author: ClPARICK, J. G.B. Smith, J.

text:
    [841 NE2d 747, 807 NYS2d 588]
    Estelle Gilson et al., Appellants, v Metropolitan Opera, Respondent, et al., Defendants.
    Argued October 19, 2005;
    decided November 22, 2005

      POINTS OF COUNSEL

      Mischel & Horn, P.C., New York City (Scott T. Horn of counsel), and Law Offices of John C. Dearie & Associates for appellants.
    The Appellate Division erred as a matter of law in granting defendant’s motion for summary judgment dismissing the complaint. (Di Ponzio v Riordan, 89 NY2d 578; Kush v City of Buffalo, 59 NY2d 26; Basso v Miller, 40 NY2d 233; Rizk v Cohen, 73 NY2d 98; Minelli v Good Samaritan Hosp., 213 AD2d 705; Gant v Sparacino, 203 AD2d 515; Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439; S.J. Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338; Ferrante v American Lung Assn., 90 NY2d 623; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395.)

      McCabe, Collins, McGeogh & Fowler, LLP, Carle Place (Patrick M. Murphy of counsel), for respondent.
    I. The proof submitted on the motion clearly demonstrated that plaintiffs-appellants had no cause of action against defendant-respondent Metropolitan Opera. (Lawes v Board of Educ. of City of N.Y., 16 NY2d 302; Grant v Metropolitan Transp. Auth., 67 AD2d 611; Basso v Miller, 40 NY2d 233; Alfaro v Wal-Mart Stores, Inc., 210 F3d 111; Newsome v Cservak, 130 AD2d 637; Prince v New York City Hous. Auth., 302 AD2d 285; Crosland v New York City Tr. Auth., 68 NY2d 165; Lesser v Manhattan & Bronx Surface Tr. Operating Auth., 157 AD2d 352; Caputo v New York City Tr. Auth., 86 AD2d 883; Clarke v New York City Tr. Auth., 174 AD2d 268.) II. Plaintiffs-appellants’ newly minted claims of New York City Building Code violations are insufficient to create a triable question of fact. (Murphy v Conner, 84 NY2d 969; Goncalves v Regent Intl. Hotels, 58 NY2d 206; Derdiarian v Felix Contr. Corp., 51 NY2d 308.) III. Plaintiffs-appellant’s claims regarding the violation of rules and New York City Building Code violations which had been withheld from the pleadings and bill of particulars were insufficient to create a triable question of fact. (Maynard v New York City Tr. Auth., 267 AD2d 37; Spiteri v Chatwal Hotels, 247 AD2d 297; Boland v Koppelman, 251 AD2d 176; Vine v

      Manville Sales Corp., 175 AD2d 380; Sanna v Potter, 179 AD2d 982; Dodes v North Shore Univ. Hosp., 149 AD2d 455; Ifrach v Neiman, 306 AD2d 380.)
   OPINION OF THE COURT

ClPARICK, J.

According to plaintiffs, on December 3, 2001, plaintiff Estelle Gilson attended a performance at the Metropolitan Opera. She sat in the aisle seat in the same row where Donald Taitt (who suffers from Parkinson’s disease and walked unsteadily) and his wife were seated. During the 20-minute intermission, plaintiff left her seat, and returned prior to the second act. The Taitts also left their seats during the intermission, but returned unescorted after the houselights had dimmed and the second act had begun. As the Taitts reached their row, plaintiff rose from her seat and moved down into the stepped aisle to allow the Taitts to pass. Donald Taitt then lost his balance and fell onto plaintiff, causing her to fall down four steps into the balcony railing and injure herself.

Plaintiffs commenced this action alleging that the injuries were caused by the negligence of defendant in the ownership, operation, management, supervision, maintenance and control of its premises. Defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (7), or in the alternative for summary judgment pursuant to CPLR 3212, arguing that it did not breach any duty owed to plaintiff. Without commenting on the motion to dismiss, Supreme Court denied defendant’s motion for summary judgment holding that issues of fact precluded summary judgment. A divided Appellate Division reversed, concluding that Metropolitan Opera did not breach any recognized duty owed to plaintiff (15 AD3d 55 [1st Dept 2005]). Plaintiffs appeal as of right on the basis of the two-Justice dissent, and we now affirm.

In any negligence action, the threshold issue before the court is whether the defendant owed a legally recognized duty to the plaintiff. As we observed only last month in Matter of New York City Asbestos Litig. (5 NY3d 486, 493 [2005]), we make this determination “by balancing factors, including the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability.” We noted our reluctance to extend the duty of care such that a defendant may become liable for failure to control the conduct of others, imposing such duty only where “the defendant’s relationship with either the tortfeasor or the plaintiff places the defendant in the best position to protect against the risk of harm; and that the specter of limitless liability is not present” (id. at 494 [internal quotation marks omitted]).

Here, plaintiffs argue that in exercising its duty of care to its patrons, defendant had an affirmative duty to escort Taitt to his seat because of his obvious infirmity. Defendant counters that plaintiffs’ proposed duty would place undue burden on theater owners beyond the limits of the duty to maintain their premises in reasonably safe condition. We agree with defendant.

Adopting plaintiffs’ proposed duty would significantly enlarge the duty of theater owners to their patrons. Defendant cannot be “an insurer of the safety of [its patrons, and its] duty is only to exercise reasonable care for their protection” (Prosser and Keeton, Torts § 61, at 425 [5th ed]). Moreover, defendant’s relationship both to plaintiffs and Taitt did not put it in the best position to protect from the risk of harm posed by Taitt’s infirmity (see Alfaro v Wal-Mart Stores, Inc., 210 F3d 111 [2d Cir 2000]).

Additionally, plaintiffs argue and the dissent concludes that defendant’s “Performance Staff Rules and Guidelines” provide some independent evidence of negligence. The internal policy upon which plaintiffs rely provided that “[t]icket holders should be escorted to their seats with the aid of flashlights when the House Lights are low, and particularly requested to watch their step.” These internal guidelines go beyond the standard of ordinary care and cannot serve as a basis for imposing liability. As we stated in Sherman v Robinson (80 NY2d 483, 489 n 3 [1992]), “[violation of a company’s internal rules is not negligence in and of itself, and where such rules require a standard that transcends reasonable care, breach cannot be considered evidence of negligence.”

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

G.B. Smith, J.

(dissenting). Because there are material questions of fact as to whether employees of the Metropolitan Opera were negligent when they permitted, an infirm patron to enter a darkened auditorium without assistance or lighting, summary judgment should not have been granted. Accordingly, I dissent.

Plaintiff Estelle Gilson attended a performance of the Metropolitan Opera (Met) at Lincoln Center in December 2001, sitting in an aisle seat. An elderly couple with seats inside the row, Donald and Caroline Taitt, returned approximately 10 minutes late from an intermission, after the houselights had gone down, without any assistance from ushers. Donald Taitt suffered from Parkinson’s disease and Alzheimer’s disease and, allegedly, looked particularly infirm on this night. When plaintiff Gilson got up and stepped into the aisle to give the Taitts room to pass, Donald Taitt lost his balance and fell into her, knocking her down some steps and into the balustrade at the edge of the balcony. These are the alleged facts.

The trial court denied the Met’s motion for summary judgment, stating there were “questions of fact including, but[ ] not limited to[,] whether defendant maintained the stair aisles in a dangerous manner thereby causing a dangerous condition which caused the plaintiff’s accident” (Gilson v Metropolitan Opera, Sup Ct, Bronx County, Apr. 9, 2004, Index No. 6001/02). The Appellate Division reversed the order and dismissed the claim against the Met in a 3-2 decision. The majority reasoned that the facts did not demonstrate that the Met had a duty to provide an escort for Mr. Taitt. The two-Justice dissent disagreed, arguing that there were material issues of fact requiring a trial.

Only the existence of a bona fide issue raised by evidentiary facts and not one based on conclusory or irrelevant allegations will suffice to defeat summary judgment (Rotuba Extruders v Ceppos, 46 NY2d 223 [1978]). “Summary judgment is often termed a drastic remedy and will not be granted if there is any doubt as to the existence of a triable issue. ... It does not deny the parties a trial; it merely ascertains that there is nothing to try” (Siegel, NY Prac § 278, at 459-460 [4th ed]).

In Longacre v Yonkers R.R. Co. (236 NY 119, 123 [1923]), this Court held that a jury had the right to determine whether employees of a railroad breached the standard of reasonable care when they failed to recognize the growing danger that two unruly children created for themselves as they ran about the rail-car unrestrained. The Court reasoned that although there was no duty to operate railcars for the purpose of safely carrying unruly children, a motorman’s failure to do any reasonable thing to prevent an accident could have fallen short of reasonable care. The Court wrote:

“The real and full question is whether the [railroad’s] employees when they saw two young children escaping from their attendant and running about the car ought to have done some reasonable thing to prevent such an accident as happened. It was not bound to take the particular step of closing the vestibule doors or of closing the doors leading to the platform or of driving the children back into the car or of putting them off of the car. . . . [B]ut we think that a jury had the right to say that when it failed to exercise any of them it fell short of reasonable care. Of course a railroad is not bound to construct or operate its cars for the purpose of safely carrying unruly children or drunken adults.” {Id. at 124.)

Likewise, in the present matter, a jury should be given the opportunity to say that the Met’s conduct did or did not fall short of reasonable care when employees let Mr. Taitt into the theater without an usher escorting him with a flashlight, despite the Met’s argument that it had no duty to look out for infirm patrons.

In concluding that defendant is entitled to summary judgment, this Court ignores its own precedents. In Basso v Miller (40 NY2d 233 [1976]), we held that a defendant has a duty to keep its premises in a reasonably safe condition. This Court stated further that a landowner must act as a reasonable person in maintaining his or her property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk (id. at 241). In Gallagher v St. Raymond’s R.C. Church (21 NY2d 554, 557 [1968]), this Court stated: “Whenever the general public is invited into stores, office buildings and other places of public assembly, the owner is charged with the duty of providing the public with a reasonably safe premises, including a safe means of ingress and egress.” Providing lighting to one’s property may be a reasonable response for a private landowner who knows, or should know, that someone visiting his property will confront a hazard that could be reasonably avoided by illumination (Peralta v Henriquez, 100 NY2d 139, 144 [2003]). The majority argues that defendant, through its employees, was not in a position to assess the risk posed by Mr. Taitt’s ambulation. This argument ignores the Met’s basic duty to keep patrons from harm since “[l]andowners have a duty to maintain their property in a reasonably safe condition whether the property is open to the public or not” (id.). Moreover, the Met’s internal policy recognizes the use of a flashlight as being important. If a trial were allowed, plaintiff could attempt to prove that the Met was negligent in failing to provide a flashlight and to show that the failure was not even in accord with the Met’s internal rule since a darkened auditorium is unsafe for an elderly patron with troubled ambulation (but see Longacre v Yonkers R.R. Co., supra at 125 [stating that where internal rules transcend reasonable care and the rule had no reference to the prevention of an accident as occurred, breach cannot be considered evidence of negligence]).

The majority grounds its opinion in the belief that the duty to keep the premises safe does not extend to plaintiff Gilson or Mr. Taitt. The defendant had a duty to protect its patrons from harm caused by conditions on its premises. As the dissenting Justices below stated, these facts include whether the ushers should have let Mr. Taitt return to his seat, whether the stairs were lit to a level that fell short of industry standards, whether this created a dangerous condition for other patrons, whether the ushers saw Mr. Taitt walking in an unstable fashion, whether an usher should have accompanied Mr. Taitt, and whether Mrs. Gilson’s injury was a foreseeable consequence of the Met’s alleged breach of reasonable care. The expert affidavit offered by appellant stated:

“The light in the aisle measured below two foot candles which is insufficient lighting and in violation of the New York City Building Code section 27-381.a, (c), (e) (1). . . .
“It is my opinion with a reasonable degree of engineering certainty that the Metropolitan Opera house creates a dangerous and unsafe condition for pedestrians on the aisles of the Dress Circle Section when the house lights are down.”

The Met disputes the relevance of plaintiffs’ expert’s affidavit, as the area tested was not the same aisle Mrs. Gilson fell in on the night in question. Defendant also questions the relevance of the expert’s findings since there is no evidence that the lighting on the night he tested was the same as the night of the accident. The expert affidavit is enough, however, to establish a question of fact of whether the Met exercised reasonable care.

Similar to the dissenting Justices below, I do not rely only on the Met’s internal guidelines or the alleged New York City Building Code violations. As patrons, both appellant and Mr. Taitt were owed a duty of maintained safe premises. Employees of the Met made a discrete decision to let Mr. Taitt into the performance once intermission had ended. Therefore, under the totality of circumstances, the question of whether they acted reasonably should be left to the jury.

For the foregoing reasons, I dissent.

Chief Judge Kaye and Judges Rosenblatt, Graffeo, Read and R.S. Smith concur with Judge Ciparick; Judge G.B. Smith dissents and votes to reverse in a separate opinion.

Order affirmed, with costs.

       The complaint also named Lincoln Center for the Performing Arts and Donald Taitt as defendants. Supreme Court dismissed the action against Lincoln Center; defendant Taitt did not appear.

       The Performance Staff Rules and Guidelines state:
      “For reasons of safety and because no one is seated once the performance begins, every effort should be made to see that ticket holders do not cluster inside the entrance to the Auditorium prior to or during the performance. All ticket holders should be seated quietly and efficiently, especially when the house lights are down or during a late seating ....
      “NO ONE SHOULD BE ADMITTED OR READMITTED TO THE AUDITORIUM WHILE THE PERFORMANCE IS IN PROGRESS EXCEPT WITH DIRECT AUTHORIZATION FROM THE PERFORMANCE MANAGER. . . .
      “Ticket holders should be escorted to their seats with the aid of flashlights when the House lights are low, and particularly requested to watch their step.”


source: Caselaw Access Project

author:
ClPARICK, J.
      R.S. Smith, J.

license: Public Domain

text:
    [842 NE2d 471, 808 NYS2d 573]
    AG Capital Funding Partners, L.P., et al., Plaintiffs, v State Street Bank and Trust Company, Defendant and Third-Party Plaintiff-Appellant. Salomon Smith Barney Inc. et al., Third-Party Defendants-Respondents.
    Argued October 18, 2005;
    decided November 17, 2005

      POINTS OF COUNSEL

      Kelley Drye & Warren LLP, New York City (Steven P Caley, John M. Callagy and Robert S. Friedman of counsel), for third-party defendant-appellant.
    I. The First Department order should be reversed because it is in conflict with long-standing New York law and the provisions of the federal Trust Indenture Act, which strictly limit the predefault duties of an indenture trustee. (Apfel v Prudential-Bache Sec., 81 NY2d 470; Curtis Props. Corp. v Greif Cos., 212 AD2d 259; Hazzard v Chase Natl. Bank of City of N.Y., 159 Misc 57, 257 App Div 950, 282 NY 652; Elliott Assoc. v J. Henry Schroder Bank & Trust Co., 838 F2d 66; Meckel v Continental Resources Co., 758 F2d 811; LNC Invs., Inc. v First Fid. Bank, N.A., 935 F Supp 1333; New York State Med. Care Facilities Fin. Agency v Bank of Tokyo Trust Co., 163 Misc 2d 551, 216 AD2d 126.) II. The First Department committed legal error in holding that the term “delivering” as used in the additional secured indebtedness registration statement was unambiguous. (67 Wall St. Co. v Franklin Natl. Bank, 37 NY2d 245; Haber v St. Paul Guardian Ins. Co., 137 F3d 691; Pikul v Clough, Harbour & Assoc., 190 AD2d 932; Matter of Aerotech

      World Trade v Excalibur Sys., 236 AD2d 609; Federated Mut. Ins. Co. v Woodstock ’99, LLC, 140 F Supp 2d 225; Thomas v Scutt, 127 NY 133; Zurakov v Register.Com, Inc., 304 AD2d 176.) III. The First Department order, affirming dismissal of State Street Bank and Trust Company’s attorney malpractice and negligent misrepresentation claims, affirmed an erroneous legal standard and directly conflicts with decisions of this Court. (Rovello v Klein, 304 AD2d 638; Hudson Riv. Club v Consolidated Edison Co. of N.Y., 275 AD2d 218; Prudential Ins. Co. of Am. v Dewey, Ballantine, Bushby, Palmer & Wood, 80 NY2d 377; Vereins-Und Westbank, AG v Carter, 691 F Supp 704.) IV The First Department’s dismissal of State Street Bank and Trust Company’s negligence and contribution claims was in error because State Street’s amended third-party complaint adequately pleaded that third-party defendants assumed a duty to deliver any additional secured indebtedness registration statement to Bankers Trust Company. (Heard v City of New York, 82 NY2d 66; Nallan v Helmsley-Spear, Inc., 50 NY2d 507; Nolton v Western R.R. Corp., 15 NY 444; Bartels v County of Westchester, 76 AD2d 517; Rockwell v State of New York, 32 Misc 2d 167, 19 AD2d 946.) V The First Department erroneously dismissed State Street Bank and Trust Company’s contribution causes of action. (Sommer v Federal Signal Corp., 79 NY2d 540; Comi v Breslin & Breslin, 257 AD2d 754; Regan v Eight Twenty Fifth Corp., 287 NY 179; Schauer v Joyce, 54 NY2d 1; Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559; Garrett v Holiday Inns, 58 NY2d 253; Trustees of Columbia Univ. v Mitchell/Giurgola Assoc., 109 AD2d 449.)

      Cleary Gottlieb Steen & Hamilton LLP, New York City (Mitchell A. Lowenthal, David H. Herrington, Karen Bekker and David Lehn of counsel), for Salomon Smith Barney Inc., third-party defendant-respondent.
    I. State Street Bank and Trust Company undertook a contractual duty to deliver the additional secured indebtedness registration statement to Bankers Trust Company. (Nau v Vulcan Rail & Constr. Co., 286 NY 188; This Is Me, Inc. v Taylor, 157 F3d 139; Kurz v United States, 156 F Supp 99, 254 F2d 811; Ortelere v Teachers’ Retirement Bd. of City of N.Y., 25 NY2d 196; Rudman v Cowles Communications, 30 NY2d 1; Apfel v Prudential-Bache Sec., 81 NY2d 470; Weiner v McGraw-Hill, Inc., 57 NY2d 458; New York State Med. Care Facilities Fin. Agency v Bank of Tokyo Trust Co., 163 Misc 2d 551, 216 AD2d 126; W.W.W. Assoc. v Giancontieri, 77 NY2d 157; R/S Assoc. v New York Job Dev. Auth., 98 NY2d 29.) II. Salomon Smith Barney Inc. had no duty to deliver the additional secured indebtedness registration statement. (Lauer v City of New York, 95 NY2d 95; Espinal v Melville Snow Contrs., 98 NY2d 136; Peters v Veemac El. Co., 182 AD2d 534; 532 Madison Ave. Gourmet Foods v Finlandia Ctr., 96 NY2d 280; A.H.A. Gen. Constr. v New York City Hous. Auth., 92 NY2d 20; Board of Educ. of Hudson City School Dist. v Sargent, Webster, Crenshaw & Folley, 71 NY2d 21; Hamilton v Beretta U.S.A. Corp., 96 NY2d 222; Pulka v Edelman, 40 NY2d 781; Nallan v Helmsley-Spear, Inc., 50 NY2d 507; Heard v City of New York, 82 NY2d 66.)

      Allen & Overy LLP, New York City (Michael S. Feldberg, Jacob S. Pultman, Kelly A. Berkell, Karen Lee and Nicole K. Avallone of counsel), for Thelen Reid & Priest LLf? third-party defendant-respondent.
    I. Thelen Reid & Priest LLP owes no legal duty to State Street Bank and Trust Company, and dismissal of State Street’s claims for negligence, negligent misrepresentation and attorney malpractice was therefore proper. (Prudential Ins. Co. of Am. v Dewey, Ballantine, Bushby, Palmer & Wood, 80 NY2d 377; LNC Invs., Inc. v First Fid. Bank, N.A., 935 F Supp 1333; Alpert v Shea Gould Climenko & Casey, 160 AD2d 67; National Westminster Bank v Weksel, 124 AD2d 144; Lucas v Lalime, 998 F Supp 263; Harz v United States, 711 F Supp 114; King v Schonberg & Co., 233 AD2d 242; Weiss v Manfredi, 83 NY2d 974; Rovello v Klein, 304 AD2d 638; Hudson Riv. Club v Consolidated Edison Co. of N.Y., 275 AD2d 218.) II. As indenture trustee, State Street Bank and Trust Company was obligated to deliver the additional secured indebtedness registration statement. (New York State Med. Care Facilities Fin. Agency v Bank of Tokyo Trust Co., 163 Misc 2d 551, 216 AD2d 126; Beck v Manufacturers Hanover Trust Co., 218 AD2d 1; Semi-Tech Litig., LLC v Bankers Trust Co., 353 F Supp 2d 460; LNC Invs., Inc. v First Fid. Bank, N.A., 935 F Supp 1333; Hazzard v Chase Natl. Bank of City of N.Y., 159 Misc 57, 258 AD2d 950, 282 NY 652; Elliott Assoc. v J. Henry Schroder Bank & Trust Co., 838 F2d 66; Meckel v Continental Resources Co., 758 F2d 811; United States Trust Co. of N.Y. v First Natl. City Bank, 57 AD2d 285.) III. Dismissal of State Street Bank and Trust Company’s contribution claim was proper because Thelen Reid & Priest LLP did not owe any legal duty to plaintiffs or to State Street. (LNC Invs., Inc. v First Fid. Bank, N.A., 935 F Supp 1333; Aglira v Julien & Schlesinger, 214 AD2d 178; Board of Educ. of Hudson City School Dist. v Sargent, Webster, Crenshaw & Folley, 71 NY2d 21; Dormitory Auth. of State of N.Y. v Caudill Rowlett Scott, 160 AD2d 179.)

      Covington & Burling, New York City (C. William Phillips,

      Jonathan M. Sperling and Stephanie Yu of counsel), for UBS Warburg LLC, third-party defendant-respondent.
    I. State Street Bank and Trust Company’s allegations of industry custom cannot create a duty of care. (Heard v City of New York, 82 NY2d 66; M & E Mfg. Co. v Frank H. Reis, Inc., 258 AD2d 9; De Kwiatkowski v Bear, Stearns & Co., Inc., 306 F3d 1293; Florida Fuels, Inc. v Citgo Petroleum Corp., 6 F3d 330; Klimstra v State Farm Auto Ins. Co., 891 F Supp 1329; Polka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579; Eiseman v State of New York, 70 NY2d 175; Phillips v McClellan St. Assoc., 262 AD2d 748; O’Connor v 595 Realty Assoc., 23 AD2d 69; Trimarco v Klein, 56 NY2d 98.) II. State Street Bank and Trust Company does not state a cause of action against UBS Warburg LLC based on the alleged statements of UBS’s counsel. (Heard v City of New York, 82 NY2d 66; Roland Pietropaoli Trucking v Nationwide Mut. Ins. Co., 100 AD2d 680; Kimmell v Schaefer, 89 NY2d 257; WIT Holding Corp. v Klein, 282 AD2d 527; United Safety of Am. v Consolidated Edison Co. of N.Y., 213 AD2d 283; Williams v State of New York, 90 AD2d 861; Eternity Global Master Fund v Morgan Guar. Trust Co., 375 F3d 168; Zelber v Lewoc, 6 AD3d 1043; Tradewinds Fin. Corp. v Refco Sec., 5 AD3d 229; Adams v Clark, 239 NY 403.) III. State Street Bank and Trust Company contractually undertook to deliver the additional secured indebtedness registration statement to the collateral trustee. (W.W.W. Assoc. v Giancontieri, 77 NY2d 157; Michael J. Torpey, Inc. v Consolidated Edison Co. of N.Y., 99 AD2d 484; Chimart Assoc. v Paul, 66 NY2d 570; Uribe v Merchants Bank of N.Y., 91 NY2d 336; Merrill Lynch, Pierce, Fenner & Smith v Adler, 234 AD2d 139; Two Guys from Harrison-N.Y. v S.F.R. Realty Assoc., 63 NY2d 396; Hallmark Synthetics Corp. v Sumitomo Shoji N.Y., 26 AD2d 481; Sbarra v Totolis, 191 AD2d 867; Weiner v McGraw-Hill, Inc., 57 NY2d 458; Apfel v Prudential-Bache Sec., 81 NY2d 470.)

      Kasowitz, Benson, Torres & Friedman LLP, New York City {James J. Strieker, Ronald R. Rossi and Matthew R. DiBlasi of counsel), for plaintiffs.
    I. The question presented by State Street Bank and Trust Company has no bearing on whether State Street has properly stated a claim against the third-party defendants. (Lunney v Prodigy Servs. Co., 94 NY2d 242; Cuomo v Long Is. Light. Co., 71 NY2d 349; Society of Plastics Indus. v County of Suffolk, 77 NY2d 761.) II. Even assuming arguendo that the Court considers State Street Bank and Trust Company’s first question, there is no legal or factual basis for any holding by this Court that, as a matter of law, State Street was not obligated to deliver the additional secured indebtedness registration statement to the collateral trustee. (Beck v Manufacturers Hanover Trust Co., 218 AD2d 1; LNC Invs. v First Fid. Bank, 935 F Supp 1333; Semi-Tech Litig., LLC v Bankers Trust Co., 353 F Supp 2d 460; New York State Med. Care Facilities Fin. Agency v Bank of Tokyo Trust Co., 216 AD2d 126; Hazzard v Chase Natl. Bank of N.Y., 159 Misc 57; Meckel v Continental Resources Co., 758 F2d 811; Elliott Assoc. v J. Henry Schroder Bank & Trust Co., 838 F2d 66; New York Civ. Liberties Union v State of New York, 4 NY3d 175; Tango v Tulevech, 61 NY2d 34; In re Nucorp Energy Sec. Litig., 772 F2d 1486.) III. State Street Bank and Trust Company’s unsubstantiated speculation that the First Department’s holding will likely lead to disruption and uncertainty in the market for issuance of debt securities is unfounded and without merit. (Hines v Davidowitz, 312 US 52; New York State Med. Care Facilities Fin. Agency v Bank of Tokyo Trust Co., 163 Misc 2d 551; LNC Invs., Inc. v First Fid. Bank, N.A., 935 F Supp 1333; Williams v Continental Stock Transfer & Trust Co., 1 F Supp 2d 836; Semi-Tech Litig., LLC v Bankers Trust Co., 353 F Supp 2d 460.)
   OPINION OF THE COURT

ClPARICK, J.

Because an underwriter or issuer of securities can, by statements and acts interpreted in light of industry custom and practice, assume a duty that may be imposed upon a secured party representative or indenture trustee, and because such allegations are adequately pleaded in a third-party complaint and supplemental documentary evidence, we reinstate causes of action for negligence and contribution brought by the secured party representative/indenture trustee against the underwriters and the issuer’s counsel.

Loewen Group International, Inc. and Loewen Group, Inc. (collectively Loewen), owner and operator of cemeteries and funeral homes throughout the United States, United Kingdom and Canada, issued notes and other debt securities to raise capital in several transactions in the late 1990s. All of the debt securities were to be supported by a single pool of collateral. The transactions at issue in this case involved securities known as pass-through asset trust securities (PATS) and Series 6 and 7 Notes, but the earlier transactions are relevant as background.

The first of the debt securities, consisting of Series 1 and 2 Notes, were already in existence prior to a May 1996 Collateral Trust Agreement (CTA). The CTA, entered into between Loewen Group and Bankers Trust Company (Bankers Trust), established the pool of assets intended to secure the debt offerings, and provided that Bankers Trust would serve as collateral trustee of the pool. The agreement explicitly secured the Series 1 and 2 Notes, and provided a mechanism for holders of future debt offerings to acquire secured-creditor status. The CTA provides for the delivery by such holders, or their representative—called a secured party representative—of a document called an additional secured indebtedness registration statement (ASIRS) to Bankers Trust. The ASIRS was to be signed by Loewen and the holder or secured party representative. The CTA provided: “To become a Secured Party Representative hereunder each such representative or Holder must deliver to the Trustee, for acceptance and registration in the Secured Indebtedness Register, an Additional Secured Indebtedness Registration Statement. . . .”

The Series 3 and 4 Notes were the first debt issued by Loewen after the effective date of the CTA. Salomon Smith Barney (Salomon) served as lead underwriter and was represented by Davis Polk & Wardwell (Davis Polk) at the closing. Thelen Reid & Priest LLP (Thelen) served as counsel for Loewen, the issuer. A copy of the executed ASIRS for this transaction was faxed to Bankers Trust, the collateral trustee, by Thelen on October 4, 1996. A predecessor in interest of third-party plaintiff, State Street Bank and Trust Company (State Street), was the indenture trustee under the indenture and the secured party representative as defined in the CTA.

The Series 5 Notes were issued on September 26, 1997. These notes were also secured by the CTA. An executed copy of the ASIRS was delivered by Loewen’s Canadian counsel, Russell & DuMoulin, to Bankers Trust at the close of that transaction. State Street was not involved in the Series 5 Notes transaction.

The problem with the transactions involved in this case—the PATS, Series 6 Notes and Series 7 Notes—is that, in each of them, the ASIRS did not find its way to Bankers Trust.

PATS in the amount of $300,000,000 were issued on September 30, 1997. UBS Warburg (UBS) was the lead underwriter in that transaction, represented by Skadden, Arps, Slate, Meagher & Flom LLP (Skadden), who hosted the closing. State Street again served as the indenture trustee and thus was the secured party representative, as defined in the CTA and ASIRS. Thelen, counsel for the issuer, drafted the ASIRS, which was then signed by Loewen and State Street and left at Skadden’s office at the closing along with the other closing documents. An attorney from Skadden, UBS’s counsel, later said that a Skadden associate had delivered the ASIRS to Bankers Trust, but he thereafter retracted the statement. No record exists of the ASIRS having been delivered to Bankers Trust for the PATS transaction.

The Series 6 and 7 Notes involved essentially the same parties and procedures as the Series 3 and 4 Notes. Salomon served as the lead underwriter on this $450,000,000 transaction, again represented by Davis Polk. Loewen was again represented by Thelen, and State Street again accepted the role of indenture trustee pursuant to the May 28, 1998 indenture and secured party representative under the CTA. The closing took place on May 28, 1998 but Davis Polk, the closing host, failed to place the ASIRS on the closing checklist. Thelen, realizing this omission post-closing, circulated a copy of the ASIRS for signature. Loewen and State Street both signed the document and returned it to Thelen. Thelen then faxed a copy of the executed ASIRS signature page to Davis Polk on June 1, 1998. State Street did not receive a copy of the fully executed ASIRS. Bankers Trust has no record of receiving or recording the ASIRS for the Series 6 and 7 Notes transaction.

In June 1999, Loewen, represented by Jones, Day Reavis & Pogue (Jones Day), filed for chapter 11 bankruptcy. Because no ASIRS had been filed for the PATS and the Series 6 and 7 Notes, there was doubt as to whether the investors and holders of those instruments had the secured-creditor status they had expected. In the reorganization proceeding, investors settled their claims against Loewen by accepting a discounted value for the notes. The investors then commenced this lawsuit against State Street, claiming that State Street’s failure to deliver the ASIRS caused the investors to settle for “tens of millions of dollars” less than they would otherwise have received. The investors’ action against State Street is still pending and is not directly an issue on this appeal, which only concerns State Street’s third-party complaint against UBS, Salomon and Thelen.

In its third-party complaint, State Street asserts that in the event that it is found liable to the investors in the underlying proceeding, it may recover from the underwriters UBS and Salomon under four causes of action: negligence, common-law indemnity, contribution and unjust enrichment. State Street asserted the same four causes of action against Thelen, the issuer’s counsel, but added as well claims for negligent misrepresentation and attorney malpractice. Each third-party defendant sought dismissal pursuant to CPLR 3211 (a) (1) and (7). Supreme Court granted the motions in part, dismissing all causes of action except for the contribution and negligence claims against all three third-party defendants.

Third-party defendants appealed. State Street also cross-appealed the dismissal of its attorney malpractice and negligent misrepresentation claims. The Appellate Division modified Supreme Court by dismissing the remaining causes of action (10 AD3d 293 [2004]). We granted leave to appeal and now modify and reinstate the contribution and negligence claims against UBS, Salomon and Thelen.

In deciding this appeal, we express no opinion on the merits of the underlying claims against State Street. We assume for purposes of this appeal that the claims are meritorious and consider whether, on that assumption, State Street has pleaded valid third-party claims.

To the extent that the Appellate Division held that the documentary evidence precluded State Street from prevailing on its contribution and negligence claims, the Court erred. In order to prevail on a CPLR 3211 (a) (1) motion, the moving party must show that the documentary evidence conclusively refutes plaintiffs (here third-party plaintiffs) allegations (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]). Assuming that the controlling documents in this case place the duty to file the ASIRS on State Street, these documents—the CTÁ, ASIRS and indentures—do not definitively refute State Street’s allegations that the duty thereafter was assumed by the third-party defendants.

The Appellate Division also erred to the extent that it dismissed State Street’s claims for contribution and negligence under CPLR 3211 (a) (7). When assessing the adequacy of a complaint in light of a CPLR 3211 (a) (7) motion to dismiss, the court must afford the pleadings a liberal construction, accept the allegations of the complaint as true and provide plaintiff (here third-party plaintiff) “the benefit of every possible favorable inference” (Leon v Martinez, 84 NY2d 83, 87 [1994]; see also Goshen, 98 NY2d at 326). “Whether a [third-party] plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss” (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]). Further, any deficiencies in the complaint may be amplified by supplemental pleadings and other evidence (see Rovello v Orofino Realty Co., 40 NY2d 633, 635-636 [1976]). In this instance, for the purposes of assessing the third-party complaint, we are assuming that State Street had a duty to deliver the ASIRS, and need only address the allegations in the complaint that any such duty was assumed by UBS, Salomon and Thelen.

The amended third-party complaint alleges that UBS, by undertaking the role of underwriter for the PATS, and by its counsel agreeing to deliver the ASIRS to Bankers Trust, assumed a duty to “exercise reasonable care in running the closing and to ensure the PATS ASIRS was filed, delivered and/or registered with Banker’s Trust.” In support of this allegation, State Street proffers an affidavit from William Barrett stating that based on his 40 years of experience in the field of corporate trusts and the over 300 closings involving indenture trusts that he attended he could not recall the indenture trustee ever making any filings. Instead he stated the “custom and practice within the corporate trust industry [is] that the issuer of the debt or its counsel and/or the underwriter or its counsel, file documents to record the security for debt collateral in connection with bond issuances.” He also opined that the word “deliver” in the context of a closing means to leave executed documents at the closing table. State Street further points to a deposition taken as part of the Loewen bankruptcy proceeding of Thelen attorney Michelle Johnson. Ms. Johnson attested that the industry custom is that parties deliver documents to the closing table and the lawyer who is hosting the closing distributes the documents appropriately.

State Street also proffers evidence that a Skadden attorney claimed to have delivered the ASIRS in the PATS transaction. In particular, State Street offers a transcript of a voicemail in which a Skadden attorney discusses in vivid detail how a Skadden associate clearly remembered that he physically delivered the ASIRS to Bankers Trust. The text of the message is further corroborated by notes taken by Loewen’s bankruptcy counsel, Jones Day, from its interviews of Skadden attorneys who took part in the transaction. While Skadden’s claim that the ASIRS was actually delivered has since been retracted, the documentary evidence of Skadden’s admissions is offered by State Street to supplement the allegation of the third-party complaint that UBS, through its counsel, assumed a duty to file the ASIRS.

Likewise, the third-party complaint as against Salomon alleges that Salomon, as lead underwriter of the Series 6 and 7 Notes debt offering, undertook through its counsel’s actions the duty to deliver the ASIRS. In addition to allegations of industry custom of placing the duty to distribute documents properly with the host of the closing, the third-party complaint supplemented by documentary evidence alleges Salomon’s counsel’s failure to include the ASIRS on the closing checklist. When the error was discovered, Thelen immediately drafted an ASIRS and sent it by fax to the parties for signature. According to the Johnson deposition, after receiving the executed copies, Thelen sent a copy to Davis Polk, counsel for Salomon, with the “expectation that [it] would have been delivered appropriately.” An investigation by Jones Day in the bankruptcy proceeding further verified this version of events as set forth in the Jones Day memorandum that was proffered by State Street in opposition to this motion to dismiss; the Jones Day memorandum reports that the Thelen attorney who drafted the ASIRS sent it to Davis Polk with the “expectation that Davis Polk would submit the document to the Collateral Trustee.”

State Street further claims not only that custom and prior practice between the parties placed a duty to deliver the ASIRS on the underwriter, but also that it placed the duty on Thelen, counsel for the issuer. The allegation against Thelen is that it breached its duty of care by failing to register or assure that the ASIRS for the PATS and Series 6 and 7 transactions were duly registered. Third-party plaintiff supports this claim by documents indicating that Loewen’s counsel—Thelen in the Series 3 and 4 transaction, and Russell & DuMoulin in the Series 5 transaction—recorded the ASIRS with Bankers Trust following the close of these transactions. Further, Ms. Johnson testified in her deposition that the Series 6 and 7 transaction had a “cookie cutter” resemblance to the Series 3 and 4 transaction in form and structure. In addition, State Street alleges that it never even received an executed copy of the ASIRS in the Series 6 and 7 transaction, just a blank copy that it was instructed to sign and return to Thelen. It alleges that Thelen made repeated representations that the debt was fully secured and ranked equally with the other Loewen secured debt, pointing to the April 16, 1999 letter from Michelle Johnson, where she states that “the Series 1 through 4 and 6 and 7 senior notes issued by Loewen Group International, Inc. are secured indebtedness under the Collateral Trust Agreement.” All the notes, she continues, are “Class C Secured Indebtedness.”

State Street argues that the aforementioned actions in conjunction with industry custom and practice demonstrate how any duty it may have owed to the investors or subsequent holders of the notes was assumed by UBS, Salomon and Thelen. Third-party defendants argue that they never assumed such a duty, nor may custom be used to impose such an obligation. They further state that the Court is precluded from finding a prevailing custom because the custom as alleged is not specific enough to place them on notice. This appeal concerns a motion addressed to the pleadings, prior to discovery; it would therefore be premature to dispense with liability against any of these parties at this time as a nexus of control and obligation to the documents at issue has been adequately set forth in the pleadings. At this point, the Court can only address whether a cause of action exists, not whether it is likely to succeed (see EBC I, Inc., 5 NY3d at 19).

We agree with State Street that its allegations of industry practice give support to its claim (see e.g. Phillips v McClellan St. Assoc., 262 AD2d 748, 749 [3d Dept 1999] [stating that “evidence of industry practice and standards is admissible to establish a duty of care”]). Further, a course of conduct that induces reliance, as alleged here, may implicate a duty of care (see e.g. Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 522-523 [1980]). The industry custom as set forth in the supplemental evidentiary materials, coupled with the parties’ conduct, supports a claim that the third-party defendants together or in part assumed that duty. The pleadings allege that the third-party defendants did not act reasonably in relation to such duty.

Accepting the allegations in the third-party complaint as true, as we must at this preliminary pleading stage, as supplemented by the additional evidence submitted, we conclude that if State Street is found to have breached a duty and is held liable in the underlying action for failure to deliver the ASIRS to Bankers Trust then each of the third-party defendants may be liable as well. The third-party complaint has sufficiently pleaded a cause of action for negligence as it is alleged that all three third-party defendants assumed the duty that State Street may have had to act in relation to the delivery and filing of the ASIRS. Contrary to the dissenting view, we see no basis for treating Thelen differently at this point, as the submissions more than adequately support a cause of action against Thelen for negligence.

We turn next to State Street’s cause of action seeking contribution. A claim for contribution rises and falls based on the existence of separate tortfeasors (see CPLR 1401, 1403; see also Sommer v Federal Signal Corp., 79 NY2d 540, 557 [1992]). As State Street has sufficiently pleaded a claim of negligence against UBS, Salomon and Thelen, the claim of contribution against those parties also survives the motion to dismiss and may be predicated on a breach of duty to plaintiff or defendant and third-party plaintiff.

As to the allegations against Thelen for attorney malpractice and negligent misrepresentation we agree with the Supreme Court and Appellate Division in their conclusion that no cause of action lies. In assessing the adequacy of a claim of negligent misrepresentation or attorney malpractice, a court must first look to the relationship of the parties. Where the relationship of the parties fails to reveal actual privity or a relationship that otherwise closely resembles privity, no cause of action exists for negligent misrepresentation (see Ossining Union Free School Dist. v Anderson LaRocca Anderson, 73 NY2d 417, 424 [1989]). In terms of attorney malpractice, absent privity, plaintiff must set forth a claim of “fraud, collusion, malicious acts or other special circumstances” in order to maintain a cause of action (Estate of Spivey v Pulley, 138 AD2d 563, 564 [2d Dept 1988]; see also Good Old Days Tavern v Zwirn, 259 AD2d 300 [1st Dept 1999]; Mills v Dulin, 192 AD2d 1001, 1003 [3d Dept 1993]; Bluntt v O’Connor, 291 AD2d 106, 114 [4th Dept 2002]).

Clearly there was no actual privity between Thelen and State Street. Thelen served as counsel for Loewen, who was not by any means unified in interest with State Street, the latter being the agent of the holders. Nor could it be said that the relationship closely resembled privity. As such, no claim for negligent misrepresentation lies. The claim for attorney malpractice also fails as State Street does not set forth a claim for fraud or collusion or any of the other exceptions to the privity rule. This was a rather complex transaction involving sophisticated parties and their counsel. Any misrepresentations or misunderstandings as pleaded do not give rise to a claim of attorney malpractice or negligent misrepresentation absent a showing of a privity-like relationship.

In conclusion, at this early stage of the action, the third-party complaint must be allowed to proceed as third-party plaintiff, State Street, has adequately pleaded causes of action in negligence and contribution against the underwriters and counsel for the issuer for failure to deliver the ASIRS as required to Bankers Trust, the collateral trustee, in the PATS and Series 6 and 7 Notes transactions.

Accordingly, the order of the Appellate Division should be modified, without costs, by reinstating the negligence and contribution causes of action in the third-party complaint against all third-party defendants, and as so modified, affirmed.

R.S. Smith, J.

(dissenting in part). I agree with the majority opinion, in result and reasoning, except that I would dismiss the third-party complaint against Thelen, because I think the third-party complaint (as supplemented by documentary evidence) does not adequately allege that Thelen was at fault for the nondelivery of the ASIRS.

As the majority explains, we assume in this case (without deciding) that State Street had a duty to plaintiffs to make sure the ASIRS was delivered to Bankers Trust. The sufficiency of the third-party complaint turns on whether State Street has adequately alleged that the underwriters (UBS and Salomon) and the issuer’s counsel, Thelen, undertook by their actions or words to perform this duty on State Street’s behalf. To me, the record shows that if anyone made such an undertaking it was the underwriters, not Thelen.

An expert affidavit submitted by State Street says that, according to the custom of the corporate trust industry, documents like the ASIRS are filed by “the issuer of the debt or its counsel and/or the underwriter or its counsel.” The affidavit thus provides no basis for saying whether it was Thelen or the underwriters who undertook the duty in these transactions. One indication that it was the underwriters is the simple fact that, in each of the transactions, the ASIRS wound up in the underwriter’s counsel’s possession. In the PATS transaction, the ASIRS was left with other closing documents at the underwriter’s counsel’s office. In the Series 6 and 7 Notes transaction, the ASIRS was prepared and signed after the closing, and then faxed by Thelen to the underwriter’s counsel.

I agree with the majority that, from these facts, it is possible to infer that all parties, including State Street, were relying on the underwriters to deliver the ASIRS to its proper destination. But these facts cannot support an inference that anyone was relying on Thelen to perform that task. Nor do the later statements by counsel for the underwriter in the PATS transaction, in which counsel seemed to assume that delivery of the ASIRS was something the underwriter’s counsel should have taken care of, support an allegation that the delivery was Thelen’s responsibility.

The only facts the majority refers to in support of its holding that the claim against Thelen may be maintained are: (1) that the issuer’s counsel delivered the ASIRS to the collateral trustee in two prior, similar transactions; and (2) that Thelen signed letters saying that the Series 6 and 7 Notes were properly secured. The first of these facts is, in my view, simply too flimsy to support an inference that Thelen undertook the duty to deliver the ASIRS in later transactions; one is not committed to do something forever, simply because one has done it twice. And Thelen’s statements that the debt was secured, even assuming they were wrong, seem to me logically unconnected with the question of who was supposed to deliver the ASIRS.

Accordingly, I would affirm the Appellate Division’s order to the extent that it dismissed the third-party complaint against Thelen.

Chief Judge Kaye and Judges Rosenblatt, Graffeo and Read concur with Judge Ciparick; Judge R.S. Smith dissents in part in a separate opinion in which Judge G.B. Smith concurs.

Order modified, etc.

      . The PATS ASIRS dated September 30, 1997 in relevant part states:
      “By executing and delivering this Additional Secured Indebtedness Registration Statement and, upon the acceptance and recordation hereof by the Trustee in accordance with . . . the Collateral Trust Agreement, State Street ... as trustee under the indenture dated as of September 30, 1997 . . . hereby agrees on behalf of itself and the Holders it represents to be bound by all the terms and provisions of the [CTA] applicable to a Holder and a Secured Party Representative . . . .”

      . The language of the ASIRS associated with the Series 6 and 7 Notes is essentially the same as the language used for the PATS transaction.

      . In dismissing the remaining causes of action the Appellate Division held that “State Street assumed the contractual obligation to deliver to Bankers Trust a registration statement for any additional secured indebtness” (10 AD3d at 294). This determination was premature and beyond the scope of the appeal, and may have had the unfortunate consequence of seeming to dictate the outcome of the underlying proceeding. The issue before this Court, as was the issue before the Appellate Division, is whether—assuming State Street had a duty to deliver the ASIRS—State Street has adequately pleaded that the underwriters or issuer’s counsel assumed that duty.

      . The complaint further alleges that “UBS and Thelen breached their duty of care owed to State Street by, inter alia, failing to file, deliver, and/or register the PATS ASIRS with Banker’s Trust” and further by failing to remedy the situation.

      . The complaint alleges under the third cause of action, among other claims, that Salomon,
      “by agreeing to act as underwriter for the Series 6 and 7 Notes, owed a duty to all parties to the Series 6 and 7 Notes closing, including State Street, to exercise reasonable care in running the closing and to ensure that the ASIRS for the Series 6 and 7 Notes was filed, delivered and/or registered with Banker’s Trust.”
      It further states that:
      “Salomon breached its duty of care owed to State Street by, inter alia, failing to put or have its agents/attorneys put the Series 6 and 7 Notes ASIRS on the Series 6 and 7 Notes closing checklist and thus, failing to have the ASIRS drafted and ready for execution at the closing, and failing to file, deliver and/or register the Series 6 and 7 Notes ASIRS with Banker’s Trust.”


text:
    [833 NE2d 192, 800 NYS2d 49]
    The People of the State of New York, Appellant, v Jerry W. Moore, Respondent.
    Argued April 14, 2005;
    decided June 7, 2005
    APPEARANCES OF COUNSEL

      Frank J. Clark, District Attorney, Buffalo (J. Michael Marion of counsel), for appellant.

      Mary P. Walek, Buffalo, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the County Court should be affirmed.

As relevant here, defendant was charged with criminal trespass in the third degree (see Penal Law § 140.10 [a]). According to the information, defendant entered a public building located on the campus of the State University of New York at Buffalo on September 4, 2002. This conduct allegedly violated a “persona non grata” letter, issued on June 11, 1999 and again on November 28, 2000 by school officials, barring defendant from the campus. The supporting deposition describes a verbal exchange with a university employee. City Court granted defendant’s motion to dismiss the information as jurisdiction-ally defective because it did not set forth every element of criminal trespass in the third degree, and County Court affirmed. A Judge of this Court granted leave to appeal and we now affirm.

The Penal Law provides that “[a] person is guilty of criminal trespass in the third degree when he knowingly enters or remains unlawfully in a building or upon real property (a) which is fenced or otherwise enclosed in a manner designed to exclude intruders” (Penal Law § 140.10 [a]). Although previous versions of the statute contained nearly identical language, the “fenced or otherwise enclosed” requirement was not contained in a separate subdivision until the statute was amended in 1987 (L 1987, ch 192). Prior to the amendment, the statute had apparently been interpreted so that knowingly entering or remaining unlawfully in any building—fenced or unfenced—constituted criminal trespass in the third degree, as did knowingly entering or remaining unlawfully upon real property which was fenced or otherwise enclosed in a manner to exclude intruders. Under the prior statute, “the building was not required to be fenced or otherwise enclosed” (Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law art 140, at 13). The plain language of the statute as amended, however, clearly requires that both buildings and real property be fenced or otherwise enclosed in order to increase the level of culpability from trespass (see Penal Law § 140.05) to criminal trespass in the third degree. The 1987 amendment thus narrowed the definition of criminal trespass in the third degree to require one of several enumerated conditions to be present.

This reading is consistent with the general scheme of article 140 of the Penal Law. Starting with the violation of trespass (see Penal Law § 140.05), the crimes become progressively more serious as they approach criminal trespass in the first degree (see Penal Law § 140.17). Since the violation of trespass requires only that a person “knowingly enters or remains unlawfully in or upon premises” (Penal Law § 140.05), which includes buildings (see Penal Law § 140.00 [1]), section 140.10 (a) is properly interpreted as requiring the additional aggravating element that the building or area entered be fenced or otherwise enclosed in order to exclude intruders to elevate the crime from a violation to a class B misdemeanor.

The remaining subdivisions of section 140.10 also support this interpretation of the statute. If knowingly entering or remaining unlawfully in any building were sufficient to establish third-degree criminal trespass, it would be unnecessary to include the further enumerated aggravating elements for trespass in particular buildings, such as elementary and secondary schools or public housing projects (see Penal Law § 140.10 [b]-[f]), and both trespass and third-degree criminal trespass would be committed by the identical conduct of knowingly entering or remaining unlawfully in an unfenced or unenclosed building.

“[A]n information which fails to contain nonhearsay allegations establishing ‘if true, every element of the offense charged and the defendant’s commission thereof ... is fatally defective” (People v Alejandro, 70 NY2d 133, 136 [1987] [internal citation omitted]). Since the information and supporting deposition here fail to allege facts establishing that the campus building defendant entered into was in any way “fenced or otherwise enclosed in a manner designed to exclude intruders” (Penal Law § 140.10 [a])—a required element of the crime—it was insufficient to establish criminal trespass in the third degree (see CPL 100.15 [3]; 100.40 [1] [c]). Thus, the information was properly dismissed as facially insufficient.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.

Order affirmed in a memorandum.

       As we hold that the information is defective for failure to specify every element of the crime of criminal trespass in the third degree, we need not determine whether the “persona non grata” letter is a lawful order within the meaning of Penal Law § 140.00 (5).


text:
    In the Matter of Michael Burress, Appellant, v Richard Dennison, as Acting Chairman of the New York State Division of Parole, Respondent.
    Submitted April 11, 2005;
    decided June 7, 2005
   Motion for leave to appeal dismissed upon the ground that the order sought to he appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Country Wide Insurance Company, Appellant, et al., Plaintiffs, v National Railroad Passenger Corporation, Also Known as Amtrak, Respondent.
    Submitted February 14, 2005;
    decided June 7, 2005
   Certification of questions by the United States Court of Appeals for the Second Circuit, pursuant to section 500.17 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.17), accepted and the issues presented are to be considered after briefing and argument.

Concur: Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith.


text:
    In the Matter of Michael H. Feinberg, a Judge of the Surrogate’s Court, Kings County, Petitioner. State Commission on Judicial Conduct, Respondent.
    Submitted May 16, 2005;
    decided June 7, 2005
   Motion by the Surrogate’s Association of the State of New York for leave to file a brief amicus curiae on the request for review herein granted and the proposed brief is accepted as filed.


text:
    Eduard Lleshanaku et al., Appellants, v Kenmore Associates, L.P, et al., Respondents.
    Submitted April 18, 2005;
    decided June 7, 2005
   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 (see NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]).


text:
    The People of the State of New York, Appellant, v Faye Dunn, Respondent.
    Submitted May 9, 2005;
    decided June 7, 2005
   Motion for assignment of counsel granted and Steven Feldman, Esq., 626 EAB Plaza, West Tower, 6th Floor, Uniondale, New York 11556 assigned nunc pro tunc as counsel to the respondent on the appeal herein [see 4 NY3d 495].


text:
    The People of the State of New York, Respondent, v Calvin Moore, Appellant.
    Submitted May 23, 2005;
    decided June 7, 2005
   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 Matthew Waldron, Appellant.
    Submitted May 31, 2005;
    decided June 7, 2005
   Motion for substitution of assigned counsel granted and David J. Wiikitsch, Esq., care of McNamee Lochner Titus & Williams, PC., 75 State Street, EO. Box 459, Albany, New York 12201 is assigned in the place and stead of J. Scott Porter, Esq., as counsel to the appellant on the appeal herein.


text:
    Marjorie Rosenkrantz, Appellant, v Harriet M. Steinberg, P.C., et al., Respondents.
    Submitted March 7, 2005;
    decided June 7, 2005
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that denied appellant’s motion to amend her 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:
    Jill Shuler et al., Appellants, v Larry Dupree et al., Respondents.
    Submitted April 11, 2005;
    decided June 7, 2005
   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. Motion for poor person relief dismissed as academic.


text:
    Stichting Ter Behartiging Van de Belangen Van Ouddaandeelhouders in Het Kapitaal Van Saybolt International B.V, Appellant-Respondent, v Philippe S.E. Schreiber et al., Respondents-Appellants, et al., Defendants, et al., Third-Party Defendant.
    Submitted February 22, 2005;
    decided June 7, 2005
   Certification of questions by the United States Court of Appeals for the Second Circuit, pursuant to section 500.17 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.17), accepted and the issues presented are to be considered after briefing and argument.

Concur: Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith. Taking no part: Chief Judge Kaye.


text:
    Kim Williams et al., Respondents, v Rachel LeChase et al., Appellants, and Bibby Electric, Respondent.
    Submitted March 14, 2005;
    decided June 7, 2005
   Motion, insofar as it seeks leave to appeal as against Bibby Electric, denied; motion, insofar as it seeks leave to appeal as against the plaintiffs, dismissed upon the ground that as to them, the orders sought to be appealed from do not finally determine the action within the meaning of the Constitution.


text:
    [832 NE2d 1186, 799 NYS2d 770]
    Amarnauth Outar et al., Respondents, v City of New York, Appellant.
    Decided June 9, 2005

      APPEARANCES OF COUNSEL

      Wallace D. Gossett, Brooklyn (.Lawrence A. Silver of counsel), for appellant.

      Lawrence P. Biondi, New York City, for respondents.

      Fiedelman & McGaw, Jericho (Jeanne A. Cygan, Andrew Zajac, Dawn C. DeSimone, Elizabeth Anne Bannon and Rona Platt of counsel), for Defense Association of New York, Inc., amicus curiae.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs. The elevation differential between the dolly and plaintiff was sufficient to trigger Labor Law § 240 (l)’s protection, and the dolly was an object that required securing for the purposes of the undertaking (cf. Narducci v Manhasset Bay Assoc., 96 NY2d 259, 268 [2001]).

Concur: Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith.


author: Memorandum. R.S. Smith, J.

text:
    [833 NE2d 695, 800 NYS2d 360]
    The People of the State of New York, Appellant, v Norris Williams, Respondent.
    Argued April 28, 2005;
    decided June 9, 2005

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney, New York City (Madeleine Guilmain and Mark Dwyer of counsel), for appellant.

      Center for Appellate Litigation, New York City {Robert S. Dean of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant allegedly sold two glassine envelopes of heroin to an undercover police officer during a buy-and-bust operation. The operation involved three officers—one undercover officer who purchased drugs from defendant, one undercover officer who observed the sale (the “ghost”) and an arresting officer, who did not see the drug exchange. At trial, the People presented only two witnesses. The arresting officer acknowledged that he had not seen the drug sale, nor had he seen defendant before arresting him. The purchasing officer testified that the individual from whom he bought drugs was wearing a distinctive blue and white flowered hat, but no such hat was inventoried, nor was it in defendant’s arrest photograph. Further, the police recovered neither prerecorded buy money nor any drug stash from defendant. Despite his alleged presence at the crime scene, the ghost officer did not testify.

At the charge conference, defendant requested that a portion of the judge’s proposed charge instructing jurors not to speculate about what evidence could have been presented not be given to the jury. According to defense counsel, such an instruction would “conflict with the concept that [the jurors are] to consider evidence or lack of evidence” (emphasis added). Agreeing that the instruction “might mislead the jury,” the trial judge told the parties that he would not give it.

In his summation, defense counsel argued that the People’s case was “skeletal,” pointing to the prosecution’s failure to introduce any evidence to corroborate the testimony of the single identifying witness—no prerecorded buy money, no blue and white flowered hat, no photograph of the defendant wearing the hat and, despite the alleged presence of the ghost officer at the time of the drug sale, no testimony from that second undercover. After summations, and despite his earlier ruling, the judge gave the charge to which defense counsel had objected, telling the jurors that they were not to “speculate on the whereabouts of people whose names are mentioned as having been at the alleged scene of the crime who were not called as witnesses. No one is required to come to court and testify. Don’t speculate on their non-appearance, or what they might have said if they would have come.”

We agree with the Appellate Division majority that, in the context of this case, the instruction was error, “given that the central theme of the defense at trial was that the one-witness identification was entirely uncorroborated and therefore unreliable, the effect of the court’s charge was essentially to instruct the jury not to consider the defense” (10 AD3d 213, 217 [1st Dept 2004]).

A defendant not necessarily entitled to a missing witness charge may nonetheless try to persuade the jury to draw inferences from the People’s failure to call an available witness with material, noncumulative information about the case (People v Tankleff, 84 NY2d 992, 994-995 [1994]). Defendant was entitled to argue that the jurors should consider the People’s failure to call the ghost officer to corroborate the single-witness identification in support of his defense that the People’s evidence was uncorroborated and “skeletal.” For the trial court to charge the jury both that it may not consider the absence of uncalled witnesses who were mentioned as being present at the alleged crime scene effectively deprived defendant of the force of his defense and may have misled the jurors to believe that they were not permitted to draw any inferences from the absence of the ghost officer at trial. On this record, we cannot say the error was harmless (see People v Kello, 96 NY2d 740 [2001]).

Defendant additionally argues that the trial court’s sua sponte decision to allow the undercover officer to testify anonymously— despite the prosecutor’s statement that she was not making such a request—was reversible error. In light of our decision as to the jury instruction, we need not reach this issue.

R.S. Smith, J.

(concurring). I cannot agree that Supreme Court’s charge was flawed. The court instructed the jury to “decide this case solely on the basis of the evidence or lack of evidence actually presented to you in this courtroom, which you actually saw and heard in this courtroom.” The court added: “Do not speculate on the whereabouts of people whose names are mentioned as having been at the alleged scene of the crime who were not called as witnesses. No one is required to come to court and testify. Don’t speculate on their non-appearance, or what they might have said if they would have come.” These were straightforward “do not speculate” instructions, neither wrong in themselves nor likely to mislead the jury in the context of this case. Defendant’s counsel, in his summation, barely mentioned the failure of the “ghost” officer to testify, and a reasonable jury would not have understood the court’s instructions as an order to disregard counsel’s argument.

Since I disagree with the majority on this issue, I reach, as the majority does not, the alternative ground defendant offers to support the Appellate Division’s reversal of his conviction. This alternative argument is based on Supreme Court’s ruling that the undercover officer who allegedly bought heroin from defendant could testify anonymously. The ruling was made during a colloquy that began when the prosecutor said she would not ask that the courtroom be closed pursuant to People v Hinton (31 NY2d 71 [1972]). The colloquy continued:

“ms. williams [the prosecutor]: So, my detective will
be using his name.
“the court: He will. Okay.
“ms. williams: I’m asking if the Court—
“the court: If he wants to; he doesn’t have to. He can use his number, if you’d rather go by number. That’s fine with me.
“ms. williams: Okay.
“mr verchick [defense counsel]: Well, I will object.
“the court: Over the Defense’s objection, he cannot state his name. I think that’s reasonable.”

This ruling clearly violated defendant’s right of confrontation under our decision in People v Stanard (42 NY2d 74 [1977]). We held in Stanard that a witness may be permitted to remain anonymous only where the prosecution makes “some showing of why the witness should be excused from answering” a question related to his identity. We said that “[e]xcuse may arise from a showing that the question will harass, annoy, humiliate or endanger the witness” (id. at 84). Even upon such a showing, anonymity is not granted automatically; the defendant is entitled to show “the materiality of the requested information to the issue of guilt or innocence,” and “the court must engage in a balancing process which compares the rights of the defendant to cross-examination . . . with the interest of the witness in retaining some degree of anonymity” (id.). Here, Supreme Court conferred anonymity on the witness sua sponte, although the prosecutor offered to have the witness use his name and did not try to make the showing Stanard requires.

The People’s only argument on this branch of the case is that defense counsel’s statement “I will object” was not specific enough to preserve the Stanard issue for review. But while we have at times required a more specific objection for preservation purposes (e.g., People v West, 56 NY2d 662 [1982]), we have never held that a simple “I object” is always insufficient. Here, where the error was egregious, and where the basis for defendant’s protest should have been obvious, the general objection fulfilled the purpose of the preservation requirement by alerting the trial judge to the error and giving him a chance to avoid it (cf. People v Vidal, 26 NY2d 249, 254 [1970]; People v Payne, 3 NY3d 266, 273 [2004] [“We decline to . . . elevate preservation to a formality that would bar an appeal even though the trial court . . . had a full opportunity to review the issue in question”]).

Accordingly, I would affirm the Appellate Division’s order on the ground that Supreme Court erred in allowing the undercover officer to testify anonymously.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo and Read concur; Judge R.S. Smith concurs in result in an opinion.

Order affirmed in a memorandum.


text:
    In the Matter of Elvin Lebron, Appellant, v Philip V. Donahue et al., Respondents.
    Submitted May 2, 2005;
    decided June 9, 2005
   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 Elvin Lebron, Appellant, v Sandra Lewis Smith, as Deputy Commissioner of the New York City Department of Corrections, et al., Respondents.
    Submitted May 2, 2005;
    decided June 9, 2005
   Motions 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. Motions for poor person relief dismissed as academic.


text:
    In the Matter of Leslie Ann W., Appellant, v Noah Alexander B., Respondent.
    Submitted May 16, 2005;
    decided June 9, 2005
   Motion for leave to appeal dismissed upon the ground that it does not lie (see NY Const, art VI, § 3 Ob]; CPLR 5602). Motion for a stay dismissed as academic.


text:
    The People of the State of New York ex rel. Santos Gonzalez, Appellant, v William E. Phillips, Respondent.
    Submitted April 18, 2005;
    decided June 9, 2005
   Motion, insofar as it seeks leave to appeal from the February 2005 Appellate Division order, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    The People of the State of New York ex rel. Tyrone Jackson, Appellant, v Frank J. Tracey, as Superintendent of the Downstate Correctional Facility, Respondent.
    Submitted April 25, 2005;
    decided June 9, 2005
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that denied appellant’s motion for poor person relief dismissed upon the ground that such part of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for poor person relief dismissed as academic.


author: Memorandum.

text:
    [833 NE2d 704, 800 NYS2d 369]
    The People of the State of New York, Respondent, v Charles Daniels, Appellant. The People of the State of New York, Respondent, v Byron Robinson, Appellant.
    Argued April 26, 2005;
    decided June 14, 2005

      APPEARANCES OF COUNSEL

      Legal Aid Society, New York City (Andrew C. Fine and Laura R. Johnson of counsel), for appellant in the first above-entitled action.

      Robert M. Morgenthau, District Attorney, New York City (Mark Dwyer of counsel), for respondent in the first above-entitled action.

      Legal Aid Bureau of Buffalo, Inc., Buffalo (Mary Good, David C. Schopp and Barbara J. Davies of counsel), for appellant in the second above-entitled action.

      Frank J. Clark, District Attorney, Buffalo (J. Michael Marion of counsel), for respondent in the second above-entitled action.

      Mischel Neuman & Horn, PC., New York City (James E. Neuman of counsel), and Richard D. Willstatter for New York State Association of Criminal Defense Lawyers and another, amici curiae in the first and second above-entitled actions.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division in each case should be affirmed. Defendants seek to have their persistent felony offender sentences (Penal Law § 70.10; CPL 400.20) vacated. In contrast to People v Rivera (5 NY3d 61 [2005]), defendants did not preserve their claims under Apprendi v New Jersey (530 US 466 [2000]). The prosecution argues that this failure precludes our review of the issue, while defendants contend that an alleged Apprendi violation goes to the mode of proceedings and does not require preservation. Even if an Apprendi violation may be raised as an unpreserved mode of proceedings error (see People v Rosen, 96 NY2d 329, 335 [2001]), defendants would not prevail on the merits (see Rivera).

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.

In each case: Order affirmed in a memorandum.


text:
    [833 NE2d 704, 800 NYS2d 369]
    The People of the State of New York, Respondent, v Oliver Giola West, Jr., Appellant.
    Decided June 14, 2005
    APPEARANCES OF COUNSEL

      Center for Appellate Litigation, New York City (Jan Noth of counsel), for appellant.

      Robert M. Morgenthau, District Attorney, New York City (Morrie I. Kleinbart of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. We need not decide whether defendant could raise his Apprendi v New Jersey (530 US 466 [2000]) argument for the first time on a motion to set aside his sentence pursuant to CPL 440.20 in view of the Court’s holding that New York’s persistent felony offender statute is constitutional (see People v Rivera, 5 NY3d 61 [2005]).

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed in a memorandum.


text:
    In the Matter of Stuart D. Baker et al., Appellants, v Patrick A. Heaney et al., Respondents.
    Submitted June 6, 2005;
    decided June 14, 2005
   Motion by the Suffolk County Village Officials Association, insofar as it seeks leave to file a brief amicus curiae on the motion for leave to appeal herein, granted; motion, insofar as it seeks leave to file a brief amicus curiae on the appeal herein, dismissed as academic.


text:
    Robert Greaves, Respondent, v Jaclyn Burlingame, Appellant.
    Submitted April 25, 2005;
    decided June 14, 2005
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying appellant’s motion for reargument or, in the alternative, leave to appeal to the Court of Appeals, dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for poor person relief dismissed as academic.


text:
    Robert Greaves, Respondent, v Jaclyn Burlingame, Appellant, et al., Defendant.
    Submitted April 25, 2005;
    decided June 14, 2005
   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. Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York, Respondent, v Alphonso Littlejohn, Appellant.
    Submitted June 6, 2005;
    decided June 14, 2005
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no civil appeal lies to the Court of Appeals from the order of the Appellate Division denying a motion for a writ of error coram nobis (see CPLR 5601, 5602; CPL 450.90).


text:
    [833 NE2d 1196, 800 NYS2d 521]
    Great Canal Realty Corp., Respondent, v Seneca Insurance Company, Inc., Appellant.
    Decided June 16, 2005

      APPEARANCES OF COUNSEL

      Tese & Milner, New York City (Michael M. Milner of counsel), for appellant.

      Alexander J. Wulwick, New York City, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, defendant’s motion for summary judgment granted and judgment granted declaring that defendant Seneca Insurance Company is not required to defend and indemnify Great Canal Realty Corp. in the underlying action. The certified question should be answered in the negative.

Where a policy of liability insurance requires that notice of an occurrence be given “as soon as practicable,” such notice must be accorded the carrier within a reasonable period of time (see Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436, 441 [1972]). The insured’s failure to satisfy the notice requirement constitutes “a failure to comply with a condition precedent which, as a matter of law, vitiates the contract” (Argo Corp. v Greater N.Y. Mut. Ins. Co., 4 NY3d 332, 339 [2005]). Hence, the carrier need not show prejudice before disclaiming based on the insured’s failure to timely notify it of an occurrence (see id.).

We have recognized that there may be circumstances that excuse a failure to give timely notice, such as where the insured has “a good-faith belief of nonliability,” provided that belief is reasonable (Security Mut. Ins. Co., 31 NY2d at 441). But we have further explained that “the insured’s belief must be reasonable under all the circumstances, and it may be relevant on the issue of reasonableness, whether and to what extent, the insured has inquired into the circumstances of the accident or occurrence” (id.; see also White v City of New York, 81 NY2d 955, 958 [1993] [stating that, “where a reasonable person could envision liability, that person has a duty to make some inquiry”]). Additionally, the insured bears the burden of establishing the reasonableness of the proffered excuse. Under the facts and circumstances of this case, plaintiff has failed to raise a triable issue of fact as to whether its delay in giving notice was reasonably founded upon a good-faith belief of nonliability.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur in memorandum.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, etc.


text:
    George Heath, Appellant, v John S. Wojtowicz et al., Respondents.
    Submitted May 2, 2005;
    decided June 16, 2005
   Motion for leave to appeal 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).


text:
    The People of the State of New York ex rel. Mark Williams, Appellant, v Michael Allard, Acting Superintendent, Gowanda Correctional Facility, Respondent.
    Submitted May 2, 2005;
    decided June 16, 2005
   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:
    Richard B. Sachs, Respondent, v Katayone Adeli, Appellant, et al., Defendants.
    Submitted May 31, 2005;
    decided June 16, 2005
   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. Cross motion to vacate or modify stay denied.


text:
    In the Matter of Benjamin Schussler, Appellant, v State University of New York et al., Respondents.
    Submitted April 25, 2005;
    decided June 16, 2005
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that dismissed the appeal to that Court from that part of Supreme Court’s judgment denying re-argument, dismissed upon the ground that such portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    [834 NE2d 776, 800 NYS2d 866]
    Larry Munoz, Respondent, et al., Plaintiff, v DJZ Realty, LLC, Appellant. (And a Third-Party Action.)
    Decided June 29, 2005
    APPEARANCES OF COUNSEL

      Law Offices of Craig E Curdo, Middletown (Gordon T Sakow of counsel), for appellant.

      Brecher Fishman Pasternack Popish Heller Reiff & Walsh, PC., New York City (Frank Gulino of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and defendant’s motion for summary judgment dismissing the Labor Law § 240 (1) cause of action granted. The certified question should be answered in the negative.

Plaintiff was injured in a fall while applying a new advertisement to the face of a billboard that sat atop a building owned by defendant. Plaintiffs activities may have changed the outward appearance of the billboard, but did not change the billboard’s structure, and thus were more akin to cosmetic maintenance or decorative modification than to “altering” for purposes of Labor Law § 240 (1) (see Joblon v Solow, 91 NY2d 457, 465 [1998]).

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur in memorandum.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, etc.


text:
    Brooklyn Navy Yard Development Corporation, Respondent, v J.M. Dennis Construction Corp. et al., Defendants, and Jeffrey Wengroff et al., Appellants.
    Submitted May 9, 2005;
    decided June 29, 2005
   Motion, insofar as it seeks leave to appeal from that portion of the November 2004 Appellate Division order that affirmed, as modified, the judgment of Supreme Court denied; motion for leave to appeal otherwise dismissed upon the ground that the remaining portion of the November 2004 Appellate Division order and the March 2005 Appellate Division order do not finally determine the action within the meaning of the Constitution.


text:
    Coleen Fertitta et al., Appellants, v August Pagano et al., Respondents.
    Submitted May 16, 2005;
    decided June 29, 2005
   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 Parker v Rogerson, 35 NY2d 751, 753 [1974]).


text:
    Mosdos Oraysa, Inc., Appellant, v Joseph Sausto et al., Respondents.
    Submitted April 25, 2005;
    decided June 29, 2005
   Motion, insofar as it seeks leave to appeal as against defendants Pleasant Fields, Inc. and Yeshaya Dovid Willner, dismissed upon the ground that as to those parties the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Keith G. O’Brien, Appellant, v Alan G. Hevesi, as State Comptroller, et al., Respondents.
    Submitted May 23, 2005;
    decided June 29, 2005
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]; Eaton v State of New York, 76 NY2d 824 [1990]).


text:
    The People of the State of New York, Respondent, v Sandro Lopez, Appellant.
    Submitted June 6, 2005;
    decided June 29, 2005
   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:
    Tomáz Mendes Regatos, Respondent, v North Fork Bank et al., Appellants, et al., Defendant.
    Submitted June 13, 2005;
    decided June 29, 2005
   Motion by the Clearing House Association L.L.C. for leave to appear amicus curiae on the appeal herein granted to the extent that the proposed brief is accepted as filed.


text:
    Tomáz Mendes Regatos, Respondent, v North Fork Bank et al., Appellants, et al., Defendant.
    Submitted June 27, 2005;
    decided June 29, 2005
   Motion by American Bankers Association et al. for leave to appear amici curiae on the appeal herein granted to the extent that the proposed brief is accepted as filed.


text:
    Injah Tafari, Appellant, v State of New York, Respondent.
    Submitted May 31, 2005;
    decided June 29, 2005
   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. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Myrna Torres, Appellant, v New York City Housing Authority, Respondent.
    Submitted May 16, 2005;
    decided June 29, 2005
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    Xiao Yang Chen, Appellant, v Ian Ira Fischer, Respondent.
    Submitted June 20, 2005;
    decided June 29, 2005
   Motion by American Academy of Matrimonial Lawyers, New York Chapter, for leave to appear amicus curiae on the appeal herein granted to the extent that the proposed brief is accepted as filed. Nineteen additional copies of the brief may be filed and two additional copies served within 10 days.


text:
    [834 NE2d 1256, 801 NYS2d 246]
    The People of the State of New York, Respondent, v Benjamin Hunter, Appellant.
    Argued June 7, 2005;
    decided June 30, 2005

      APPEARANCES OF COUNSEL

      J. Scott Porter, Seneca Falls, for appellant.

      Robert M. Morgenthau, District Attorney, New York City {Alice Wiseman and Mary C. Farrington of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Term should be affirmed.

By felony complaint, dated February 4, 2000, defendant was charged with two felony counts of assault in the second degree and one misdemeanor count of criminal possession of a weapon in the fourth degree. Thereafter, on February 9, 2000, the People reduced the felony assault charges to two misdemeanor counts of assault in the third degree and added misdemeanor charges of endangering the welfare of a child and harassment in the second degree. The requisite CPL 180.50 reduction inquiry, i.e., “whether the facts and evidence provide a basis for charging a nonfelony offense,” was not conducted (see People v Yolles, 92 NY2d 960, 961 [1998]). Defendant pleaded guilty to assault in the third degree and was sentenced to six months in jail. The Appellate Term affirmed, and a Judge of this Court granted defendant leave to appeal.

Defendant, by his guilty plea, forfeited any claim that Criminal Court failed to conduct the inquiry required by CPL 180.50 (see People v Hansen, 95 NY2d 227, 230 [2000]; People v Prescott, 66 NY2d 216 [1985]).

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.

Order affirmed in a memorandum.


text:
    [835 NE2d 325, 801 NYS2d 557]
    The People of the State of New York, Respondent, v Michael Johnson, Appellant.
    Argued June 7, 2005;
    decided June 30, 2005
    APPEARANCES OF COUNSEL

      Laura R. Johnson, New York City (Martin M. Lucente of counsel), for appellant.

      Robert T. Johnson, District Attorney, Bronx (William K. Clark and Joseph N. Ferdenzi of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Term should be affirmed.

By felony complaint, defendant was charged with one felony count of intimidating a victim or witness in the third degree and two counts each of the following misdemeanors: harassment, aggravated harassment and criminal contempt (all in the second degree). The prosecution moved to dismiss the felony charge, leaving only the misdemeanors. The court dismissed the felony charge without making any statement on the record as to the reason. Thereafter, defendant pleaded guilty to criminal contempt in the second degree and was sentenced to 60 days in jail. The Appellate Term affirmed, and a Judge of this Court granted defendant leave to appeal.

We agree with the Appellate Term that CPL 180.50 is not applicable here. That provision requires that before permitting reduction of a felony charge to a misdemeanor, the court conduct an inquiry to determine whether the available facts and evidence provide a basis for charging a nonfelony offense (see People v Yolles, 92 NY2d 960 [1998]). Here, however, the felony charge was not reduced, it was dismissed altogether, and defendant pleaded guilty to a separately charged misdemeanor. Under the circumstances, no CPL 180.50 inquiry was required.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.

Order affirmed in a memorandum.


text:
    [834 NE2d 1255, 801 NYS2d 245]
    The People of the State of New York, Respondent, v Elvis Lopez, Appellant.
    Decided June 30, 2005

      APPEARANCES OF COUNSEL

      Office of Appellate Defender, New York City (Daniel A. Warshawsky and Richard M. Greenberg of counsel), for appellant.

      Robert M. Morgenthau, District Attorney, New York City (Frank Glaser and Sylvia Wertheimer of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The suppression court did not commit reversible error in denying the Mapp/Dunaway portion of defendant’s suppression motion without a hearing. Given “(1) the face of the pleadings, (2) assessed in conjunction with the context of the motion, and (3) defendant’s access to information,” defendant’s allegations in support of his motion were too conclusory to warrant a hearing (People v Mendoza, 82 NY2d 415, 426 [1993]; see also People v Jones, 95 NY2d 721, 728-729 [2001]). Defendant gave a written postarrest statement, disclosed to him with the People’s voluntary disclosure form, that describes events very close in time and place to one of the charged crimes. The statement says that “one of the officers was with” one of the robbery victims, “so I knew they were looking for us, so I ran,” and also that, before his arrest, defendant threw a gun away. The statement on its face shows probable cause for defendant’s arrest, and defendant failed to controvert it in his motion papers.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed in a memorandum.


text:
    Cornelius Alexy et al., as Administrators of the Estate of James Alexy, Deceased, Appellants, v Richard Stein, Respondent.
    Submitted May 31, 2005;
    decided June 30, 2005
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Supreme Court’s order denying appellants’ motion to renew, 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:
    Cathyann Caporale, Appellant, v Michael C. Mesbah et al., Respondents.
    Submitted May 23, 2005;
    decided June 30, 2005
   Motion for leave to appeal dismissed upon the ground that it does not lie (see NY Const, art VI, § 3 [b]; CPLR 5602).


text:
    Andre Dolberry, Appellant, v State of New York, Respondent.
    Submitted May 31, 2005;
    decided June 30, 2005
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]). Motion for poor person relief dismissed as academic.


text:
    In the Matter of Kerry Kotler, Appellant, v Glenn S. Goord, as Commissioner of Correctional Services, et al., Respondents.
    Submitted May 23, 2005;
    decided June 30, 2005
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying appellant’s motion for discovery, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    R. James Long, Respondent, v Sage Estate Homeowners Association, Inc., et al., Appellants. (And a Third-Party Action.)
    Submitted May 16, 2005;
    decided June 30, 2005
   Motion for leave to appeal by Sage Estate Homeowners Association, Inc. dismissed upon the ground that as to that appellant the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion by Gary L. Greenhouse, insofar as it seeks leave to appeal as against R. James Long and Citadel Homes, Inc., dismissed upon the ground that as to those parties the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion by Gary L. Greenhouse, insofar as it seeks leave to appeal as against Faddegon’s Nursery, Inc., St. Joan of Arc Church and the Roman Catholic Diocese of Albany, denied.


text:
    In the Matter of Michael McKown, Respondent, v Anita Barnes, Also Known as Anita VanCoppenolle, Appellant. Matthew L. VanCoppenolle, Respondent, v Anita VanCoppenolle, Also Known as Anita Barnes, Appellant.
    Submitted May 31, 2005;
    decided June 30, 2005
   Motion for reargument of motions for leave to appeal denied [see 4 NY3d 818]. Motion for poor person relief dismissed as academic.


text:
    Tatia Morsette, Appellant, v “The Final Call,” Respondent.
    Submitted June 27, 2005;
    decided June 30, 2005
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that appellant is not a party aggrieved (see Whitfield v City of New York, 90 NY2d 777, 780 n [1997]).


text:
    In the Matter of Mohammad Naroor et al., Respondents, v Rizwan Gondal et al., Appellants, and Charles Schwab & Co., Inc., Respondent. (And Another Proceeding.)
    Submitted May 31, 2005;
    decided June 30, 2005
   On the Court’s own motion, appeal, insofar as taken by Rizwan Gondal on behalf of Gondal Asset Management, Inc., dismissed, without costs, upon the ground that a corporation must appear by attorney (see CPLR 321 [a]). On the Court’s own motion, appeal by Rizwan Gondal on his own behalf dismissed, without costs, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601). Motion for poor person relief dismissed as academic.


text:
    National Granite Title Insurance Agency, Inc., Respondent, v Cadlerock Properties Joint Venture, L.P., et al., Appellants.
    Submitted May 16, 2005;
    decided June 30, 2005
   Motion to enlarge the record on appeal denied. Motion for leave to appeal denied with $100 costs and necessary reproduction disbursements.


text:
    P&N Tiffany Properties, Inc., Appellant, v Leslie B. Maron et al., Respondents.
    Submitted May 23, 2005;
    decided June 30, 2005
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Supreme Court’s order denying appellant’s motion to renew, 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 Josephine Rossi, Appellant, v Town of Colonie Department of Assessment et al., Respondents.
    Submitted May 16, 2005;
    decided June 30, 2005
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument 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 leave to appeal otherwise denied. Motion for poor person relief dismissed as academic.


text:
    Michael Urfirer, Appellant, v Leslie Cornfeld, Respondent.
    Submitted May 23, 2005;
    decided June 30, 2005
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed the dismissal of the complaint, denied; motion for leave to appeal otherwise dismissed upon the ground that the remainder of the Appellate Division order does not finally determine the action within the meaning of the Constitution.