motion for a stay dismissed as academic.


text:
    St. Joseph Hospital of Cheektowaga et al., Appellants, v Antonia C. Novello, as New York State Health Commissioner, et al., Respondents.
    Submitted November 5, 2007;
    decided November 27, 2007
    Reported below, 43 AD3d 139.
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Vivian Scarangella et al., Respondents, v Anthony LaBorde, Also Known as Abdul Majid, Appellant.
    Submitted October 22, 2007;
    decided November 27, 2007
    Reported below, 2007 NY Slip Op 75179(U).
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


text:
    In the Matter of John Vassar, an Attorney, Appellant. Grievance Committee for the Second and Eleventh Judicial Districts, Respondent.
    Submitted November 13, 2007;
    decided November 27, 2007
    Reported below, 43 AD3d 83.
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Christian M. Welch, Appellant, v Amy E. Welch, Respondent. (And Another Related Proceeding.)
    Submitted September 4, 2007;
    decided November 27, 2007
    Reported below, 39 AD3d 910.
   Motion for leave to appeal dismissed for failure to demonstrate timeliness as required by section 500.22 (b) (2) of the Rules of Practice of the Court of Appeals (22 NYCRR 500.22 [b] [2]).


text:
    [879 NE2d 160, 849 NYS2d 21]
    In the Matter of Robert M. Restaino.
    Decided December 13, 2007
   OPINION OF THE COURT

On the Court’s own motion, it is determined that Honorable Robert M. Restaino is suspended, with pay, effective immediately, from the office of Judge of the Niagara Falls City Court, Niagara County, pending disposition of his request for review of a determination by the State Commission on Judicial Conduct.

Concur: Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith and Jones. Taking no part: Judge Pigott.


text:
    Diane Carter et al., Appellants, v City of New York, Respondent, et al., Defendant. (And Another Action.) Sharon Sims, Appellant, v City of New York, Respondent.
    (Action No. 1.)
    (Action No. 3.)
    Submitted August 27, 2007;
    decided December 13, 2007

      Reported below, 38 AD3d 702.
   Motion by the Carter appellants for leave to appeal denied with $100 costs and necessary reproduction disbursements. Motion by appellant Sims for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    Jericho Water District, Respondent, v One Call Users Council, Inc., et al., Appellants.
    Submitted December 10, 2007;
    decided December 13, 2007
    Reported below, 37 AD3d 136.
   Motion by New York State Department of Public Service for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    In the Matter of Julia BB. and Others, Children Alleged to be Severely Abused, Repeatedly Abused, Abused and/or Neglected. Saratoga County Department of Social Services, Appellant; Diana BB., Respondent. In the Matter of Julia BB. and Others, Children Alleged to be Severely Abused, Repeatedly Abused, Abused and/or Neglected. Saratoga County Department of Social Services, Appellant; Francis BB., Respondent.
    (Proceeding No. 1.)
    (Proceeding No. 2.)
    Submitted December 10, 2007;
    decided December 13, 2007
    Reported below, 42 AD3d 208.
   Motion by the National Council for Adoption for leave to file an affidavit amicus curiae on the motion for leave to appeal herein granted and the affidavit is accepted as filed.


text:
    In the Matter of Julia BB. and Others, Children Alleged to be Severely Abused, Repeatedly Abused, Abused and/or Neglected. Saratoga County Department of Social Services, Appellant; Diana BB., Respondent. In the Matter of Julia BB. and Others, Children Alleged to be Severely Abused, Repeatedly Abused, Abused and/or Neglected. Saratoga County Department of Social Services, Appellant; Francis BB., Respondent.
    (Proceeding No. 1.)
    (Proceeding No. 2.)
    Submitted November 26, 2007;
    decided December 13, 2007
    Reported below, 42 AD3d 208.
   Motion by Elizabeth Bartholet, Esq. for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    Geidy Mayorga, Appellant, v Jocarl & Ron Co., Respondent.
    Submitted November 26, 2007;
    decided December 13, 2007
    Reported below, 41 AD3d 132.
   Motion to dismiss the appeal herein granted and appeal dismissed, with $400 costs and $100 costs of motion, upon the ground that the two-Justice dissent at the Appellate Division is not on a question of law (see CPLR 5601 [a]).


text:
    The People of the State of New York, Respondent, v Roman Baret, Appellant.
    Submitted December 3, 2007;
    decided December 13, 2007
    Reported below, 43 AD3d 648.
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Michael Crumble, Appellant.
    Submitted December 3, 2007;
    decided December 13, 2007
    Reported below, 43 AD3d 953.
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Alvaro Cumberbatch, Appellant.
    Submitted November 26, 2007;
    decided December 13, 2007
    Reported below, 36 AD3d 157.
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Robert Finley, Appellant.
    Submitted December 10, 2007;
    decided December 13, 2007
    Reported below, 42 AD3d 917.
   Motion for assignment of counsel granted and Timothy Patrick Murphy, Esq., 5528 Main Street, Williamsville, New York 14221 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Appellant, v Ruben Luciano, Respondent.
    Submitted November 26, 2007;
    decided December 13, 2007
    Reported below, 44 AD3d 123.
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the respondent on the appeal herein.