author: Read, J.

text:
    [808 NE2d 334, 776 NYS2d 199]
    The People of the State of New York, Appellant, v Dana W. Tyler, Respondent.
    Argued February 19, 2004;
    decided March 30, 2004

      POINTS OF COUNSEL

      Howard R. Relin, District Attorney, Rochester (Kelly Christine Wolford and Daniel R Majchrzak, Jr., of counsel), for appellant.
    Respondent improperly and prematurely requested a supporting deposition. Thus County Court erred in concluding that the ticketing trooper failed to timely serve a supporting deposition pursuant to CPL 100.25 (2). (People v Perry, 87 NY2d 353; People v Ney, 191 Misc 2d 185; People v Maran, 174 Misc 2d 327; People v DeLuca, 166 Misc 2d 313; People v Guerrerio, 181 Misc 2d 517; Matter of Knight-Ridder Broadcasting v Greenberg, 70 NY2d 151; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; Brothers v Florence, 95 NY2d 290; People v Lippman, 156 Misc 2d 333; People v Key, 45 NY2d 111.)

      Muldoon & Getz, Rochester (Gary Muldoon of counsel), for respondent.
    Because the supporting deposition was served 39 days after defendant’s request was received by the court, the supporting deposition was not timely served and filed, and the simplified traffic information was therefore defective. (People v Titus, 178 Misc 2d 687, 92 NY2d 986; People v Guerrerio, 181 Misc 2d 517; People v Ney, 191 Misc 2d 185; People v Brewer, 91 NY2d 999; People v McGettrick, 139 Misc 2d 403; Matter of Sulli v Appeals Bd. of Admin. Adjudication Bur., 55 AD2d 457; People v Perry, 87 NY2d 353; People v Lippman, 156 Misc 2d 333; People v Shipp, 137 Misc 2d 495; People v Jennings, 69 NY2d 103.)
   OPINION OF THE COURT

Read, J.

This case began on April 21, 2002, when defendant was ticketed for speeding. The front of the ticket directed defendant to appear in Webster Town Court on May 14, 2002, thus serving as an “appearance ticket” under CPL 150.10.

As is relevant here, Part “B” on the ticket’s reverse side instructed defendant how to enter a plea of not guilty by mail. Part “B” included a “notice”—mandated by CPL 150.10 (2) and 100.25 (4)—informing defendant that he was entitled to receive a supporting deposition if he requested it “within thirty days from the date [he was] directed to appear in court as set forth on this appearance ticket”; and asking him to check a box to indicate whether or not he requested a supporting deposition. Part “B” directed defendant to mail the ticket to Town Court within 48 hours of its receipt; and specified that Town Court would advise him of a trial date by mail.

Defendant completed Part “B,” signing it, entering his address and checking “Yes” to indicate that he requested a supporting deposition. Rather than mail the ticket within 48 hours, however, he hand delivered it to the office of the Town Court’s clerk on April 22, 2002, the day after he was ticketed. The clerk accepted defendant’s not guilty plea and request for a supporting deposition, and rescheduled his return date from May 14 to May 1, 2002. At his arraignment on May 1, 2002, defendant reiterated his not guilty plea as well as his request for a supporting deposition, which he received on May 31, 2002.

Defendant subsequently moved to dismiss the information, alleging that the supporting deposition was not timely served within 30 days after his initial request for it on April 22, 2002. Town Court denied the motion, construing CPL 100.25 (2) to preclude defendant from asking for a supporting deposition before May 14, 2002, the date he was originally directed to appear in court, or, at the earliest, May 1, 2002, when he was actually arraigned. On defendant’s appeal, County Court, Appellate Term, reversed. County Court concluded that defendant had made a timely request for a supporting deposition on April 22, 2002; therefore, the supporting deposition served on May 31, 2002—39 days later—was untimely. We agree.

As County Court recognized, CPL 100.25 (2) does not force a defendant to wait until arraignment to request a supporting deposition. The statute provides that a defendant may request one when “charged by a simplified information” (CPL 100.25 [2] [emphasis added]), and defendant was “charged” when he was ticketed. Further, defendant satisfied all the conditions for a “timely request”: he asked for the supporting deposition “before entry of a plea of guilty to the charge specified and before commencement of a trial thereon, but not later than thirty days after the date” he was “directed to appear in court as such date appear[ed] upon the simplified information and upon the appearance ticket issued pursuant thereto” (CPL 100.25 [2]).

The People rely on subdivisions (3) and (4) of CPL 100.25 to argue that a “timely request” for a supporting deposition cannot be made before the return date set forth on the appearance ticket. We read these subdivisions, however, as merely specifying the outside time limit within which a request must be made. In short, while a defendant cannot ask for a supporting deposition later than 30 days after the return date on the appearance ticket, nothing in CPL 100.25 or elsewhere prohibits a request prior to this return date so long as the defendant has not pleaded guilty and trial has not started.

Accordingly, the order of County Court should be affirmed.

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

Order affirmed.

      . Whether the clerk changed the return date immediately or sometime later is not clear.

      . Under CPL 100.25 (2),
      “[a] defendant charged by a simplified information is, upon a timely request, entitled as a matter of right to have filed with the court and served upon him ... a supporting deposition of the complainant police officer .... To be timely, such a request must ... be made before entry of a plea of guilty to the charge specified and before commencement of a trial thereon, but not later than thirty days after the date the defendant is directed to appear in court as such date appears upon the simplified information and upon the appearance ticket issued pursuant thereto. . . . Upon such a request, the court must order the complainant police officer or public servant to serve a copy of such supporting deposition upon the defendant or his attorney, within thirty days of the date such request is received by the court, or at least five days before trial, whichever is earlier, and to file such supporting deposition with the court together with proof of service thereof.”

      . CPL 100.25 (2) formerly “expressly provide[d] that a defendant is only entitled to a supporting deposition after he has been ‘arraigned upon a simplified information’ ” (see People v Perry, 87 NY2d 353, 355 [1996]). After Perry was decided, the Legislature amended the statute to replace “arraigned upon” with “charged by” (see L 1996, ch 67, § 2).


source: Caselaw Access Project

license: Public Domain

text:
    [807 NE2d 278, 775 NYS2d 229]
    Nicole David et al., Appellants, v County of Suffolk, Defendant, and Smithtown Central School District, Respondent.
    Argued October 22, 2003;
    decided November 20, 2003
    APPEARANCES OF COUNSEL

      Silberstein, Awad & Miklos, EC., Garden City {Joseph E Awad and Eaul N. Nadler of counsel), for appellants.

      Ahmuty, Demers & McManus, Alberston (.Brendan T Fitzpatrick of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

We agree with Supreme Court and the Appellate Division that defendant Smithtown Central School District demonstrated its entitlement to summary judgment dismissing plaintiffs’ negligent supervision claim. The infant plaintiff was injured in her second-grade gym class while participating in a cargo net climbing exercise. Although we have recognized that “[s]chools are not insurers of safety,” they are obligated to exercise such care of their students “as a parent of ordinary prudence would observe in comparable circumstances” (Mirand v City of New York, 84 NY2d 44, 49 [1994], citing Lawes v Board of Educ. of City of N.Y., 16 NY2d 302, 306 [1965]). In support of its motion for summary judgment, defendant relied on the deposition testimony of the physical education teacher supervising the class, who explained that he instructed the students on net climbing, demonstrated proper techniques and was 10 to 12 steps away from the infant plaintiff when she fell. The expert affidavit plaintiffs offered in response failed to establish the foundation or the source of the standards underlying the conclusion that defendant’s supervision of the infant plaintiff was inadequate. As such, the affidavit “lacked probative force and was insufficient as a matter of law” to overcome the school district’s motion for summary judgment (Diaz v New York Downtown Hosp., 99 NY2d 542, 545 [2002]).

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

Order affirmed, with costs, in a memorandum.


text:
    [802 NE2d 1080, 770 NYS2d 682]
    Richard Esposito, Appellant, v New York City Industrial Development Agency et al., Respondents.
    Decided November 20, 2003

      APPEARANCES OF COUNSEL

      Rheingold, Valet, Rheingold, Shkolnik & McCartney LLP, New York City (Hunter J. Shkolnik of counsel), for appellant.

      Fiedelman & McGaw, Jericho (Ross P. Masler of counsel), and Jacobowitz, Garfinkel & Lesman, for New York City Industrial Development Agency, respondent.

      Shaub, Ahmuty, Citrin & Spratt, LLP, New York City (Timothy R. Capowski of counsel), and Ahmuty, Demers & McManus, for American International Group, Inc. and another, respondents.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff was injured after falling from a ladder while attempting to remove a cover from an air conditioning unit on the 22nd floor of a commercial building in Manhattan. He was a member of Local 94 Operating Engineers Union, which did maintenance work for the building. American International Realty (AIR), a subsidiary of American International Group (AIG), leased the building from its owner, the New York City Industrial Development Agency (NYCIDA). Plaintiff sued AIR, AIG, NYCIDA and the New York City Environmental Development Corporation for violations of Labor Law § 240 (1) and § 241 (6). On the date of the accident, plaintiff was performing a monthly maintenance check of the air conditioning units on the 22nd through 29th floors. This included taking amperage readings and checking belts, sheaves and bearings. When checking the 22nd floor unit, plaintiff discovered a low amperage reading and heavy vibrations. The motor appeared worn and loose, and the belts were “chewed up.” He left and returned with tools and parts needed to fix the machine. As he climbed a ladder and began to remove the unit’s cover a second time, the bottom of the ladder “kicked out” and he fell.

Supreme Court held that plaintiff could not sustain a claim under section 240 (1), because he was not engaged in any of the covered activities. The Appellate Division affirmed, as do we. Section 240 (1) applies where an employee is engaged “in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.” Although repairing is among the enumerated activities, we have distinguished this from “routine maintenance” (Smith v Shell Oil Co., 85 NY2d 1000, 1002 [1995]). The work here involved replacing components that require replacement in the course of normal wear and tear. It therefore constituted routine maintenance and not “repairing” or any of the other enumerated activities.

As for Labor Law § 241 (6), we have held it inapplicable outside the construction, demolition or excavation contexts (see Nagel v D & R Realty Corp., 99 NY2d 98 [2002]). Therefore, the maintenance work involved in this case fell outside that section’s reach. We also agree that defendants satisfactorily established that plaintiff was a special employee of AIR.

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

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, in a memorandum.


text:
    [802 NE2d 1081, 770 NYS2d 683]
    The People of the State of New York, Respondent, v Laura Stiggins, Appellant.
    Argued October 23, 2003;
    decided November 20, 2003
    APPEARANCES OF COUNSEL

      Redmond. & Parrinello, LLP, Rochester (Bruce F. Freeman of counsel), for appellant.

      Eliot Spitzer, Attorney General, New York City (Alyson J. Gill, Michelle Aronowitz and Robin A. Forshaw of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of County Court should be reversed and a new trial ordered.

Defendant’s conviction of assault in the third degree and endangering the welfare of an incompetent person must be overturned because she was deprived of her right to a fair trial. It was apparent from the outset of the proceedings that the presiding town justice was unfamiliar with the mechanics of a jury trial, which prompted defense counsel to object to the continuation of the proceedings. The judge had to be guided by the prosecutor through every aspect of jury selection—he attempted to seat a jury before voir dire began, failed to elicit basic information regarding the qualifications of the prospective jurors and issued an oath to the trial jurors that did not comply with CPL 270.15 (2)—all of which resulted in the judge “relinquish[ing] control” over the jury selection process (People v Toliver, 89 NY2d 843, 844 [1996]).

This lack of adequate supervision and control permeated the remainder of the proceedings. The prosecutor had to interrupt the judge during preliminary jury instructions to tell him what to read. At the close of evidence but before summations, the judge attempted to give final instructions to the jury until the prosecutor interceded. During the charge to the jury, the judge read inapplicable instructions and was unaware that each element of the charged crimes must be explained to the jury, eliciting yet another intervention by the prosecutor. Finally, in response to the jury’s oral request for a readback of testimony, the prosecutor instructed the jury on the correct procedure for requesting evidence, thereby “assum[ing] the important function of maintaining control of jury deliberations” (People v Bayes, 78 NY2d 546, 551 [1991]). In all, it is evident that the judge failed to satisfy his obligation to maintain the integrity of the proceedings.

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

Order reversed and a new trial ordered, in a memorandum.


text:
    Rupert Blake et al., Appellants, v Neighborhood Housing Services of New York City, Inc., Respondent.
    Submitted November 3, 2003;
    decided November 20, 2003
   Motion by New York Trial Lawyers Association for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    In the Matter of K.L., Appellant. Glenn Martin, Respondent; Attorney General of State of New York, Intervenor-Respondent.
    Submitted September 22, 2003;
    decided November 20, 2003
   Motion by New York Lawyers for the Public Interest, Inc., et al. for leave to file a brief amici curiae on the appeal herein granted. Three copies of a brief may be served and 20 copies filed within 30 days.


text:
    The People of the State of New York, Respondent, v Michael Calabria, Appellant.
    Submitted November 17, 2003;
    decided November 20, 2003
   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 Patricio Linares, Appellant.
    Submitted November 10, 2003;
    decided November 20, 2003
   Motion for assignment of counsel granted and Laura Johnson, Esq., The Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Eric Providence, Appellant.
    Submitted November 3, 2003;
    decided November 20, 2003
   Motion for assignment of counsel granted and Laura Johnson, Esq., The Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    In the Matter of John L. Reynolds, Appellant, v Ernest J. Dustman et al., Respondents.
    Submitted November 17, 2003;
    decided November 20, 2003
   Motion by John L. Reynolds for assignment of counsel etc. denied.


text:
    In the Matter of Leonza Watkins, Appellant, v Glenn S. Goord, as Commissioner of Correctional Services, et al., Respondents.
    Submitted August 25, 2003;
    decided November 20, 2003
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    In the Matter of Freeman Webb, Appellant, v Glenn S. Goord, as Commissioner of the New York State Department of Correctional Services, et al., Respondents.
    Submitted September 8, 2003;
    decided November 20, 2003
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for poor person relief dismissed as academic.


text:
    [802 NE2d 1083, 770 NYS2d 685]
    The People of the State of New York, Respondent, v Jian Jing Huang, Appellant.
    Argued October 15, 2003;
    decided November 24, 2003

      APPEARANCES OF COUNSEL

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

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

Memorandum.

The order of the Appellate Division should be reversed and the case remitted to that Court, with directions to dismiss the appeal taken to that Court.

Arguing a misapprehension of his immigration status based on information provided by his attorney, defendant moved to withdraw his plea of guilty, after sentence had been pronounced in open court. In the alternative, he moved to vacate his plea under CPL 440.10 (1). Without describing the steps that are involved or what constitutes the entry of judgment, both parties concede that judgment had not been entered. Trial court treated the motion as a CPL 220.60 (3) application and granted it, giving defendant back his plea. “In the alternative,” the court also granted the CPL 440.10 motion.

The People appealed, contending that because sentence had been imposed, Supreme Court lacked the authority to treat defendant’s motion to withdraw his plea as a CPL 220.60 application, and, further, that relief pursuant to CPL 440.10 was unavailable because judgment had not been entered. Without deciding the specific procedural posture of the case, the Appellate Division rejected defendant’s ineffective assistance claim on the merits.

In appealing trial court’s determination—whether properly made under CPL 220.60 (3), or, alternatively, not expressly authorized by the CPL—the People sought review of a nonappealable order. As the parties agree, moreover, judgment had not been entered, and thus no appeal could lie from the “alternative” CPL 440.10 ruling. Accordingly, the Appellate Division had no jurisdiction to entertain the People’s appeal (see CPL 450.20).

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

Order reversed, etc.


text:
    In the Matter of Donald M. Bennett, Appellant, v New Rochelle Police Department, Respondent.
    Submitted October 6, 2003;
    decided November 24, 2003
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.

Judge Read taking no part.


text:
    In the Matter of James Edwards, Appellant, v James E. Pelzer, Respondent.
    Submitted September 29, 2003;
    decided November 24, 2003
   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 Sinclair Haberman, Appellant, v City of Long Beach et al., Respondents.
    Submitted October 6, 2003;
    decided November 24, 2003
   Motion to dismiss appeal granted and appeal dismissed, with $400 costs and $100 costs of motion, upon the ground that no substantial constitutional question is directly involved.


text:
    [802 NE2d 1089, 770 NYS2d 691]
    The People of the State of New York, Appellant, v Paul M. Berrus, Respondent.
    Argued October 23, 2003;
    decided November 25, 2003
    APPEARANCES OF COUNSEL

      Michael F. Young, District Attorney, Syracuse and D.J. & J.A. Orando (John A. Orando, Lisa M. Orando, Susan R. Rider and Mickelle A. Olawoye of counsel), for appellant.

      Costello, Cooney & Fearson, LLP, Syracuse (Samuel C. Young of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of County Court should be reversed and the simplified traffic information reinstated.

Defendant received a simplified traffic information for failing to have lights on the back of a tractor that was pulling a manure spreader, around 5:00 p.m. in the Town of Denmark, County of Lewis, on December 5, 2001. Relying upon advice from the Court Administration Resource Center, the Town Justice concluded, erroneously, that lights were not required because a tractor is not a motor vehicle within the meaning of Vehicle and Traffic Law §§ 375 and 376. The Town Justice dismissed the action in the interest of justice, and County Court affirmed.

In dismissing the case, the Town Justice referred to a provision of Vehicle and Traffic Law § 376 that was repealed by Laws of 1994, chapter 654, § 5, effective January 29, 1995, a provision referring to registered farm vehicles and requiring them to be equipped in accordance with regulations issued by the Commissioner of Motor Vehicles. By contrast, section 376 (1) (a) of the Vehicle and Traffic Law, which was in effect on the date the ticket was issued, requires lights on vehicles and thus includes tractors.

Moreover, when an action is dismissed in the interest of justice pursuant to CPL 170.40, the judge must consider, “individually and collectively,” the specific factors listed and must state reasons on the record (see also CPL 210.40). While dismissal may have been warranted, the record does not indicate that the Town Justice took into consideration the factors enumerated in CPL 170.40. We, therefore, reverse the order of County Court and reinstate the simplified traffic information.

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

Order reversed, etc.


text:
    [807 NE2d 282, 775 NYS2d 232]
    Roseanne Franchini et al., Appellants, v Suzanne Palmieri, Respondent.
    Decided November 25, 2003

      APPEARANCES OF COUNSEL

      DeLorenzo Law Firm, LLP, Schenectady (Thomas E. DeLorenzo of counsel), for appellants.

      Thuillez, Ford, Gold, Johnson & Butler, LLP, Albany (Debra J. Young of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

In this negligence action to recover for injuries allegedly sustained in a motor vehicle accident, defendant properly relied on medical records and reports prepared by plaintiff s treating physicians to establish that plaintiff did not suffer a serious injury causally related to the accident. Defendant having established prima facie entitlement to summary judgment, the burden shifted to plaintiff to offer proof in admissible form sufficient to create a material issue of fact necessitating a trial (see Giuffrida v Citibank Corp., 100 NY2d 72, 81 [2003]). Plaintiffs submissions were insufficient to defeat summary judgment because her experts failed to adequately address plaintiff’s preexisting back condition and other medical problems, and did not provide any foundation or objective medical basis supporting the conclusions they reached (see Romano v Stanley, 90 NY2d 444, 451-452 [1997]; see also Toure v Avis Rent A Car Sys., 98 NY2d 345, 357-358 [2002]).

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

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, in a memorandum.


text:
    In the Matter of Gabrielle HH., a Child Alleged to be Abandoned. Columbia County Department of Social Services, Respondent; Adam HH., Appellant.
    Submitted November 3, 2003;
    decided November 25, 2003
   Motion for leave to intervene granted to the extent of accepting as filed movant’s motion for dismissal of the appeal herein or, in the alternative, for reconsideration of this Court’s September 18, 2003 order granting leave to appeal. Motion to dismiss appeal or for reconsideration of motion for leave to appeal denied. Motion for leave to intervene otherwise denied.


text:
    Hawkeye Funding, Limited Partnership, et al., Appellants, v Duke/Fluor Daniel et al., Respondents.
    Submitted November 10, 2003;
    decided November 25, 2003
   Motion for leave to appeal denied with $100 costs and necessary reproduction disbursements. Motion for a stay dismissed as academic.


text:
    Sharwline Nicholson et al., Respondents, v Nicholas Scoppetta et al., Appellants.
    Decided November 25, 2003
   Certfication of questions by the United States Court of Appeals for the Second Circuit, pursuant to section 500.17 of the Rules 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 and Read.


text:
    Richard Becker, Appellant, v State of New York, Respondent.
    Submitted September 29, 2003;
    decided December 2, 2003
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that it does not lie (see NY Const, art VI, § 3 [b]; CPLR 5601). Motion for poor person relief dismissed as academic.


text:
    Shyron Bynog et al., Appellants-Respondents, v Cipriani Group, Inc., et al., Respondents-Appellants, et al., Defendants. (And Another Action.)
    Submitted October 6, 2003;
    decided December 2, 2003
   Motion to enlarge record on appeal denied.

Chief Judge Kaye taking no part.


text:
    Frances T. Ganzarski, Appellant, v Builders Company of America, Inc., et al., Respondents. (And a Third-Party Action.)
    Submitted September 8, 2003;
    decided December 2, 2003
   Motion, insofar as it seeks leave to appeal as against Builders Company of America, Inc., dismissed as untimely (see CPLR 5513 [b]); motion, insofar as it seeks leave to appeal as against the City of White Plains, denied.


text:
    In the Matter of Jefferson County Department of Social Services, on Behalf of Helen L.H., Respondent, v Mark L.O., Appellant.
    Submitted October 27, 2003;
    decided December 2, 2003
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed that part of Family Court’s order that denied appellant’s motion to vacate prior orders of the court, 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:
    The People of the State of New York ex rel. Fernando Gastelu, Appellant, v Dennis Breslin, Respondent.
    Submitted September 12, 2003;
    decided December 2, 2003
   Motion for leave to appeal dismissed upon the ground that relator has been released from custody and, therefore, his liberty is no longer restrained to such a degree as to entitle him to the extraordinary writ of habeas corpus (see People ex rel. Wilder v Markley, 26 NY2d 648). Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York ex rel. Emerson Thurman, Appellant, v Gary Hodges, as Superintendent of Gowanda Correctional Facility, et al., Respondents.
    Submitted October 14, 2003;
    decided December 2, 2003
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York ex rel. Jerome Williams, Appellant, v Edward R. Donnelly, as Superintendent of Wende Correctional Facility, Respondent.
    Submitted October 14, 2003;
    decided December 2, 2003
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no appeal lies to the Court of Appeals from the order of the individual Justice of the Appellate Division (see NY Const, art VI, § 3 [b]; CPLR 5601). Motion for poor person relief dismissed as academic.


text:
    Red Apple Child Development Center, Appellant, v Community School Districts Two et al., Respondents.
    Submitted September 12, 2003;
    decided December 2, 2003
   Motion by the Red Apple Child Development Center Parents Association for leave to file an affirmation amicus curiae on the motion for leave to appeal herein granted and the affirmation is accepted as filed.


text:
    In the Matter of the Claim of Frank Romano, Appellant, v New York City Department of Corrections, Respondent. Workers’ Compensation Board, Respondent.
    Submitted September 29, 2003;
    decided December 2, 2003
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain it (see CPLR 5602).


text:
    In the Matter of James Russo, Appellant, v Bernard Kerik, as Police Commissioner of the City of New York, Respondent.
    Submitted September 15, 2003;
    decided December 2, 2003
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    In the Matter of Lourdes Salgado, Appellant, v Ruben Franco, as Chair of the New York City Housing Authority, et al., Respondents.
    Submitted September 22, 2003;
    decided December 2, 2003
   Motion for leave to appeal dismissed as untimely. The prior motion for leave to appeal made to the Appellate Division was untimely (Karger, Powers of the New York Court of Appeals § 73, at 452 [3d ed]).


text:
    In the Matter of H. William Van Allen et al., Appellants, v Democratic State Committee of the State of New York et al., Respondents. Eliot Spitzer, Attorney General of the State of New York, Intervenor-Respondent.
    Submitted October 27, 2003;
    decided December 2, 2003
   On the Court’s own motion, appeal transferred, without costs, to the Appellate Division, Third Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]). Motion for relief ancillary to the appeal dismissed as academic.


text:
    [804 NE2d 399, 772 NYS2d 235]
    The People of the State of New York, Respondent, v Larry Andrew, Also Known as Larry Andrews, Appellant.
    Argued November 20, 2003;
    decided December 18, 2003

      APPEARANCES OF COUNSEL

      De Nice Powell, New York City, and Lynn W.L. Fahey for appellant.

      Richard A. Brown, District Attorney, Kew Gardens (Thomas S. Berkman and John M. Castellano of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted of assault in the first degree, upon a jury verdict, arising from an incident in a rooming house where both he and the complainant resided. Defendant interposed a defense of justification. The trial court admitted complainant’s hospital record into evidence, but redacted a notation by a resident physician stating that it was impossible to obtain the complainant’s consent to surgery because he was too drunk. Defendant claims that the redaction of this information was error. We note, however, that defendant had the laboratory results, showing complainant’s toxicology level, available for his use. Moreover, defendant did not rely on the purported intoxication of the complainant. We therefore conclude that the trial court properly exercised its discretion in redacting the notation.

Finally, the court did not violate defendant’s right to be present during the issuance of supplemental jury instructions. Defendant failed to come forward with substantial evidence to rebut the presumption of regularity that attaches to all criminal proceedings (see People v Foster, 1 NY3d 44 [2003]; see generally People v Harris, 61 NY2d 9, 16 [1983]; People v Richetti, 302 NY 290, 298 [1951]).

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

Order affirmed in a memorandum.


text:
    [807 NE2d 881, 775 NYS2d 770]
    The People of the State of New York, Appellant, v Jeffrey Santos, Respondent.
    Decided December 18, 2003
    APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney, New York City (Mary C. Farrington of counsel), for appellant.

      The Legal Aid Society, Brooklyn {Kevin F Casey of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The Court here lacks power to review the lower courts’ exercise of discretion in vacating the criminal conviction and granting a new trial on the basis of newly discovered evidence (People v Baxley, 84 NY2d 208, 212 [1994]; People v Fields, 66 NY2d 876, 878 [1985]).

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo and Read 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:
    [804 NE2d 964, 772 NYS2d 643]
    In the Matter of Gabrielle HH., a Child Alleged to be Abandoned. Columbia County Department of Social Services, Respondent; Adam HH., Appellant.
    Decided December 18, 2003
    APPEARANCES OF COUNSEL

      Theresa M. Suozzi, Saratoga Springs, for appellant.

      James A. Carlucci, Hudson, for respondent.

      J. Mark McQuerrey, Hoosick Falls, Law Guardian.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, without costs.

Biological father Adam HH. appeals from an Appellate Division order which affirmed a Family Court order terminating his parental rights on the ground of abandonment. Record evidence supports the affirmed factual findings that Adam HH. had no contact with either the child or the agency during the six months prior to the filing of the abandonment petition. This lack of contact evinces his intent to forego his parental rights (see Social Services Law § 384-b [5] [a]). Adam HH.’s contention that his parental rights were improperly terminated because the Department of Social Services (DSS) failed to demonstrate that it engaged in diligent efforts to encourage his relationship with the infant is misplaced. In the abandonment context, “the court shall not require a showing of diligent efforts, if any, by an authorized agency to encourage the parent to perform the acts specified in paragraph (a) of this subdivision” (Social Services Law § 384-b [5] [b]; see Matter of Julius P., 63 NY2d 477, 481 [1984]).

To the extent that Adam HH. now contends that he did not contact the agency because he believed that an order of protection prohibiting him from direct or indirect contact with the child barred him from doing so, the Appellate Division correctly observed that the proof adduced at the hearing provided no basis for this claim. Represented by counsel, he testified that he understood the order as preventing him from contacting the mother or child but he did not indicate that he believed the order prevented him from contacting DSS. His present claim is therefore unsupported by any evidence in the record. In any event, “[t]he statute makes clear that the burden rests on the parent to maintain contact” (Matter of Julius P., 63 NY2d at 481) and Family Court found that DSS did not discourage him from working with the agency to plan or provide for the child. In addition to his lack of contact with the agency, Adam HH. demonstrated a consistent pattern of disregarding his obligations as a parent—through his abuse of the biological mother, his violations of the orders of protection and his persistent refusal to submit to the court-ordered mental health evaluation.

Thus, there is no reason to disturb the determinations of Family Court and the Appellate Division that the agency established abandonment by clear and convincing evidence (see Social Services Law § 384-b [3] [g]; [4] [b]).

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, without costs, in a memorandum.


text:
    In the Matter of Terence Boddie, Appellant, v New York State Division of Parole, Respondent.
    Submitted September 29, 2003;
    decided December 18, 2003
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


text:
    Carvel Corporation, Appellant, v Elizabeth A. Noonan et al., Respondents, et al., Defendants, et al., Special Masters.
    Decided December 18, 2003
   Certification of questions by the United States Court of Appeals for the Second Circuit, pursuant to section 500.17 of the Rules 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 and Read.


text:
    Ashley Harris et al., Appellants, v Phillip Llewellyn, Defendant, and City of New York, Respondent.
    Submitted December 15, 2003;
    decided December 18, 2003
   Motion by the County of Albany, New York for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    In the Matter of Roberto Morales, Appellant, v Michael E. Bongiorno et al., Respondents.
    Submitted September 22, 2003;
    decided December 18, 2003
   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 Notre Dame Leasing, LLC, Respondent, v Alexandra Rosario et al., Appellants.
    Submitted December 1, 2003;
    decided December 18, 2003
   Motion by The Legal Aid Society for leave to appear amicus curiae on the appeal herein granted to the extent that three copies of a brief may be served and 20 copies filed within 20 days.


text:
    Maria N. Pelaez et al., Appellants, v Laura Seide et al., Defendants, and County of Putnam et al., Respondents.
    Submitted December 1, 2003;
    decided December 18, 2003
   Motion by New York City Coalition to End Lead Poisoning et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Maria N. Pelaez et al., Appellants, v Laura Seide et al., Defendants, and County of Putnam et al., Respondents.
    Submitted December 8, 2003;
    decided December 18, 2003
   Motion by the County of Onondaga, New York for leave to appear amicus curiae on the appeal herein granted to the extent that the proposed brief is accepted as filed.


text:
    The People of the State of New York, Respondent, v Angelo Ammarito, Appellant.
    Submitted November 24, 2003;
    decided December 18, 2003
   Motion for assignment of counsel granted and Laura Johnson, Esq., The Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Jason Scala, Appellant.
    Submitted December 15, 2003;
    decided December 18, 2003
   Motion for an extension of time to appeal to the intermediate appellate court dismissed upon the ground that the motion does not lie in the Court of Appeals (CPL 460.30 [1]).


text:
    The People of the State of New York, Respondent, v Rene Valencia, Appellant.
    Submitted December 8, 2003;
    decided December 18, 2003
   Motion for assignment of counsel granted and Laura Johnson, Esq., The Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    In the Matter of Stacy B., an Infant. Livingston County Department of Social Services, Respondent; Kathy B., Appellant, et al., Respondent.
    Submitted July 14, 2003;
    decided December 18, 2003
   Motion for leave to appeal dismissed upon the ground that the proceeding and the motion have abated because of the death of the movant.


text:
    [804 NE2d 400, 772 NYS2d 236]
    In the Matter of the Claim of Francisco Rodriguez, Respondent, v Burn-Brite Metals Company, Inc., et al., Appellants. Workers’ Compensation Board, Respondent.
    Argued November 18, 2003;
    decided December 22, 2003

      APPEARANCES OF COUNSEL

      Susan B. Marris, Liverpool, and Douglas J. Hayden, for appellants.

      Eliot Spitzer, Attorney General, New York City (Howard B. Friedland, Caitlin Halligan, Daniel Smirlock, Patrick Barnett-Mulligan, M. Patricia Smith and Iris A. Steel of counsel), for Workers’ Compensation Board, respondent.

      Thomas M. Robertson, Syracuse, for Francisco Rodriguez, respondent.
   OPINION OF THE COURT

Memorandum.

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

The Workers’ Compensation Board disqualified claimant from receiving wage replacement benefits as a penalty for having made false representations as defined in Workers’ Compensation Law § 114-a (1). The Board declined to cut off claimant’s medical benefits, however, determining that section 114-a (1) applies only to indemnity benefits. The Appellate Division agreed “that the Board does not have discretion under Workers’ Compensation Law § 114-a to terminate coverage for causally related medical treatment” (300 AD2d 904, 906 [3d Dept 2002]).

As part of a broad reform of New York’s system for compensating workers who suffer on-the-job injuries, the Legislature in 1996 amended the Workers’ Compensation Law to establish penalties for offering fraudulent information in support of a claim. Former section 114, the criminal fraud provision, was redrafted; sections 114-a and 114-b were added (L 1996, ch 635; see also Matter of Losurdo v Asbestos Free (1 NY3d 258 [2003] [decided today]). These provisions manifest a legislative intent to limit the forfeiture penalty for false statements or representations to wage replacement benefits. Specifically, section 114-a (1) refers exclusively to “compensation pursuant to section fifteen” of the Workers’ Compensation Law, which covers wage replacement benefits. Medical benefits for compensable injuries are provided for by section 13 of the Workers’ Compensation Law. Accordingly, section 114-a (1) restricts its forfeiture penalty to such “compensation” as comprises wage replacement benefits.

By contrast, section 114 (1) authorizes the court to punish a fraudulent “claim for payment or other benefit” (emphasis added) by ordering “forfeiture of all rights to compensation or payments of any benefit” (emphasis added). Thus, this provision—unlike section 114-a (1)—is not limited to wage replacement benefits under section 15 and instead encompasses forfeiture of “any benefit” (compare Workers’ Compensation Law § 15 [8] [d] and [f], which differentiate between “compensation” and “medical expense” or “medical benefits” or “medical expenses”). If the Legislature had likewise intended section 114-a (1) to extend to all possible benefits, it would have employed comparably unqualified language. Further, the presence of the general phrase “benefits or payments” in section 114-b, which deals with readjustment of an employer’s experience rating, does not nullify the precise, narrow language limiting the scope of section 114-a (1) to wage replacement benefits.

Finally, section 114-a (1) must be viewed in the overall context of the Workers’ Compensation Law, which the Legislature “enacted for socioeconomic remediation purposes as a means of protecting workers and their dependents from want in case of injury on the job” (Matter of Johannesen v New York City Dept. of Hous. Preserv. & Dev., 84 NY2d 129, 134 [1994] [internal quotation marks omitted]). Reading section 114-a (1) so as to disqualify a claimant with a compensable injury from receiving medical treatment is incompatible with these remedial purposes. If the false statement or representation calls the legitimacy of a compensable injury into question, an employer may always seek administrative review to discontinue medical benefits (Workers’ Compensation Law § 123).

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

Order affirmed, with costs, in a memorandum.


text:
    Chris S. Amo, Respondent, v Little Rapids Corporation et al., Defendants and Third-Party Plaintiffs-Appellants, and Laframboise Group, Ltd., Appellant. MRL Constructors of New York, Ltd., Third-Party Defendant-Appellant.
    Submitted November 10, 2003;
    decided December 22, 2003
   Motion by Chris S. Amo to dismiss the appeal taken by Laframboise Group, Ltd. granted and appeal dismissed, with $400 costs and $100 costs of motion, upon the ground that a CPLR 5601 (d) appeal does not properly lie here.

Judge Graffeo taking no part.


text:
    Chris S. Amo, Respondent, v Little Rapids Corporation et al., Defendants and Third-Party Plaintiffs-Appellants, and Laframboise Group, Ltd., Appellant. MRL Constructors of New York, Ltd., Third-Party Defendant-Appellant.
    Submitted November 10, 2003;
    decided December 22, 2003
   Motion by Laframboise Group, Ltd. for leave to appeal dismissed upon the ground that it does not lie. Movant previously sought leave to appeal to the Court of Appeals from the Appellate Division order from which leave to appeal is sought and the Court of Appeals previously reviewed the issues raised by that order (100 NY2d 531).

Judge Graffeo taking no part.


text:
    Chris S. Amo, Respondent, v Little Rapids Corporation et al., Defendants and Third-Party Plaintiffs-Appellants, and Laframboise Group, Ltd., Appellant. MRL Constructors of New York, Ltd., Third-Party Defendant-Appellant.
    Submitted November 29, 2003;
    decided December 22, 2003
   Motion by MRL Constructors of New York, Ltd. for leave to appeal dismissed upon the ground that it does not lie. Movant previously sought leave to appeal to the Court of Appeals from the Appellate Division order from which leave to appeal is sought and the Court of Appeals previously reviewed the issues raised by that order (100 NY2d 531).

Judge Graffeo taking no part.


text:
    Chris S. Amo, Respondent, v Little Rapids Corporation et al., Defendants and Third-Party Plaintiffs-Appellants, and Laframboise Group, Ltd., Appellant. MRL Constructors of New York, Ltd., Third-Party Defendant-Appellant.
    Submitted December 1, 2003;
    decided December 22, 2003
   Motion by Chris S. Amo to dismiss the appeal taken by MRL Constructors of New York, Ltd. granted and appeal dismissed, with $400 costs and $100 costs of motion, upon the ground that a CPLR 5601 (d) appeal does not properly lie here.

Judge Graffeo taking no part.


text:
    Chris S. Amo, Respondent, v Little Rapids Corporation et al., Defendants and Third-Party Plaintiffs-Appellants, and Laframboise Group, Ltd., Appellant. MRL Constructors of New York, Ltd., Third-Party Defendant-Appellant.
    Submitted November 3, 2003;
    decided December 22, 2003
   Motion by Little Rapids Corporation for leave to appeal dismissed upon the ground that it does not lie. Movant previously sought leave to appeal to the Court of Appeals from the Appellate Division order from which leave to appeal is sought and the Court of Appeals previously reviewed the issues raised by that order (100 NY2d 531).

Judge Graffeo taking no part.


text:
    Chris S. Amo, Respondent, v Little Rapids Corporation et al., Defendants and Third-Party Plaintiffs-Appellants, and Laframboise Group, Ltd., Appellant. MRL Constructors of New York, Ltd., Third-Party Defendant-Appellant.
    Submitted November 3, 2003;
    decided December 22, 2003
   Motion by Chris S. Amo to dismiss the appeal taken by Little Rapids Corporation granted and appeal dismissed, with $400 costs and $100 costs of motion, upon the ground that a CPLR 5601 (d) appeal does not properly lie here.

Judge Graffeo taking no part.


text:
    Betlem Service Corp., Respondent, v Theodore Kustas et al., Appellants.
    Submitted November 3, 2003;
    decided December 22, 2003
   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 entered in this action commenced in the Rochester City Court (NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]).


text:
    Hermino Negron et al., Plaintiffs, v Metro Women’s Center, Defendant, and David Benjamin, Appellant. City of New York et al., Third-Party Respondents.
    Submitted October 6, 2003;
    decided December 22, 2003
   Motion by David Benjamin, insofar as it seeks leave to appeal on behalf of Jacqueline Benjamin, dismissed upon the ground that David Benjamin is not authorized to represent Jacqueline Benjamin; motion for leave to appeal otherwise denied. Motion for poor person relief dismissed as academic.


text:
    NYCTL 1996-1 Trust, Respondent, v Andrew-Zuck Realty Corp. et al., Appellants, et al., Defendants.
    Submitted October 27, 2003;
    decided December 22, 2003
   Motion for reconsideration of this Court’s September 9, 2003 dismissal order denied [see 100 NY2d 613]. Motion for leave to appeal denied.


text:
    Paul Priore, Appellant, v New York Yankees et al., Respondents.
    Submitted October 27, 2003;
    decided December 22, 2003
   Motion by the Anti-Discrimination Center of Metro New York, Inc., insofar as it seeks leave to file a memorandum of law amicus curiae on the motion for leave to appeal herein, granted and the memorandum of law is accepted as filed; motion, insofar as it seeks leave to appear amicus curiae on the appeal herein, dismissed as academic.


text:
    [804 NE2d 411, 772 NYS2d 247]
    In the Matter of John L. Reynolds, Appellant, v Ernest J. Dustman et al., Respondents.
    Decided December 23, 2003

      APPEARANCES OF COUNSEL

      John L. Reynolds, appellant pro se.

      Dennis V. Tobolski, County Attorney, Little Valley, for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the case remitted to the Appellate Division to determine the appeal taken to that Court.

Petitioner commenced this CPLR article 78 proceeding challenging respondents’ jail time credit determination. Supreme Court dismissed the petition on the merits in a paper which, although labeled a “decision,” ended with a sentence stating that “[t]his decision shall constitute the order of the court.” The paper was neither stamped with a date and place of entry, nor signed by the clerk. On August 8, 2002, the County Attorney mailed petitioner a copy of the “decision” with a cover letter stating “[e]nclosed herewith please find the decision filed in the County Clerk’s Office on August 6, 2002” (emphasis added). On February 13, 2003, petitioner filed a notice of appeal, dated February 10, 2003. The Appellate Division dismissed the appeal as untimely, citing Norstar Bank of Upstate N.Y. v Office Control Sys. (78 NY2d 1110 [1991]).

CPLR 5513 (a) states that “[a]n appeal as of right must be taken within thirty days after service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry. ...” It is well settled that the requirements of CPLR 5513 (a) must be strictly followed (see Kelly v Sheehan, 76 NY 325, 326 [1879]; see also Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C5513:1, at 169; CPLR C5513:2, at 171). Compliance with CPLR 5513 (a) requires a notice of entry that refers to the appealable paper, and the date and place of its entry (see Norstar Bank, 78 NY2d 1110 [1991]; Porowski v Mason, 238 AD2d 559, 560 [2d Dept 1997]; Matter of Halpin v Perales, 203 AD2d 675, 676-677 [3d Dept 1994]).

Although the Supreme Court paper respondents served identifies itself as both a decision and order, it can be treated as a judgment determining the proceeding, an appealable paper (see CPLR 411; 5512 [a]). Nevertheless, respondents’ cover letter describing the enclosure as a “decision filed” was not notice of entry of a judgment or order. Consequently, the cover letter is insufficient for the notice of entry required by CPLR 5513 (a). In addition, because their cover letter did not alert petitioner to the enclosure of an appealable paper, respondents cannot rely on notations on the enclosed paper itself as providing essential elements of a notice of entry (cf. Norstar Bank, 78 NY2d at 1110). Moreover, the paper respondents enclosed was neither stamped with the date and place of entry nor signed by the clerk, and therefore did not provide the essential elements of a notice of entry (see CPLR 5016 [a]). Thus, petitioner’s time to appeal never commenced running and his appeal was timely taken.

Chief Judge Kaye and Judges G.B. Smith, Cipaeick, Rosenblatt, Geaffeo and Read 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:
    [804 NE2d 413, 772 NYS2d 249]
    In the Matter of 550 Halstead Corp., Appellant, v Zoning Board of Appeals of the Town/Village of Harrison et al., Respondents.
    Decided December 23, 2003

      APPEARANCES OF COUNSEL

      McCollough, Goldberger & Staudt, LLP, White Plains {Ruth F-L. Post and Anne De Sutter of counsel), for appellant.

      Joseph L. Latwin, Deputy Village Attorney, Harrison, for respondents.
   OPINION OF THE COURT

Memorandum.

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

Because nonconforming uses are viewed as detrimental to zoning schemes, public policy favors their reasonable restriction and eventual elimination (see Matter of Toys “R” Us v Silva, 89 NY2d 411, 417 [1996]). Accordingly, municipalities may adopt measures regulating nonconforming uses and may, in a reasonable fashion, eliminate them (see Matter of Syracuse Aggregate Corp. v Weise, 51 NY2d 278, 287 [1980]). Here, one of the purposes of the Town of Harrison’s Comprehensive Zoning Plan is to promote the “gradual elimination of nonconforming uses” (Town of Harrison Code § 235-2 [F]). To carry out this purpose, the Code prohibits the expansion, enlargement, extension, reconstruction, or structural alteration of any nonconforming use “by any means or in any respect whatsoever” (Town of Harrison Code § 235-52).

The Zoning Board of Appeals of the Town/Village of Harrison (ZBA) determined that when petitioner replaced its wooden pallet storage system with steel-frame storage racks, it impermissibly expanded or extended its nonconforming lumberyard. Substantial record evidence supports this determination: the new racks were significantly higher than the wooden pallets and could store three times the lumber; petitioner installed four additional racks; unlike the wooden pallets, the racks have roofs. Further, the ZBA’s denial of petitioner’s application for use and area variances was rational; the ZBA properly balanced benefits to the applicant with the detriment to the health, safety and welfare of the surrounding neighborhood (Matter of Sasso v Osgood, 86 NY2d 374, 384 n 2 [1995]).

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

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, in a memorandum.


text:
    Sean Casey, Plaintiff, v Paul Ruffino et al., Defendants. Decolator, Cohen & DiPrisco, LLP et al., Nonparty Respondents; Lysaght, Lysaght and Kramer, P.C., Nonparty Appellant.
    Submitted December 8, 2003;

    decided December 23, 2003
   Appeal by nonparty appellant Lysaght, Lysaght & Kramer, EC., dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the Appellate Division did not have the power to grant leave to appeal to the Court of Appeals on a certified question from an order granting a new hearing (see CPLR 5601 [c]; 5602 [b] [1]; Maynard v Greenberg, 82 NY2d 913). This dismissal is without prejudice to nonparty appellant taking any further action that may be available (see CPLR 5514 [a]).


text:
    Eden Roc Hotel, Ltd., Appellant, v David D. Gilbert, Respondent.
    Submitted November 10, 2003;
    decided December 23, 2003
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed that part of Supreme Court’s judgment that granted defendant’s counterclaim as to liability and severed the counterclaim, 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 the Claim of James Graham, Appellant, v Pathways, Inc., et al., Respondents. Workers’ Compensation Board, Respondent.
    Submitted November 17, 2003;
    decided December 23, 2003
   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:
    Jobman 478/480 L.P., Respondent, v William Bell et al., Appellants, and John Doe et al., Respondents.
    Submitted November 17, 2003;
    decided December 23, 2003
   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 entered in this proceeding commenced in the Civil Court of the City of New York (see NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]). Motion for a stay dismissed as academic.


text:
    Mitsuhiro Honzawa et al., Respondents, v Hirokuni Honzawa et al., Appellants.
    Submitted December 8, 2003;
    decided December 23, 2003
   Appeal, insofar as taken from that portion of the Appellate Division order that denied appellants’ motion to enlarge the record and affirmed Supreme Court’s order denying appellants’ motion to vacate the judgment, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; appeal otherwise dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    The People of the State of New York, Respondent, v Daniel R. Dana, Appellant.
    Submitted December 15, 2003;
    decided December 23, 2003
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no civil appeal lies from the order of County Court in this criminal action (NY Const, art VI, § 3 [b]; CPLR 5601; CPL 450.90, 470.60 [3]).


text:
    In the Matter of the City of Troy, Respondent, v Town of Pittstown et al., Appellants, and Brittonkill Central School District et al., Respondents. (And Two Other Related Proceedings.)
    Submitted November 24, 2003;
    decided December 23, 2003
   Motion by Coalition of Watershed Towns for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    Utica Mutual Insurance Company, Appellant, v Gulf Insurance Company, Respondent.
    Submitted November 17, 2003;
    decided December 23, 2003
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the action within the meaning of the Constitution. Motion for a stay dismissed as academic.


text:
    In the Matter of Citineighbors Coalition of Historic Carnegie Hill et al., Appellants, v New York City Landmarks Preservation Commission et al., Respondents.
    Submitted December 22, 2003;
    decided January 8, 2004
   Motion to enlarge the record on appeal denied.


text:
    Larisa Forster, Appellant, v City of New York et al., Respondents, et al., Defendant.
    Submitted December 11, 2003;
    decided January 8, 2004
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed Supreme Court’s order denying appellant’s cross motion for leave to amend the complaint, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Home Depot, U.S.A., Inc., Appellant, v Edward B. Dunn et al., Respondents.
    Submitted December 29, 2003;
    decided January 8, 2004
   Motion by New York State Conference of Mayors and Municipal Officials for leave to appear amicus curiae on the appeal herein granted to the extent that the proposed brief is accepted as filed.


text:
    In the Matter of Jazmone S., a Child Alleged to be Neglected. Administration for Children’s Services, Respondent; Philip J., Appellant. (Proceeding No. 1.) In the Matter of Ashley J., a Child Alleged to be Neglected. Administration for Children’s Services, Respondent; Philip J., Appellant. (Proceeding No. 2.) In the Matter of Zalika J., a Child Alleged to be Neglected. Administration for Children’s Services, Respondent; Philip J., Appellant. (Proceeding No. 3.) In the Matter of Ethan J., a Child Alleged to be Neglected. Administration for Children’s Services, Respondent; Philip J., Appellant. (Proceeding No. 4.)
    Submitted November 24, 2003;
    decided January 8, 2004
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceedings within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Paul A. Krohn, Appellant-Respondent, et al., Plaintiff, v New York City Police Department et al., Respondents-Appellants.
    Submitted December 22, 2003;
    decided January 8, 2004
   Motion by Anti-Discrimination Center of Metro New York, Inc. et al. for leave to file a brief amici curiae on consideration of certified question herein granted and the proposed brief is accepted as filed.


text:
    In the Matter of Legion of Christ, Incorporated, Appellant, v Town of Mount Pleasant et al., Respondents.
    Submitted January 5, 2004;
    decided January 8, 2004
   Motion by The Becket Fund For Religious Liberty for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    New York State Association of Nurse Anesthetists, Respondent, v Antonia C. Novello, as Commissioner of Health, et al., Appellants.
    Submitted December 22, 2003;
    decided January 8, 2004
   Motion by American Society of Anesthesiologists, et al. for leave to appear amici 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 within 10 days.


text:
    In the Matter of Notre Dame Leasing, LLC, Respondent, v Alexandra Rosario et al., Appellants.
    Submitted December 29, 2003;
    decided January 8, 2004
   Motion by Community Service Society of New York for leave to appear amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Maria N. Pelaez et al., Appellants, v Laura Seide et al., Defendants, and County of Putnam et al., Respondents.
    Submitted December 29, 2003;
    decided January 8, 2004
   Motion by New York State Trial Lawyers Association for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Maria N. Pelaez et al., Appellants, v Laura Seide et al., Defendants, and County of Putnam et al., Respondents.
    Submitted December 22, 2003;
    decided January 8, 2004
   Motion by Athari Law Office for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    The People of the State of New York, Respondent, v Nicholson McCoy, Appellant.
    Submitted December 22, 2003;
    decided January 8, 2004
   Motion by Thomas Aloi, et al. for leave to appear amici curiae on the appeal herein granted to the extent that 15 copies of a brief may be filed and 3 copies served within 20 days. The brief shall be one bound document captioned People v Nicholas McCoy listing all amici curiae and shall include the brief, supplemental brief and index of exhibits accepted by the Court of Appeals by orders dated July 1, 2002 and February 18, 2003 in the case People v James Cahill [see 2 NY3d 14 (2003)].


text:
    The People of the State of New York, Respondent, v Gustavo Reynoso, Appellant.
    Submitted December 22, 2003;
    decided January 8, 2004
   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:
    [806 NE2d 130, 774 NYS2d 105]
    Randall D. Dailey, Sr., et al., Respondents, v Patricia Keith et al., Appellants.
    Decided January 12, 2004

      APPEARANCES OF COUNSEL

      Davidson & O’Mara, EC., Elmira (Ransom E Reynolds, Jr., and Bryan J. Maggs of counsel), for appellants.

      Paul A. Argentieri, Hornell, for respondents.
   OPINION OF THE COURT

Memorandum.

The orders of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative. In exercising their discretion, the courts below did not err as a matter of law in refusing to allow the introduction of defendant’s deposition testimony at trial as evidence-in-chief. By voluntarily leaving the state and refusing to return for trial, defendant procured her own absence and, therefore, failed to satisfy CPLR 3117 (a) (3) (ii) (see United Bank v Cambridge Sporting Goods Corp., 41 NY2d 254, 264-265 [1976]). Thus, the deposition testimony was not admissible as of right.

Defendants’ remaining contentions are either unpreserved or lacking in merit.

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

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


text:
    [808 NE2d 352, 776 NYS2d 216]
    The People of the State of New York, Respondent, v Shaban Celaj, Appellant.
    Decided January 12, 2004

      APPEARANCES OF COUNSEL

      Steven R. Kartagener, New York City, for appellant.

      Robert T. Johnson, District Attorney, Bronx (Yael V. Levy of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. The determination of reasonable suspicion made by Supreme Court and affirmed by the Appellate Division involves a mixed question of law and fact which is supported by evidence in the record. Consequently, the issue is beyond further review by this Court.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Grapfeo and Read 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 Terence Boddie, Appellant, v Glenn S. Goord, as Commissioner of the Department of Correctional Services, et al., Respondents.
    Submitted September 29, 2003;
    decided January 12, 2004
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


text:
    Stephanie Bruker, Appellant, v Sullivan and Liapakis, P.C., et al., Respondents. Stephanie Bruker, Appellant, v Susan Savoca, Respondent.
    Submitted November 17, 2003;
    decided January 12, 2004
   Motion to enlarge the record on appeal denied.


text:
    Stephanie Bruker, Appellant, v Sullivan and Liapakis, P.C., et al., Respondents. Stephanie Bruker, Appellant, v Susan Savoca, Respondent.
    Submitted November 17, 2003;
    decided January 12, 2004
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as (1) dismissed appeals from Supreme Court orders denying reargument, (2) affirmed so much of a different Supreme Court order as denied appellant’s cross motion for leave to amend the complaint, and (3) denied appellant’s motion to enlarge the record on appeal, dismissed upon the ground that such portions of the order sought to be appealed from do not finally determine the actions 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 December 8, 2003;
    decided January 12, 2004
   Motion for leave to appeal dismissed upon the ground that it does not lie, appellant previously having moved for leave to appeal to the Court of Appeals from the Appellate Division order from which leave to appeal is currently sought (100 NY2d 639 [2003]).


text:
    For the People Theatres of N.Y., Inc., Doing Business as Fair Theatre, et al., Respondents, v City of New York et al., Appellants.
    Submitted January 12, 2004;
    decided January 12, 2004
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, First Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).


text:
    Hands-On-Mgt, Inc., Appellant, v C.D.O. Realty Corp. et al., Respondents.
    Submitted December 8, 2003;
    decided January 12, 2004
   Motion, insofar as it seeks leave to appeal as against Samana Management, LLC, denied; motion, insofar as it seeks leave to appeal as against C.D.O. Realty Corp., dismissed upon the ground that as to that party the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Shannon Nieves et al., Appellants, v Frank Girimonte et al., Respondents, and Suffolk County Water Authority, Respondent.
    Submitted January 12, 2004;
    decided January 12, 2004
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the two-Justice dissent is not on a question of law (CPLR 5601 [a]).


text:
    The People of the State of New York, Appellant, v Ezekiel Kollar, Respondent.
    Decided January 12, 2004
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed upon the ground that the reversal by the Appellate Division was not “on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]).

Concur: Chief Jude Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo and Read.


text:
    The People of the State of New York, Respondent, v Stuart Bennett Vorpahl, Appellant.
    Submitted January 5, 2004;
    decided January 12, 2004
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that it does not lie (see NY Const, art VI, § 3 [b]; CPLR 5601; CPL 450.90).


text:
    The People of the State of New York, Respondent, v Charles Voss, Appellant.
    Submitted November 24, 2003;
    decided January 12, 2004
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain it (see CPLR 5602). Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York ex rel. Philip Robinson, Appellant, v James Conway, Respondent.
    Submitted December 8, 2003;
    decided January 12, 2004
   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:
    Ten’s Cabaret, Inc., Formerly Known as Stringfellow’s of New York, Ltd., et al., Respondents, v City of New York et al., Appellants.
    Submitted January 12, 2004;
    decided January 12, 2004
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, First Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).


text:
    John F. Tobin, Plaintiff, v County of Ulster et al., Respondents. H. William Van Allen, Intervenor-Appellant.
    Submitted December 8, 2003;
    decided January 12, 2004
   On the Court’s own motion, appeal transferred, without costs, to the Appellate Division, Third Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]). Motion for relief ancillary to the appeal dismissed as academic.


text:
    [808 NE2d 854, 776 NYS2d 534]
    In the Matter of Michael Chang, Appellant, v Glenn S. Goord, as Commissioner of the New York State Department of Correctional Services, et al., Respondents.
    Decided February 12, 2004

      APPEARANCES OF COUNSEL

      Kuhy & Perez LLP, New York City (Ronald L. Kuhy of counsel), for appellant.

      Eliot Spitzer, Attorney General, Albany (Patrick J. Walsh of counsel), for Glenn S. Goord, as Commissioner of the New York State Department of Correctional Services, and others, respondents.

      Michael A. Cardozo, Corporation Counsel, New York City (Elizabeth I. Freedman and Francis F. Caputo of counsel), for Bernard Kerik, as Commissioner of the New York City Department of Corrections, and another, respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the matter remitted to Supreme Court for further proceedings in accordance with this memorandum. For the purpose of calculating jail time credit, Penal Law § 70.30 (3) makes no distinction between detention in New York and detention by the federal government or sister states (see Matter of Guido v Goord, 1 NY3d 345 [2004] [decided today]). Accordingly, petitioner is entitled to jail time credit for the period in which he was in federal custody.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo and Read concur in memorandum; Judge R.S. Smith taking no part.

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:
    [807 NE2d 864, 775 NYS2d 753]
    In the Matter of Silvan Tagliaferri, Doing Business as Castle Hill Homes, Respondent, v Charles G. Weiler et al., Constituting the Board of Zoning Appeals of the Incorporated Village of Hempstead, et al., Appellants.
    Decided February 12, 2004
    APPEARANCES OF COUNSEL

      C. Robinson, Thompson & Associates, LLP, New York City (Michael L. Moriello of counsel), for appellants.

      Minerva & D’Agostino, EC., Valley Stream (.Dominick M. Minerva of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the matter remitted to that Court for further proceedings consistent with this memorandum.

CPLR 2001 provides that, “[a]t any stage of an action,” absent prejudice of a “substantial right of a party,” the court shall disregard a “mistake, omission, defect or irregularity.” The attorneys for the Village of Hempstead Board of Zoning Appeals, its members, and the Village (collectively, Village respondents) recited in the text of the notice of appeal that the law firm was appealing; however, in the final signature section the notice of appeal listed the firm name and was signed by a firm attorney as “Attorneys for Respondents-Appellants.” In accordance with CPLR 2001, the Appellate Division should have disregarded the clerical error in the text of the notice of appeal and treated the appeal as taken by the Village respondents (see e.g. Broughton v Dona, 63 AD2d 1101, 1101 [1978], lv denied 47 NY2d 709 [1979]). Further, the Village respondents timely served and filed the notice of appeal. Petitioner indisputably understood that the Village respondents, and not their law firm, were the intended appellants. Accordingly, no substantial right of petitioner has been or will be prejudiced if the appeal goes forward (see Bracken v Niagara Frontier Transp. Auth., 251 AD2d 1068, 1069 [1998]).

The Appellate Division’s reliance on Scopelliti v Town of New Castle (92 NY2d 944 [1998]) is misplaced. There, the Appellate Division affirmed a Supreme Court order dismissing plaintiffs complaint and imposed sanctions on plaintiff’s attorney (see Scopelliti v Town of New Castle, 243 AD2d 701 [1997]). Plaintiffs motion to this Court addressed both the dismissal of his complaint and the sanctions award against his attorney. Because plaintiff was the only named movant in the notice of motion and nothing in the notice of motion or the supporting papers indicated that anyone other than plaintiff was seeking leave to appeal, the Court dismissed, for lack of aggrievement, that portion of plaintiffs motion which sought leave to appeal from the imposition of sanctions against his attorney (Scopelliti, 92 NY2d at 945). In contrast, the notice of appeal here ambiguously referred to the law firm both as the appellant and as attorneys for the ‘ ‘Respondents-Appellants. ’ ’ Moreover, apart from its representation of the Village respondents, the law firm had no apparent—or alleged—interest in the Supreme Court order granting the petition.

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:
    In the Matter of Citineighbors Coalition of Historic Carnegie Hill et al., Appellants, v New York City Landmarks Preservation Commission et al., Respondents.
    Submitted February 9, 2004;
    decided February 12, 2004
   Motion by Real Estate Board of New York, Inc. for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    John C. Fine, as Executor of Yvonne Fine, Deceased, Appellant, v City of New York et al., Respondents.
    Submitted December 1, 2003;
    decided February 12, 2004
   Motion for leave to appeal dismissed for failure to demonstrate timeliness as required by section 500.11 (d) (1) (iii) of the Rules of the Court of Appeals (22 NYCRR 500.11 [d] [1] [iii]). Motion for poor person relief dismissed as academic.


text:
    Home Depot, U.S.A., Inc., Appellant, v Edward B. Dunn et al., Respondents.
    Submitted February 9, 2004;
    decided February 12, 2004
   Motion by Building and Realty Institute of Westchester & The Mid-Hudson Region to file a brief amicus curiae on the appeal herein granted. Twenty copies of a brief may be filed and three copies served within 10 days.


text:
    New York State Association of Nurse Anesthetists, Respondent, v Antonia C. Novello, as Commissioner of Health, et al., Appellants.
    Submitted January 26, 2004;
    decided February 12, 2004
   Motion by American Association of Nurse Anesthetists for leave to appear amicus curiae on the appeal herein granted to the extent that the proposed brief is accepted as filed.


text:
    In the Matter of Notre Dame Leasing, LLC, Respondent, v Alexandra Rosario et al., Appellants.
    Submitted January 26, 2004;
    decided February 12, 2004
   Motion by City of New York for leave to appear amicus curiae on the appeal herein granted to the extent that 20 copies of a brief may be filed and three copies served within 10 days.


text:
    Thomas E. O’Brien et al., Respondents, v Town of Huntington et al., Appellants. Board of Trustees of the Town of Huntington, Nonparty Appellant. (Action No. 1.) Thurston K. Whitson et al., Respondents, v Town of Huntington et al., Appellants. Board of Trustees of the Town of Huntington, Nonparty Appellant. (Action No. 2.) Ruth Terry et al., Respondents, v Town of Huntington et al., Appellants. Board of Trustees of the Town of Huntington, Nonparty Appellant. (Action No. 3.) Royce W. Tabor et al., Respondents, v Town of Huntington et al., Appellants. Board of Trustees of the Town of Huntington, Nonparty Appellant. (Action No. 4.) Margaret Lockhart et al., Respondents, v Town of Huntington et al., Appellants. Board of Trustees of the Town of Huntington, Nonparty Appellant. (Action No. 5.) Robert D. Deasy et al., Respondents, v Town of Huntington et al., Appellants. Board of Trustees of the Town of Huntington, Nonparty Appellant. (Action No. 6.) Robert D. Deasy et al., Respondents, v Broad Hollow Estates, Inc., Appellant. Board of Trustees of the Town of Huntington, Nonparty Appellant. (Action No. 7.)
    Submitted December 15, 2003;
    decided February 12, 2004
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the actions within the meaning of the Constitution and is not an order of the type provided for in CPLR 5602 (a) (2).


text:
    The People of the State of New York, Respondent, v Ederick Fabricio, Appellant.
    Submitted February 9, 2004;
    decided February 12, 2004
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 45 West 45th Street, 7th Floor, New York, NY 10036 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Michael Henriquez, Appellant.
    Submitted January 26, 2004;
    decided February 12, 2004
   Motion for assignment of counsel granted and Laura Johnson, Esq., The Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Kenneth H. Payne, Appellant.
    Submitted January 26, 2004;
    decided February 12, 2004
   Motion for assignment of counsel granted and Robert C. Mitchell, Esq., Legal Aid Society of Suffolk County, Appeals Bureau, Arthur M. Cromarty Court Complex, 300 Center Drive, EO. Box 1697, Riverhead, NY 11901-0960 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Dallas Simon, Appellant.
    Submitted January 26, 2004;
    decided February 12, 2004
   Motion for an extension of time within which to apply for permission to appeal pursuant to CPL 460.20 dismissed upon the ground that no application for leave to appeal pursuant to CPL 460.20 will lie from an order of a single Justice of the Appellate Division denying leave to appeal to that Court pursuant to CPL 460.15.


text:
    Bertha Williams et al., Appellants, v City of New York, Respondent, et al., Defendants.
    Submitted February 9, 2004;
    decided February 12, 2004
   Motion by Detectives’ Endowment Association for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    [808 NE2d 333, 776 NYS2d 198]
    The People of the State of New York, Respondent, v Patrice Smith, Appellant.
    Argued January 13, 2004;
    decided February 17, 2004

      APPEARANCES OF COUNSEL

      Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert B. Hallborg, Jr., David C. Schopp and Barbara J. Davies of counsel), for appellant.

      Frank J. Clark, District Attorney, Buffalo (Raymond C. Herman and J. Michael Marion of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. Defendant was convicted of one count of intentional murder (Penal Law § 125.25 [1]), one count of felony murder (Penal Law § 125.25 [3]) and one count of robbery (Penal Law § 160.15 [1]). There was evidence adduced at trial that the 16-year-old defendant and a codefendant went to the home of the 71-year-old victim with the specific intent to rob him, then choked and suffocated him to death and stole his automobile.

Defendant sought to establish that she was under an extreme emotional disturbance because of her sexual relationship with the deceased over a period of months and his sexual advances on the night of the killing. She argued that her own testimony and that of other laypersons, but no expert psychiatric evidence, was sufficient to establish her extreme emotional disturbance. The trial court sustained the People’s objection to such testimony because of defendant’s failure to provide pretrial notice pursuant to CPL 250.10 (2). The Appellate Division affirmed without deciding whether notice should have been required, concluding that defendant would not have been entitled to a charge on extreme emotional disturbance in any event.

CPL 250.10 (2) states, “Psychiatric evidence is not admissible upon a trial unless the defendant serves upon the people and files with the court a written notice of his intention to present psychiatric evidence.” Once such notice is served, the People have the right to an examination of the defendant by a psychiatrist or a psychologist. While extreme emotional disturbance can be established without psychiatric testimony (People v Roche, 98 NY2d 70, 76 [2002]; People v Moye, 66 NY2d 887, 890 [1985]), defendant “cannot establish an extreme emotional disturbance defense without evidence that he or she suffered from a mental infirmity not rising to the level of insanity at the time of the homicide, typically manifested by a loss of self-control” (People v Roche, 98 NY2d at 75). The defense requires proof of a subjective element, that defendant acted under an extreme emotional disturbance, and an objective element, that there was a reasonable explanation or excuse for the emotional disturbance (People v Moye, 66 NY2d at 890).

Here, there was an insufficient offer of proof by defendant in support of an extreme emotional disturbance defense. Defendant’s proffered testimony did not establish that, at the time of the homicide, she was affected by her longstanding sexual relationship with the deceased to such" a degree that a jury could reasonably conclude that she acted under the influence of an extreme emotional disturbance (see People v White, 79 NY2d 900, 903 [1992]). Thus, we need not decide whether pretrial notice of defendant’s proffered testimony was required.

Defendant’s challenge to the sufficiency of the evidence supporting her felony murder conviction is without merit.

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

Order affirmed in a memorandum.


text:
    [808 NE2d 852, 776 NYS2d 532]
    Joyce Waldon, Respondent, v Little Flower Children’s Service et al., Appellants, et al., Defendant.
    Decided February 17, 2004

      APPEARANCES OF COUNSEL

      Conway, Farrell, Curtin & Kelly, P.C., New York City (Jonathan Uejio of counsel), for appellants.

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

Memorandum.

The order of the Appellate Division should be reversed, without costs, defendants-appellants’ motion for summary judgment dismissing the complaint granted, and the certified question answered in the negative.

Plaintiff foster parent was stabbed by her foster child’s biological mother as she was leaving the premises of defendant Little Flower Children’s Service, a private social services agency, after the agency supervised a visit between the child and her biological mother. Supreme Court denied the motion of the agency and the Roman Catholic Diocese of Brooklyn for summary judgment dismissing the complaint and the Appellate Division affirmed, with one Justice dissenting, concluding that triable issues of fact necessitated a trial. We disagree.

Assuming the agency owed the foster parent a duty of care, no evidence was proffered raising a question of fact on the issues of breach or causation. Although the biological mother had a history of mental illness, she had no history of violence, nor had she threatened agency staff or the foster parent in the past. The agency therefore had no reason to anticipate a violent outburst or to take steps to prevent contact between the biological mother and the foster parent. In addition, due to the suddenness of the attack and its location, the agency’s security staff had no opportunity to intervene to assist the foster parent. Under the circumstances of this case, defendants-appellants were entitled to summary judgment dismissing the complaint against them.

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:
    The People of the State of New York, Respondent, v Stephen Roberts, Appellant.
    Submitted February 2, 2004;
    decided February 17, 2004
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no civil appeal lies from the order of the Appellate Division entered in this criminal action (see NY Const, art VI, § 3 [b]; CPLR 5601; CPL 450.90).


text:
    [808 NE2d 1268, 777 NYS2d 9]
    The People of the State of New York, Respondent, v Byron Shelton, Appellant.
    Decided February 19, 2004

      APPEARANCES OF COUNSEL

      William G. Kastin, New York City, and Lynn W.L. Fahey, for appellant.

      Richard A. Brown, District Attorney, Kew Gardens (Jennifer Hagan of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant’s claim that the trial court misapplied the “prompt outcry” exception to the hearsay rule when it permitted the complainant’s daughter to testify lacks merit. An outcry of rape is prompt if made “at the first suitable opportunity” (People v O’Sullivan, 104 NY 481, 486 [1887]) and “is a relative concept dependent on the facts” (People v McDaniel, 81 NY2d 10, 17 [1993]). In determining that the complaint here was prompt, the trial court properly considered that the rape occurred late at night, that defendant warned complainant not to tell anyone, and that defendant lived in the same apartment building as the 81-year-old complainant;

Defendant’s preserved objections to the prosecutor’s summation do not merit reversal of the conviction.

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:
    Blue Cross and Blue Shield of New Jersey, Inc., et al., Plaintiffs-Respondents, v Philip Morris USA Incorporated et al., Defendants-Appellants, et al., Defendants.
    Submitted February 2, 2004;
    decided February 19, 2004
   Motion by Product Liability Advisory Council, Inc. for leave to appear amicus curiae on consideration of certified question herein granted to the extent that the proposed brief is accepted as filed. Twenty copies of the brief may be filed within 10 days.


text:
    In the Matter of Benjamin J. Bramble, Appellant, v New York State Board of Parole, Respondent.
    Submitted December 1, 2003;
    decided February 19, 2004
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Joseph J. Cerbone.
    Submitted January 20, 2004;
    decided February 19, 2004
   Motion by Thomas J. Singleton, Esq. for leave to appear amicus curiae on the request for review herein denied.


text:
    In the Matter of Citineighbors Coalition of Historic Carnegie Hill et al., Appellants, v New York City Landmarks Preservation Commission et al., Respondents.
    Submitted February 17, 2004;
    decided February 19, 2004
   Motion by Preservation League of New York State et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    In the Matter of Citineighbors Coalition of Historic Carnegie Hill et al., Appellants, v New York City Landmarks Preservation Commission et al., Respondents.
    Submitted February 17, 2004;
    decided February 19, 2004
   Motion by Carnegie Hill Neighbors, Inc. for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    In the Matter of Congregation Gates of Prayer of Far Rockaway, Inc., Appellant, v City of New York et al., Respondents.
    Submitted December 29, 2003;
    decided February 19, 2004
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed that part of Supreme Court’s order that denied appellant’s motion for leave to renew, 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:
    Genevit Creations, Inc., et al., Appellants, v Gueits Adams & Company et al., Respondents.
    Submitted January 5, 2004;
    decided February 19, 2004
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Supreme Court’s order granting respondents’ motion to quash the subpoena duces tecum, 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:
    Jani-Care, Inc., Appellant, v Corning Incorporated, Respondent.
    Submitted December 22, 2003;
    decided February 19, 2004
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed that portion of Supreme Court’s order that denied appellant’s motion to amend the complaint, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Paul A. Krohn, Respondent-Appellant, and Alli Katt, Respondent, v New York City Police Department et al., Appellants-Respondents.
    Submitted February 17, 2004;
    decided February 19, 2004
   Motion by New York State Conference of Mayors and Municipal Officials et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Ten additional copies of the brief may be filed within 10 days.


text:
    Donna McGrath et al., Respondents, v Toys “R” Us, Inc., Appellant.
    Decided February 19, 2004
   Certification of questions by the United States Court of Appeals for the Second Circuit, pursuant to section 500.17 of the Rules 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:
    The People of the State of New York, Respondent, v Simeon Duggins, Appellant.
    Submitted February 17, 2004;
    decided February 19, 2004
   Motion for assignment of counsel granted and Lynn WL. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Rene Resek, Appellant.
    Submitted February 17, 2004;
    decided February 19, 2004
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 45 West 45th Street, 7th Floor, New York, NY 10036 assigned as counsel to the appellant on the appeal herein.


text:
    Uri Tornheim, Appellant, v Doreen Tornheim, Respondent.
    Submitted December 8, 2003;

    decided February 19, 2004
   On the Court’s own motion, appeal taken from the order of the Appellate Division dismissing appellant’s appeal to that Court from an order of Supreme Court granting a motion to vacate a confession of judgment entered against appellant dismissed, without costs, upon the ground that appellant is not a party aggrieved (see CPLR 5511). Motion, insofar as it seeks leave to appeal from that portion of a separate Appellate Division order that affirmed so much of Supreme Court’s order and judgment as denied appellant’s motion to vacate a portion of the judgment of divorce, 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 leave to appeal from the remainder of that Appellate Division order denied.


text:
    Uri Tornheim, Respondent, v Doreen Tornheim, Respondent. Ernest H. Hammer, Nonparty Appellant.
    Submitted February 9, 2004;
    decided February 19, 2004
   Appeal by Ernest Hammer dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine an action or proceeding within the meaning of the Constitution.