text:
    [923 NE2d 582, 896 NYS2d 299]
    The People of the State of New York, Appellant, v Charles Zarate, Respondent.
    Decided February 11, 2010
    APPEARANCES OF COUNSEL

      Thomas J. Spota III, District Attorney, Riverhead (Thomas C. Costello of counsel), for appellant.

      Bassett & Bassett, P.C., Central Islip (Kerry Sloan Bassett of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed (see People v Price, 14 NY3d 61 [2010] [decided today]).

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


source: Caselaw Access Project

license: Public Domain

text:
    [923 NE2d 582, 896 NYS2d 299]
    The People of the State of New York, Appellant, v Andrew Luciere, Respondent.
    Decided February 11, 2010
    APPEARANCES OF COUNSEL

      Thomas J. Spota III, District Attorney, Riverhead (Thomas C. Costello of counsel), for appellant.

      Christopher J. Cassar, P.C., Huntington (Christopher J. Cassar of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed (see People v Price, 14 NY3d 61 [2010] [decided today]).

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


text:
    [923 NE2d 582, 896 NYS2d 299]
    The People of the State of New York, Appellant, v Henry Cozzani, Respondent.
    Decided February 11, 2010
    APPEARANCES OF COUNSEL

      Thomas J. Spota III, District Attorney, Riverhead (Thomas C. Costello of counsel), for appellant.

      Aaron M. Wallenstein, New York City, for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed (see People v Price, 14 NY3d 61 [2010] [decided today]).

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


author: Memorandum.

text:
    [926 NE2d 591, 900 NYS2d 237]
    The People of the State of New York, Appellant, v Daivery Taylor et al., Respondents.
    Argued January 5, 2010;
    decided February 11, 2010

      APPEARANCES OF COUNSEL

      Andrew M. Cuomo, Attorney General, New York City (Monica Wagner, Barbara D. Underwood and Roseann MacKechnie of counsel), for appellant.

      Anderson, Moschetti & Taffany, PLLC, Latham (Peter J. Moschetti, Jr., of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be reversed, the conviction of the Law Offices of Silver-man & Taylor of four counts of offering a false instrument for filing in the first degree reinstated, and the case remitted to the Appellate Division for further proceedings in accordance with this memorandum.

Defendant Law Offices was convicted, following a nonjury trial in Nassau County Court, of four counts of offering a false instrument for filing in the first degree under Penal Law § 175.35, a class E felony. The People’s theory of the case was that defendants, working with numerous others, engaged in a scheme to submit fraudulent claims to no-fault insurance carriers by having illegally solicited automobile accident victims exaggerate their injuries, receive excessive medical treatment, and file inflated claims. As relevant to this appeal, defendant Law Offices allegedly filed retainer statements with the Office of Court Administration (OCA) containing false representations as to the source of client referrals.

In reversing the conviction against defendant Law Offices, the Appellate Division concluded that the element of “intent to defraud” as required by Penal Law § 175.35 was not established because OCA did not itself “check, verify, or rely upon th[e] information” contained in the retainer statements (55 AD3d 640, 642 [2d Dept 2008]). We disagree with the Appellate Division’s legal conclusion that Penal Law § 175.35 requires that the receiving agency take action in reliance upon the filing of such information and itself be misled to its detriment. The statute, by its plain terms, contains no such element. “Intent to defraud” refers only to a defendant’s state of mind in acting with a conscious aim and objective to defraud (see Penal Law § 15.05 [1]; Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law § 175.30, at 79-80).

We therefore remit to the Appellate Division for consideration of the facts under the proper legal analysis and, if necessary, of othér issues raised but not determined on the appeal to that court.

Chief Judge Lippman and Judges Ciparick, Grapfeo, Read, Smith, Pigott and Jones concur in memorandum.

Order, insofar as appealed from, reversed, etc.

       Defendants were additionally convicted by County Court of a scheme to defraud under Penal Law § 190.65 (1) (b), which was reversed by the Appellate Division; the People do not challenge this here. Nor do the People appeal the Appellate Division’s dismissal of the indictment against defendant Daivery Taylor.


text:
    [926 NE2d 589, 900 NYS2d 235]
    In the Matter of David S. Vetter, Appellant, v Board of Education, Ravena-Coeymans-Selkirk Central School District, et al., Respondents.
    Argued January 5, 2010;
    decided February 11, 2010

      APPEARANCES OF COUNSEL

      James D. Bilik, Latham, and James R. Sandner for appellant.

      Shaw, Perelson, May & Lambert, LLP, Poughkeepsie (Mark C. Rushfield of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

Petitioner David Vetter was employed for the 2005-2006 school year as a probationary teacher by respondent Ravena-Coeymans-Selkirk Central School District. On June 21, 2006, respondent Board of Education voted to terminate petitioner as of July 21, 2006 based on allegations of misconduct. The Board did not provide petitioner with written notice of its action until almost a month later—two days before his termination was to be effective. Petitioner commenced this CPLR article 78 proceeding seeking an award of salary for 28 days due to the Board’s violation of Education Law § 3019-a; a name-clearing hearing under federal due process principles; and counsel fees pursuant to 42 USC § 1988.

Supreme Court denied petitioner’s Education Law § 3019-a claim but granted his application for attorneys’ fees. The Appellate Division modified by reversing the award of counsel fees and otherwise affirmed, reasoning that petitioner was not entitled to 28 days of pay because the applicable notice period occurred during summer vacation, a period when petitioner would not have received compensation (53 AD3d 847 [3d Dept 2008]). We granted petitioner leave to appeal (12 NY3d 713 [2009]).

Education Law § 3019-a requires school authorities to give probationary teachers written notice of termination at least 30 days before the effective date of termination. Similarly, where a probationary teacher is not recommended for tenure, the superintendent must issue written notice of that decision no later than 60 days before the probationary period expires (see Education Law § 2573 [1] [a]). The purpose underlying these notice provisions is to allow teachers whose services are to be discontinued a period of time to seek other employment (see Matter of Zunic v Nyquist, 48 AD2d 378, 380 [3d Dept 1975], affd on op below 40 NY2d 962 [1976]). Although the 30-day and 60-day notice statutes do not specify a remedy in the event of noncompliance, we determined in Matter of Tucker v Board of Educ., Community School Dist. No. 10 (82 NY2d 274 [1993]), an Education Law § 2573 (1) (a) case, that teachers are entitled to “one day’s pay for each day the notice was late” (id. at 278).

Here, the Board concedes that it failed to comply with Education Law § 3019-a but contends that a compensation remedy is inappropriate because the 28 days fell during summer vacation, a period when petitioner would not have been paid any salary had he received timely notice. But the same was true in Tucker, where a portion of the 52-day period extended into July and August. In that petitioner was only given two days’ notice, we conclude that a remittal is necessary for the calculation of an award of 28 days’ salary.

We agree, however, with the Appellate Division that petitioner was not entitled to counsel fees under 42 USC § 1988 (see Buckhannon Board & Care Home, Inc. v West Virginia Dept. of Health & Human Resources, 532 US 598 [2001]).

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

Order modified, etc.

      . The Board subsequently agreed to grant petitioner a name-clearing hearing.

      . Education Law § 3019-a correspondingly obligates probationary teachers to provide at least 30 days’ written notice prior to leaving their positions. Failure to comply with this mandate subjects the teacher to disciplinary sanctions imposed by the Commissioner of Education (see Matter of Union Free School Dist. No. 5 of Town of Greenburgh, Westchester County, 8 Ed Dept Rep 31, 32 [Decision No. 7893] [1968]; see also Matter of Board of Educ. of City School Dist. of City of Port Jervis v Burke, 94 Misc 2d 369, 371 [Sup Ct, Orange County 1978]).


text:
    [923 NE2d 583, 896 NYS2d 300]
    The People of the State of New York, Respondent, v Jerry Francois, Appellant.
    Decided February 11, 2010

      APPEARANCES OF COUNSEL

      Legal Aid Society, Criminal Appeals Bureau, New York City (Laura Liberman Cohen, Blaine [Fin] V. Fogg, Steven Banks and Seymour W. James, Jr., of counsel), for appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City (Lindsey M. Kneipper and Eleanor Ostrow of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The Appellate Division’s determination that the officer’s conduct did not elevate his encounter with defendant from a common-law inquiry to a seizure necessitating reasonable suspicion constitutes a resolution of a mixed question of law and fact that is supported by the record evidence (see generally People v Wheeler, 2 NY3d 370, 373 [2004]), and is therefore beyond this Court’s further power of review (see People v Battaglia, 86 NY2d 755, 756 [1995]).

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

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


text:
    [925 NE2d 867, 899 NYS2d 65]
    The People of the State of New York, Respondent, v Michael Edwards, Appellant.

      Decided February 11, 2010
    APPEARANCES OF COUNSEL

      Timothy P. Donaher, Public Defender, Rochester (Grazina Myers of counsel), for appellant.

      Andrew M. Cuomo, Attorney General, New York City (Roseann B. MacKechnie of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. Whether a particular request for counsel “is or is not unequivocal is a mixed question of law and fact,” which, if supported by record evidence, is beyond further review by this Court (People v Glover, 87 NY2d 838, 839 [1995]). Such record evidence exists here.

A missing witness charge is warranted for a party’s failure to produce a witness, under its control, where his or her testimony would have been material and noncumulative of other testimony or evidence (see People v Macana, 84 NY2d 173, 177 [1994]; People v Gonzalez, 68 NY2d 424, 427 [1986]). “[T]he party seeking the missing witness charge must sustain an initial burden of showing that the opposing party has failed to call a witness who could be expected to have knowledge regarding a material issue in the case and to provide testimony favorable to the opposing party” (Macana, 84 NY2d at 177). Here, defendant argued that the uncalled witness could have either contradicted or corroborated the complaining witness, but did not demonstrate that her testimony would have been noncumulative or expected to be favorable to the People.

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

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


text:
    In the Matter of Madeline Acosta, Respondent, v New York City Department of Education et al., Appellants.
    Submitted January 19, 2010;
    decided February 11, 2010
   Motion by Community Service Society et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    In the Matter of Madeline Acosta, Respondent, v New York City Department of Education et al., Appellants.
    Submitted January 19, 2010;
    decided February 11, 2010
   Motion by New York City Bar Association for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Amaranth LLC et al., Appellants, v J.P. Morgan Chase & Co. et al., Respondents.
    Submitted December 9, 2009;
    decided February 11, 2010
   Motion, insofar as it seeks leave to appeal as against J.E Morgan Chase & Co., dismissed upon the ground that as to said party the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion, insofar as it seeks leave to appeal as against J.E Morgan Futures, Inc., denied.


text:
    Cayuga Indian Nation of New York, Respondent, v David S. Gould, Cayuga County Sheriff, et al., Appellants, et al., Defendants.
    Submitted February 8, 2010;
    decided February 11, 2010
   Motion by United States of America for leave to file a brief amicus curiae on the appeal herein etc. granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Susan Cobaugh, Appellant, v County of Onondaga et al., Respondents.
    Submitted December 14, 2009;
    decided February 11, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Debra H., Appellant, v Janice R., Respondent.
    Submitted January 19, 2010;
    decided February 11, 2010
   Motion by Family Watch International for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Digital Broadcast Corporation, Appellant, v Ladenburg, Thalmann & Co., Inc., et al., Respondents, et al., Defendants.
    Submitted December 7, 2009;
    decided February 11, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    MIC Property & Casualty Corp., Appellant, v Merqui G. Avila et al., Defendants, and Karen Singleton Beards, Respondent.
    Submitted December 7, 2009;
    decided February 11, 2010
   Motion to dismiss appeal granted and appeal dismissed with $400 costs and $100 costs of motion upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v Gary Alford, Appellant.
    Submitted February 8, 2010;
    decided February 11, 2010
   Motion for assignment of counsel granted and Paul J. Connolly, Esq., 2 Wedge Road, Delmar, New York 12207 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Jamel Black, Appellant.
    Submitted January 25, 2010;
    decided February 11, 2010
   Motion for assignment of counsel granted and Lynn WL. Fahey, 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 Fatin Johnson, Appellant.
    Submitted February 8, 2010;
    decided February 11, 2010
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Robert Mothersell, Appellant.
    Submitted February 8, 2010;
    decided February 11, 2010
   Motion by Frank H. Hiscock Legal Aid Society to be relieved as appellant’s counsel on the appeal herein granted.


text:
    The People of the State of New York, Respondent, v Mujahid Muhammad, Appellant.
    Submitted February 8, 2010;
    decided February 11, 2010
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Maribel Otero, Appellant.
    Submitted February 1, 2010;
    decided February 11, 2010
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Michael Edward Prindle, Appellant.
    Submitted January 19, 2010;
    decided February 11, 2010
   Motion for assignment of counsel granted and Timothy P Donaher, Esq., Monroe County Public Defender, 10 N. Fitzhugh Street, Rochester, New York 14614 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Reginald Rabb, Appellant.
    Submitted February 8, 2010;
    decided February 11, 2010
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Appellant, v Albeiro Valencia, Respondent.
    Submitted February 8, 2010;
    decided February 11, 2010
   Motion by New York State Association of Criminal Defense Lawyers et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Pino Alto Partners, Individually and on Behalf of all Others Similarly Situated, Respondent, v Erie County Water Authority, Appellant.
    Submitted December 28, 2009;
    decided February 11, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Portfolio Recovery Associates, LLC, Respondent, v Jared King, Appellant.
    Submitted January 1, 2010;
    decided February 11, 2010
   Motion by AARP et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Alejandro Rosa, Appellant, v State of New York, Respondent.
    Submitted December 28, 2009;
    decided February 11, 2010
   Motion for reargument denied [see 13 NY3d 856 (2009)].


text:
    In the Matter of Robert T. Stewart, a Candidate for the Public Office of Chautauqua County Legislator, Seventh Legislative District, Respondent, v Chautauqua County Board of Elections et al., Respondents, and Leon H. Beightol et al., Appellants. In the Matter of Leon H. Beightol, a Candidate for the Public Office of Chautauqua County Legislator, Seventh Legislative District, Appellant, v Chautauqua County Board of Elections et al., Respondents, and Norman P. Green, Appellant. In the Matter of Leon H. Beightol, a Candidate for the Public Office of Chautauqua County Legislator, Seventh Legislative District, Appellant, v Chautauqua County Board of Elections et al., Respondents, and Norman P. Green, Appellant.
    Submitted January 25, 2010;
    decided February 11, 2010
   Motion by Leon H. Beightol for leave to appeal denied as unnecessary (see CPLR 5601 [a]). Motion by Leon H. Beightol for a stay granted. Motion by Norman E Green for leave to appeal denied as unnecessary (see CPLR 5601 [a]).


text:
    [925 NE2d 576, 898 NYS2d 538]
    The People of the State of New York, Appellant, v Thomas Edwards, Jr., Respondent.
    Decided February 16, 2010
    APPEARANCES OF COUNSEL

      Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), for appellant.

      Law Office of Susan V. Tipograph, New York City (Susan V. Tipo graph of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, the motion to suppress tangible property denied and the judgment of County Court reinstated.

Defendant was driving a vehicle that was stopped by the police based on probable cause to believe that a traffic infraction had occurred. During the course of the officers’ investigation, cocaine residue was observed on defendant’s hand and he was arrested. Crack cocaine was discovered in his pocket and there was over a half pound of the drug in the car.

Defendant moved to suppress the drugs, claiming that the police unlawfully extended the investigation of the traffic infraction because they suspected he might be involved with narcotics. Supreme Court denied the motion and defendant later pleaded guilty to drug and assault charges. The Appellate Division reversed, concluding that once the police officers determined that a traffic infraction had occurred, the purpose for the detention was exhausted and the continued seizure was unlawful. We disagree.

The initial stop of defendant’s vehicle was permissible and the police officers’ subjective motivation to investigate possible drug activity does not negate the objective reasonableness of the officers’ actions (see People v Wright, 98 NY2d 657, 658-659 [2002]; People v Robinson, 97 NY2d 341, 350 [2001]). In addition, here, as a matter of law, the officers did not inordinately prolong the detention beyond what was reasonable under the circumstances to address the traffic infraction (cf. People v Banks, 85 NY2d 558, 562 [1995], cert denied 516 US 868 [1995]). Rather, it was proper for the police officers to return to defendant’s vehicle in order to complete the traffic stop. Because drug residue was first seen while the police had a justifiable basis to continue the detention for the traffic infraction, that observation provided probable cause to arrest and search defendant, and the subsequent impoundment and inventory search of the vehicle were valid. Consequently, suppression of the drugs is not required.

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

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


author: Smith, J. (dissenting).

text:
    [925 NE2d 80, 899 NYS2d 748]
    In the Matter of Alan Kachalsky, Appellant, v Susan Cacace, a Judge of the Westchester County Court, Respondent.
    Decided February 16, 2010
    APPEARANCES OF COUNSEL

      Alan N. Kachalsky, Rye Brook, appellant pro se.

      Andrew M. Cuomo, Attorney General, New York City (Sasha Samberg-Champion, Barbara D. Underwood and Benjamin Gutman of counsel), for respondent.
   OPINION OF THE COURT

Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.

Concur: Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Pigott and Jones. Judge Smith dissents and votes to retain jurisdiction in an opinion.

Smith, J. (dissenting).

I dissent because I think the dismissal of this appeal exemplifies an amorphous definition of “substantial constitutional question” that is at odds with CPLR 5601 (b) (1) and the New York Constitution.

Article 6, § 3 (b) (1) of the New York Constitution says that appeals to this Court may be taken in civil cases and proceedings:

“As of right, from a judgment or order entered upon the decision of an appellate division of the supreme court which finally determines an action or special proceeding wherein is directly involved the construction of the constitution of the state or of the United States . . . .”

CPLR 5601 (b) tracks the Constitution:

“Constitutional grounds. An appeal may be taken to the court of appeals as of right:
“1. from an order of the appellate division which finally determines an action where there is directly involved the construction of the constitution of the state or of the United States . . . .”

Neither the Constitution nor the statute says that the constitutional question involved must be “substantial,” but we have interpreted them to mean that. And the interpretation makes sense, if “substantial” is taken literally. The authors of the Constitution and the statute surely did not intend to burden our Court with appeals as of right based on questions that are without substance, i.e., frivolous. As Karger points out, the substantiality requirement “is an obviously necessary safeguard against abuse of the right to appeal on constitutional questions, for otherwise the right to appeal would turn on the ingenuity of counsel in advancing arguments on constitutional issues, howsoever fanciful they might be” (Karger, Powers of the New York Court of Appeals § 7:5, at 226 [3d ed rev]).

But we have at times followed the practice—one in which, I confess, I have joined—of giving “substantial” a much more flexible meaning, so flexible that it confers on us, in effect, discretion comparable to that we have in deciding whether to grant permission to appeal under CPLR 5602. I am convinced that this practice is inconsistent with both the constitutional provision and the statute implementing it.

This case illustrates the point. Petitioner’s argument, rejected by the courts below, is that Penal Law § 400.00 (2) (f), which requires “proper cause” for the issuance of a license to carry a concealed pistol or revolver, violates the Second Amendment to the United States Constitution. Two constitutional questions are directly involved: (1) whether the Second Amendment limits the powers of the states, as well as of the federal government; and (2) whether a prohibition on carrying concealed weapons without a showing of proper cause is consistent with the Second Amendment. I make no comment on the merits of either issue, except to say that neither is insubstantial. The first is of such great substance, and current importance, that the Supreme Court has granted certiorari to consider it (McDonald v City of Chicago, 557 US —, 130 S Ct 48 [2009]). The second issue, in light of District of Columbia v Heller (554 US —, 128 S Ct 2783 [2008]), unquestionably presents fair ground for litigation. On neither issue could petitioner’s case, by any remote stretch, be called frivolous or fanciful.

There is, I recognize, a perfectly reasonable argument that, if we had discretion about whether to take up these issues now, we should choose not to do so; it might make sense to wait to see how the Supreme Court decides McDonald. I would not quarrel with that exercise of discretion, if I thought the discretion existed. I think, however, that petitioner has a constitutional right to have us hear this appeal, and that’s all there is to it.

Appeal dismissed, etc.


text:
    [925 NE2d 81, 899 NYS2d 749]
    Travis J. Bright, an Infant, by His Parent and Guardian, Gary Bright, et al., Appellants, v Nancy E. McGowan et al., Respondents, et al., Defendant.
    Decided February 16, 2010

      APPEARANCES OF COUNSEL

      Basch & Keegan, LLP, Kingston (Derek J. Spada of counsel), for appellants.

      Gordon & Silber, P.C., New York City (Shadrach A. Stanleigh and Andrew B. Kaufman of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, with costs, and defendants’ motion for summary judgment denied. In opposition to defendants’ prima facie case, plaintiffs raised a triable issue of fact.

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


text:
    In the Matter of Madeline Acosta, Respondent, v New York City Department of Education et al., Appellants.
    Submitted January 19, 2010;
    decided February 16, 2010
   Motion by Senator Bill Perkins 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 Ramon Alvarez, Appellant, v New York State Division of Parole et al., Respondents.
    Submitted December 21, 2009;
    decided February 16, 2010
   Motion for reconsideration of this Court’s October 22, 2009 dismissal order denied [see 13 NY3d 823 (2009)].


text:
    Jason Andrews, Respondent, v Northwest Auto Mall et al., Appellants.
    Submitted December 28, 2009;
    decided February 16, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Leslie Barnave, Appellant, v United Ambulette, Inc., et al., Respondents.
    Submitted December 14, 2009;
    decided February 16, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    John Chambers et al., Plaintiffs, and Peter Leidel et al., Appellants, v Old Stone Hill Road Associates et al., Respondents.
    Decided February 16, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution, and is not a nonfinal order which is appealable as of right within the Court of Appeal’s practice for enforcement of its remittitur.


text:
    Maribel Cuadrado, Respondent, v New York City Transit Authority et al., Appellants.
    Submitted December 14, 2009;
    decided February 16, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. An order denying a CPLR 4404 motion to set aside a verdict is nonfinal. The final and appealable paper to the Court of Appeals is the judgment entered after the denial of the motion.


text:
    In the Matter of Develop Don’t Destroy (Brooklyn) et al., Appellants, v Urban Development Corporation, Doing Business as Empire State Development Corporation, et al., Respondents.
    Submitted January 11, 2010;
    decided February 16, 2010
   Motion for reargument of motion for leave to appeal denied with $100 costs and necessary reproduction disbursements [see 13 NY3d 713 (2009)].

Chief Judge Lippman taking no part.


text:
    In the Matter of the Adoption of John Doe, an Infant. LMB, Respondent; ERJ, Appellant.
    Submitted December 21, 2009;
    decided February 16, 2010
   Motion to strike respondent’s brief denied.


text:
    Gartech Electrical Contracting Corp., Respondent, v Coastal Electric Construction Corp., Appellant.
    Submitted January 4, 2010;
    decided February 16, 2010
   Motion to dismiss appeal granted and appeal dismissed with $400 costs and $100 costs of motion upon the ground that the two-Justice dissent at the Appellate Division is not on a question of law (see CPLR 5601 [a]).


text:
    In the Matter of Angela Labita, Also Known as Angelica J. Labita, Deceased. Katherine D’Alessandro, Appellant; Nicolina D. Hayhurst, Respondent. Katherine D’Alessandro, Appellant, v Midway Nursing Home, Respondent.
    Submitted December 14, 2009;
    decided February 16, 2010
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain it (see NY Const, art VI, § 3 [b]; CPLR 5602). Motion for poor person relief dismissed as academic.


text:
    In the Matter of the Arbitration between Niagara Frontier Transportation Authority, Appellant, and International Longshoremen’s Association, Local 2028, Respondent.
    Submitted January 4, 2010;
    decided February 16, 2010
   Motion, insofar as it seeks leave to appeal from the Appellate Division order that dismissed the appeal from Supreme Court’s December 2008 order, dismissed upon the ground that appellant is not a party aggrieved (see CPLR 5511); motion, insofar as it seeks leave to appeal from the Appellate Division order that dismissed the appeal from Supreme Court’s January 2009 order, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Paul Z., a Child Alleged to be Severely Abused. Karen AA, Respondent; Paul N., Appellant.
    Submitted January 11, 2010;
    decided February 16, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v Danny Colon, Appellant. The People of the State of New York, Respondent, v Anthony Ortiz, Appellant.
    Submitted January 11, 2010;
    decided February 16, 2010
   Motion for reargument denied [see 13 NY3d 343 (2009)]. Chief Judge Lippman taking no part.


text:
    The People of the State of New York, Respondent, v Matthew Sanchez, Appellant.
    Submitted Janaury 11, 2010;
    decided February 16, 2010
   Motion for reargument denied [see 13 NY3d 554 (2009)].


text:
    Jacques Sebag, Appellant, v Carlos Narvaez, Respondent.
    Submitted January 19, 2010;
    decided February 16, 2010
   Motion for reargument of motion for leave to appeal etc. denied [see 13 NY3d 711 (2009)].


text:
    Chaim Sieger, Respondent, v Helen Sieger, Appellant.
    Decided February 16, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Tai Ping Chen, Appellant, v Citibank et al., Respondents.
    Submitted December 21, 2009;
    decided February 16, 2010
   Motion for reargument denied [see 13 NY3d 816 (2009)]. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Shawn L. Walker, Respondent, v Jeannie Hamlett, Appellant.
    Submitted December 28, 2009;
    decided February 16, 2010
   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 the Claim of Xiao Qing Liu, Appellant, v Richline Group/Bel-Oro et al., Respondents. Workers’ Compensation Board, Respondent.
    Submitted January 11, 2010;
    decided February 16, 2010
   Motion for reargument denied [see 13 NY3d 880 (2009)]. Motion for poor person relief dismissed as academic.


text:
    [925 NE2d 577, 898 NYS2d 539]
    David Belding, Respondent, v Verizon New York, Inc., et al., Appellants.
    Decided February 18, 2010

      APPEARANCES OF COUNSEL

      Cozen O’Connor, New York City (Edward Hayum of counsel), for appellants.

      Kelner & Kelner, New York City (Gail S. Kelner of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed with costs. The certified question should be answered in the affirmative.

Applying the bomb blast film to the lobby windows, in and of itself, qualifies as a significant alteration (see Labor Law § 240 [1]; Joblon v Solow, 91 NY2d 457, 465 [1998]). BlastGARD significantly altered the configuration or composition of the structure by changing the way the lobby windows react to explosions, impacts and the elements. The effects of this one-time security enhancement distinguish the activity from affixing an advertisement on a billboard, a more frequent change that has less structural effect (see Munoz v DJZ Realty, LLC, 5 NY3d 747 [2005]).

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

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


text:
    [925 NE2d 580, 898 NYS2d 542]
    The People of the State of New York, Respondent, v Juan Rivera, Appellant.
    Decided February 18, 2010
    APPEARANCES OF COUNSEL

      Juan Rivera, appellant pro se.

      Cyrus R. Vance, Jr., District Attorney, New York City (Timothy C. Stone of counsel), for respondent.

      Flemming Zulack Williamson Zauderer LLP, New York City (Megan P. Davis of counsel), for Appellate Courts Committee of the New York County Lawyers’ Association, amicus curiae.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant has not demonstrated the absence of a legitimate explanation for his appellate counsel’s failure to brief the issue whether his guilty plea should be vacated under People v Catu (4 NY3d 242 [2005]; see People v Borrell, 12 NY3d 365, 369 [2009]; People v Rivera, 71 NY2d 705, 709 [1988]).

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

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


text:
    Cayuga Indian Nation of New York, Respondent, v David S. Gould, as Cayuga County Sheriff, et al., Appellants, et al., Defendants.
    Submitted February 16, 2010;
    decided February 18, 2010
   Motion by District Attorneys Association of the State of New York for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Cayuga Indian Nation of New York, Respondent, v David S. Gould, as Cayuga County Sheriff, et al., Appellants, et al., Defendants.
    Submitted February 16, 2010;
    decided February 18, 2010
   Motion by Seneca Nation of Indians for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Cayuga Indian Nation of New York, Respondent, v David S. Gould, as Cayuga County Sheriff, et al., Appellants, et al., Defendants.
    Submitted February 16, 2010;
    decided February 18, 2010
   Motion by Day Wholesale, Inc. for leave to file a brief amicus curiae on the appeal herein denied.


text:
    Cayuga Indian Nation of New York, Respondent, v David S. Gould, as Cayuga County Sheriff, et al., Appellants, et al., Defendants.
    Submitted February 16, 2010;
    decided February 18, 2010
   Motion by New York State Association of Counties et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Cayuga Indian Nation of New York, Respondent, v David S. Gould, as Cayuga County Sheriff, et al., Appellants, et al., Defendants.
    Submitted February 16, 2010;
    decided February 18, 2010
   Motion by American Cancer Society, Eastern Division Inc. for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Cayuga Indian Nation of New York, Respondent, v David S. Gould, as Cayuga County Sheriff, et al., Appellants, et al., Defendants.
    Submitted February 16, 2010;
    decided February 18, 2010
   Motion by the City of New York for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    In the Matter of Ciara Lee C., a Child Alleged to be Permanently Neglected. Lourdes R., Appellant; Episcopal Social Services et al., Respondents.
    Submitted December 28, 2009;
    decided February 18, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    City of New York et al., Plaintiffs, v Thomas A. Maul, Defendant. L.J. et al., Intervenors-Respondents, v John B. Mattingly, as Commissioner, New York City Administration for Childrens’ Services, Appellant, et al., Defendant.
    Submitted February 16, 2010;
    decided February 18, 2010
   Motion by New York State Association of Counties for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    In the Matter of Daniel Goldstein et al., Appellants, v New York State Urban Development Corporation, Doing Business as Empire State Development Corporation, Respondent.
    Submitted December 21, 2009;
    decided February 18, 2010
   Motion for reargument etc. denied with $100 costs and necessary reproduction disbursements [see 13 NY3d 511 (2009)].


text:
    Ralph Hall, Appellant, v Jacoby and Meyers Law Offices, Inc., Respondent.
    Submitted January 4, 2010;
    decided February 18, 2010
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution. Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Kimberly Hurrell-Harring et al., on Behalf of Themselves and All Others Similarly Situated, Appellants, v State of New York et al., Respondents.
    Submitted February 16, 2010;
    decided February 18, 2010
   Motion by National Association of Criminal Defense Lawyers et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Kimberly Hurrell-Harring et al., on Behalf of Themselves and All Others Similarly Situated, Appellants, v State of New York et al., Respondents.
    Submitted February 16, 2010;
    decided February 18, 2010
   Motion by the Fund for Modern Courts for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Kimberly Hurrell-Harring et al., on Behalf of Themselves and All Others Similarly Situated, Appellants, v State of New York et al., Respondents.
    Submitted February 16, 2010;
    decided February 18, 2010
   Motion by Michael A. Battle et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Kimberly Hurrell-Harring et al., on Behalf of Themselves and All Others Similarly Situated, Appellants, v State of New York et al., Respondents.
    Submitted February 16, 2010;
    decided February 18, 2010
   Motion by Legal Aid Society for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Kimberly Hurrell-Harring et al., on Behalf of Themselves and All Others Similarly Situated, Appellants, v State of New York et al., Respondents.
    Submitted February 16, 2010;
    decided February 18, 2010
   Motion by New York State Defenders Association for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Kimberly Hurrell-Harring et al., on Behalf of Themselves and All Others Similarly Situated, Appellants, v State of New York et al., Respondents.
    Submitted February 16, 2010;
    decided February 18, 2010
   Motion by Innocence Project for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    In the Matter of James W. McDonald III, Respondent, v Jhenna A. Reed, Now Known as Jhenna A. Laflair, Appellant.
    Submitted January 4, 2010;
    decided February 18, 2010
   Motion for leave to appeal dismissed upon the ground that appellant is not a party aggrieved (see CPLR 5511).


text:
    The People of the State of New York, Respondent, v Tara Gravino, Appellant.
    Submitted February 16, 2010;
    decided February 18, 2010
   Motion by District Attorneys Association of the State of New York for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    The People of the State of New York, Respondent, v Steven Mason, Appellant.
    Submitted February 16, 2010;
    decided February 18, 2010
   Motion for leave to appeal granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Omar Montes, Appellant.
    Submitted February 16, 2010;
    decided February 18, 2010
   Motion for assignment of counsel granted and Steven Banks, Esq., the Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    Dominika Zakrzewska, Respondent, v The New School, Appellant, et al., Defendant.
    Submitted February 16, 2010;
    decided February 18, 2010
   Motion by National Employment Lawyers Association/New York Chapter et al. for leave to appear amici curiae on consideration of the certified question herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Dominika Zakrzewska, Respondent, v The New School, Appellant, et al., Defendant.
    Submitted February 16, 2010;
    decided February 18, 2010
   Motion by Memorial Sloan-Kettering Cancer Center et al. for leave to file a brief amici curiae on consideration of the certified question herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    [925 NE2d 92, 899 NYS2d 749]
    The People of the State of New York, Respondent, v Susan McDade, Appellant.
    Decided February 23, 2010

      APPEARANCES OF COUNSEL

      O’Connell & Aronowitz, Albany (Andrew R. Safranko of counsel), for appellant.

      Richard J. McNally, Jr., District Attorney, Troy (Ian H. Silverman of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. Legally sufficient evidence supports defendant Susan McDade’s conviction of second-degree rape. Forensic DNA testing of a penile swab from the victim, a severely mentally disabled 17-year-old boy, revealed the existence of significant amounts of defendant’s DNA, which established that defendant had extended, noncasual contact with the victim’s penis. Eyewitness evidence established that both the victim and defendant were naked. Moreover, the People elicited additional evidence that the victim, who had the cognitive abilities of a toddler, did not understand sex and was not known to masturbate or ejaculate. This evidence provided a valid line of reasoning and permissible inferences that could lead a rational jury to conclude that the contact between defendant and L.R. was sexual intercourse, rather than oral sex or hand-to-penis contact, neither of which would require defendant to be completely naked and which would have resulted in sexual gratification to an individual who could not have understood. The fact that other inferences could have been drawn by the jury does not render the evidence legally insufficient.

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

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


text:
    [925 NE2d 93, 899 NYS2d 750]
    In the Matter of Suffolk County Community College et al., Respondents, v New York State Division of Human Rights, Appellant and Cross Petitioner. Bruce Simmons, Respondent on the Cross Petition.
    Decided February 23, 2010
    APPEARANCES OF COUNSEL

      Michael K. Swirsky, Bronx, for appellant.

      Christine Malafi, County Attorney, Hauppauge (Jennifer K. McNamara of counsel), for respondents.
   OPINION OF THE COURT

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

as appealed from, reversed, with costs, and matter remitted to the Appellate Division, Second Department, for consideration of issues raised but not determined on the proceedings before that court. Substantial evidence in the record supports the determination of the State Division of Human Rights that complainant was subjected to unlawful discriminatory employment practices.

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


text:
    Walter Adams, Respondent, v Genie Industries, Inc., Appellant.
    Submitted February 16, 2010;
    decided February 23, 2010
   Motion by Product Liability Advisory Council for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    In the Matter of Anonymous, an Applicant for Admission to the Bar.
    Decided February 23, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Tazewell Delaney et al., Appellants, v John Weston et al., Respondents.
    Submitted November 23, 2009;
    decided February 23, 2010
   Motion for leave to appeal dismissed upon the ground that the Appellate Division order does not finally determine the action within the meaning of the Constitution. The parties’ stipulation, being conditional, does not finally determine the counterclaims for purposes of this Court’s jurisdiction.


text:
    In the Matter of the Estate of Rita DeLorenzo, Deceased. Joya Paterson et al., Respondents; Sun Life Insurance and Annuity Company of New York, Appellant.
    Submitted January 4, 2010;
    decided February 23, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Anthony DiSimone, Appellant, v Lester B. Adler et al., Respondents.
    Decided February 23, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Bernhard Christian Helgason, Appellant, v New York State Division of Housing and Community Renewal, Respondent. Bernhard Christian Helgason, Appellant, v State of New York (Division of Housing and Community Renewal), Respondent.
    Submitted December 28, 2009;
    decided February 23, 2010
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601). Motion for leave to appeal denied.


text:
    In the Matter of Lockport Smart Growth, Inc., et al., Appellants, v Town of Lockport et al., Respondents. (Proceeding No. 1.) In the Matter of Lockport Smart Growth, Inc., et al., Appellants, v Town of Lockport Zoning Board of Appeals et al., Respondents. (Proceeding No. 2.)
    Submitted January 4, 2010;
    decided February 23, 2010
   Motion by James Harris et al. for leave to file a memorandum of law amici curiae on the motion for leave to appeal herein denied, and for leave to file a brief amici curiae on the appeal herein dismissed as academic.


text:
    Rukminamma Madireddy, Appellant, v Subba Reddy Madireddy, Also Known as Subba A. Reddy, Respondent, and Chittemma Reddy, Intervenor-Respondent.
    Decided February 23, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved. The constitutional issue was not preserved.


text:
    Timothy Makara, Respondent, v Kelly Makara, Appellant. Karen Khan, Nonparty Appellant; Raylene Shayo, Nonparty Respondent.
    Submitted December 21, 2009;
    decided February 23, 2010
   Motion, insofar as it seeks leave to appeal from the portion of the September 2009 Appellate Division order that affirmed the imposition of sanctions against appellants and the grant of a counsel fee award to nonparty Shayo, denied; motion for leave to appeal otherwise dismissed upon the ground that the remainder of the September 2009 Appellate Division order and the Appellate Division order denying reargument or, in the alternative, leave to appeal to the Court of Appeals, do not finally determine the action within the meaning of the Constitution.


text:
    Frank Miraglia, Respondent, v H & L Holding Corp., Defendant and Third-Party Plaintiff. Lane & Sons Construction Corp., Third-Party Defendant-Appellant.
    Submitted December 28, 2009;
    decided February 23, 2010
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed that part of Supreme Court’s order that denied third-party appellant Lane and Sons Construction Corp.’s motion to amend the judgment, 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:
    Cornelius J. O’Connor Jr., Respondent, v Syracuse University et al., Defendants, and Brian McNeil, Appellant.
    Submitted December 14, 2009;
    decided February 23, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Oxford Health Plans, Inc., Respondent, v Howard L. Scheiner, M.D., Appellant.
    Submitted January 4, 2010;
    decided February 23, 2010
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument or, in the alternative, leave to appeal to the Court of Appeals, dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    The People of the State of New York, Respondent, v Efrain Hernandez, Appellant.
    Submitted December 7, 2009;
    decided February 23, 2010
   Motion to enlarge the record on appeal herein granted.


text:
    The People of the State of New York, Respondent, v Edwin Rodriguez, Appellant.
    Submitted December 7, 2009;
    decided February 23, 2010
   Motion to enlarge the record on appeal herein granted.


text:
    The People of the State of New York, Respondent, v Gregory Taylor, Appellant.
    Submitted January 25, 2010;
    decided February 23, 2010
   Motion to strike portions of appellant’s brief denied.


text:
    In the Matter of Ignacio Reynoso, Appellant, v Brian Fischer, as Commissioner of Correctional Services, Respondent.
    Decided February 23, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601).


text:
    In the Matter of Richelis S., an Infant. Erie County Department of Social Services, Respondent; Richard S., Appellant.
    Submitted February 1, 2010;
    decided February 23, 2010
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the two-Justice dissent at the Appellate Division is not on a question of law (CPLR 5601 [a]). Motion for a stay dismissed as academic. Motion for poor person relief dismissed as academic.


text:
    Gina Rudden, Appellant, v Francine Bernstein et al., Defendants, and Kaitlin Smiraldo et al., Respondents.
    Submitted January 4, 2010;
    decided February 23, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Serota Brown Court II, LLC, et al., Respondents, v Town of Hempstead et al., Appellants. Town Board of Town of Hempstead, Nonparty Appellant.
    Decided February 23, 2010
   Appeal by the Town of Hempstead, the Board of Appeals of the Town of Hempstead, and the Department of Buildings of the Town of Hempstead, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the May 2009 and July 2009 Appellate Division orders appealed from do not finally determine the proceeding within the meaning of the Constitution. Appeal by the Town Board of the Town of Hempstead, insofar as taken from the Appellate Division order that, among other things, denied its motion to intervene, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution; appeal, insofar as taken from the Appellate Division order affirming the judgment of Supreme Court granting the petition, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the Town Board of the Town of Hempstead is not a party to this proceeding.


text:
    In the Matter of Diane Word, Appellant, v Superintendent of Bedford Hills Correctional Facility et al., Respondents.
    Submitted January 19, 2010;
    decided February 23, 2010
   Motion for reconsideration of this Court’s September 22, 2009 dismissal order denied [see 13 NY3d 793 (2009)].


text:
    [925 NE2d 581, 898 NYS2d 542]
    Ashland Management Incorporated, Respondent, v Altair Investments NA, LLC, et al., Appellants.
    Argued February 11, 2010;
    decided March 25, 2010

      APPEARANCES OF COUNSEL

      Gordon & Haffner, LLP, Harrison (David Gordon of counsel), for appellants.

      Grayson & Associates, Greenwich, Connecticut (Eric D. Grayson of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, without costs, by dismissing the first, second, third, fourth and seventh causes of action to the extent they seek injunctive relief or damages for defendants’ misappropriation of client lists or trade secrets prior to their resignation, and otherwise affirmed. The certified question should be answered in the negative.

The confidentiality agreements executed by defendants did not prohibit them from soliciting plaintiffs clients or contacting its business referrers after their termination of employment. Moreover, plaintiff failed to raise a triable issue of fact as to whether its customer lists constituted a trade secret (see Leo Silfen, Inc. v Cream, 29 NY2d 387 [1972]) and whether defendants improperly used plaintiffs performance data or took any confidential customer information before leaving plaintiff’s employ. But plaintiff did raise questions of fact regarding whether defendants breached their fiduciary duties by using plaintiff’s time and resources to form a new business and promote themselves while still working for plaintiff. An issue of fact also exists as to whether defendants improperly accessed plaintiffs Federal Express account to discover client information after their employment with plaintiff had ceased.

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

Order modified, without costs, in accordance with the memorandum herein and, as so modified, affirmed. Certified question answered in the negative.


text:
    [925 NE2d 581, 898 NYS2d 543]
    Cecilia Teodorescu, Appellant, v Resnick & Binder, P.C., Respondent.
    Argued February 11, 2010;
    decided March 25, 2010

      APPEARANCES OF COUNSEL

      Lawrence B. Lame, Jamaica, and Jonah Grossman for appellant.

      Kelleher & Maragno, LLP, Albany (John J. Kelleher of counsel), for respondent.
   OPINION OF THE COURT

Order reversed, with costs, and defendant’s motion for summary judgment denied. We hold, contrary to the Appellate Division, that plaintiff raised issues of fact regarding whether she could have prevailed on a theory of constructive notice.

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


text:
    [925 NE2d 582, 898 NYS2d 543]
    Anne B. Washington, Appellant, v Barry A. Washington, Respondent.
    Decided March 25, 2010

      APPEARANCES OF COUNSEL

      Amy S. Nord, Valley Stream, for appellant.

      Barry A. Washington, respondent pro se.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the judgment of Supreme Court reinstated.

In this nonjury trial, the parties charted their own course, effectively removing from the case the question whether the trust funds were exhausted and thereby eliminating plaintiff mother’s burden on this issue. The Appellate Division erred in holding that no evidence was adduced as to the means and abilities of the parties to contribute to their children’s college education expenses. Such evidence was adduced, and we conclude as a matter of law that defendant father had sufficient means to contribute to his sons’ college education expenses within the meaning of the parties’ separation agreement. Defendant father’s remaining arguments in support of affirmance are without merit.

Chief Judge Lippman and Judges Ciparick, Grapfeo, Read, Smith, Pigott and Jones concur in memorandum.

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


text:
    [925 NE2d 582, 898 NYS2d 544]
    Ramona Ortiz, Respondent, v City of New York, Appellant, and 240 West 98th Street Associates et al., Respondents.
    Decided March 25, 2010

      APPEARANCES OF COUNSEL

      Michael A. Cardozo, Corporation Counsel, New York City (Deborah A. Brenner of counsel), for appellant.

      Pollack, Pollack, Isaac & De Cicco, New York City (Brian J. Isaac of counsel) for Ramona Ortiz, respondent.

      Flynn, Gibbons & Dowd, New York City (Lawrence A. Doris of counsel), for 240 West 98th Street Associates, LLC and another, respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order, insofar as appealed from, reversed, with costs, defendant City of New York’s motion for summary judgment granted, the complaint and all cross claims against the City of New York dismissed, and certified question answered in the negative. No triable issue of fact exists as to whether the City created a dangerous condition that caused plaintiffs injuries.

Concur: Chief Judge Lippman and Judges Ciparick, Grapfeo, Read, Smith, Pigott and Jones.


text:
    [926 NE2d 231, 899 NYS2d 724]
    Barnan Associates LLC, Respondent, v. 196 Owners Corp., Appellant.
    Argued February 9, 2010;
    decided March 25, 2010

      APPEARANCES OF COUNSEL

      Abrams Garfinkel Margolis Bergson, LLP, New York City (Barry G. Margolis of counsel), for appellant.

      Michael B. Kramer & Associates, New York City Michael B. Kramer, Rubin Jay Ginsberg and Morgan E. Downer of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the order of Supreme Court reinstated.

Plaintiff Barnan Associates LLC is a commercial tenant on the ground floor of a cooperative apartment building owned by defendant 196 Owners Corp., and located at 196 East 75th Street in New York City. In 1979, prior to the building’s cooperative conversion, Barnan entered into a lease agreement with then landlord, nonparty Robert Olnick Associates. The parties agreed that Barnan would pay “Fixed Net Rent” and “Additional Rent based on Increase in Real Estate Taxes,” as a commercial tenant of the building. The lease states in relevant part:

“The Tenant agrees to pay to the Landlord as additional rent during each lease year subsequent to the New York City real estate tax year commencing July 1, 1979 and ending June 30, 1980, Fourteen and one-half (14 1/2%) percent of the dollar amount of any increase in such real estate taxes on the said land, buildings and improvements (of which the demised premises are a part) over and above the ‘base amount of real estate taxes,’ whether such increase in real estate taxes shall be occasioned by an increase in assessed valuation or an increase in tax rate, or both.”

The parties defined the following words:

“ ‘base assessed valuation’ shall be the total fully assessed valuation (made without regard or giving effect to any exemption or abatement) of the parcel of [the subject land] for the New York City real estate tax year commencing July 1, 1979 and ending July [sic] 30, 1980; . . .
“ ‘base tax rate’ shall be the real estate tax for the Borough of Manhattan for the New York City real estate tax year commencing July 1, 1979 and ending June 30, 1980; . . .
“[and] ‘base amount of real estate taxes’ shall be the dollar amount computed by and resulting from the application of the ‘base tax rate’ to the ‘base assessed valuation.’ ”

Accordingly, Barnan has paid 14½% “of the dollar amount of any increase in such real estate taxes” on the premises for the subsequent tax years.

Sometime after the lease was executed, Robert Olnick Associates sponsored the building’s cooperative conversion. As a result of the conversion, 196 Owners Corp., a cooperative corporation, was created. By 1981, the corporation was the building’s owner and successor landlord of the lease. More than a decade later, the State of New York enacted certain tax benefit programs targeting condominium owners and cooperative tenant-shareholders. Since the 1998-1999 tax year, tenant-shareholders in the subject building have availed themselves of certain tax benefit programs, pursuant to Real Property Tax Law §§ 425 and 467-a, which come in the form of tax abatements and exemptions. The City of New York calculates these abatements and exemptions and directs payment from the building’s real estate tax assessment, which the corporation pays to tenant-shareholders directly.

In 2005, Barnan became aware that, since the 1998-1999 tax year, its yearly 14½% tax share of the building’s billable taxes included the tenant-shareholders’ tax abatements and exemptions. Barnan has since claimed that the corporation overcharged it in tax rents as the corporation failed to deduct the tax abatements and exemptions paid to the tenant-shareholders from its proportionate tax liability. Barnan demanded reimbursement, and the corporation refused. In 2006, Barnan commenced this action against the corporation for, among other things, reimbursement of the alleged overcharges. Barnan contends that the lease between the parties entitles it to deduct from its tax rents the tax abatements and exemptions that the corporation pays to the individual tenant-shareholders.

Supreme Court granted defendant’s motion for summary judgment dismissing the complaint. It found that the tax escalation clause of the lease agreement was ambiguous as to whether tax abatements and exemptions should be excluded from the amount of real estate taxes assessed against the property and relied upon “the course of conduct of the parties since the defendant acquired title to the Building” (15 Misc 3d 1133[A], 2007 NY Slip Op 50962[U], *4 [2007]). The Appellate Division unanimously modified, on the law, by granting plaintiffs motion for summary relief, directing judgment in favor of plaintiff in the sum of $56,675.77, and denying defendant’s cross motion (Barnan Assoc. v 196 Owners Corp., 56 AD3d 309 [2008]). The court rejected Supreme Court’s finding of ambiguity and application of the voluntary payment doctrine, and concluded that the result below was contrary to cases involving tax escalation clauses (id. at 311).

The terms of the lease determine whether Barnan is entitled to deduct the relevant tax abatements and exemptions from its tax rents (Raleigh Assoc. v Henry, 302 NY 467, 474 [1951]; see also Fairfax Co. v Whelan Drug Co., 105 AD2d 647 [1st Dept 1984]; Park Sq. Garage v New York Univ., 27 AD2d 460 [1st Dept 1967]). Here, the tax escalation clause unambiguously states that the additional tax charged to Barnan applies to “any increase in such real estate taxes” on the land greater than the “base amount of real estate taxes.” In addition, the base amount is determined with reference to the “base assessed valuation”—a term that the lease requires be calculated “without regard or giving effect to any exemption or abatement.” Thus it would be illogical to give effect to exemptions and abatements in calculating the “increase in such real estate taxes” and the resulting escalation. Moreover, in this case, the tax benefit programs did not decrease the corporation’s tax liability (cf. Fairfax Co. v Whelan Drug Co., 105 AD2d 647 [1984] [the tenant was not required to pay additional taxes to the landlord pursuant to the tax escalation clause because the actual property tax reduced by more than 50%]). Accordingly, the corporation properly increased Barnan’s rent pursuant to the tax escalation clause by 141/2% of the increase in real estate taxes, including the amount the corporation was required to pay to the eligible tenant-shareholders pursuant to the tax benefit programs.

Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur in memorandum; Chief Judge Lippman taking no part.

Order reversed, etc.


text:
    In the Matter of Oscar Cintron, Appellant, v Judith A. Calogero, as Commissioner of the Division of Housing and Community Renewal of the State of New York, Respondent.
    Submitted March 22, 2010;
    decided March 25, 2010
   Motion by Fifth Avenue Committee et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    In the Matter of Daniel H., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Submitted March 8, 2010;
    decided March 25, 2010
   Motion for poor person relief granted.


text:
    Zana Dobroshi, on Behalf of Herself and All Others Similarly Situated, Appellant, v Bank of America, N.A., Respondent.
    Submitted January 4, 2010;
    decided March 25, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Donald Gimeno, Respondent, v American Signature, Inc., Doing Business as Value-City Furniture, et al., Respondents, and Melco Construction Services, Inc., et al., Appellants, et al., Defendant.
    Submitted January 11, 2010;
    decided March 25, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Kevin Glassman, Respondent, v ProHealth Ambulatory Surgery Center, Inc., et al., Appellants.
    Submitted March 22, 2010;
    decided March 25, 2010
   Motion by Greater New York Hospital Association for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Paul Kuhne, Appellant, v Cohen & Slamowitz, LLP, et al., Respondents.
    Decided March 25, 2010
   Pursuant to the March 4, 2010 order of the United States Court of Appeals for the Second Circuit withdrawing its certification of questions accepted by the Court of Appeals on September 22, 2009, certified questions marked withdrawn.

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


text:
    James D. Lee, Respondent, v Astoria Generating Company, L.P, et al., Appellants/Third-Party Plaintiffs-Appellants. Elliott Turbomachinery Co., Inc., et al., Third-Party Defendants-Appellants.
    Submitted January 19, 2010;
    decided March 25, 2010
   Motion for reargument denied with $100 costs and necessary reproduction disbursements [see 13 NY3d 382 (2009)].


text:
    The People of the State of New York, Respondent, v Lance Cain, Appellant.
    Submitted February 22, 2010;
    decided March 25, 2010
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 dismissed as untimely.


text:
    The People of the State of New York, Respondent, v William Campbell, Appellant.
    Submitted March 8, 2010;
    decided March 25, 2010
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Troy Cartwright, Appellant.
    Submitted March 22, 2010;
    decided March 25, 2010
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Appellant, v Edgar Correa, Respondent.
    Submitted March 15, 2010;
    decided March 25, 2010
   Motion for a stay denied.

Chief Judge Lippman taking no part.


text:
    The People of the State of New York, Appellant, v Edgar Correa, Respondent.
    Submitted March 22, 2010;
    decided March 25, 2010
   Motion by Chief Administrative Judge Ann Pfau et al. for leave to appear amici curiae on the appeal herein granted.

Chief Judge Lippman taking no part.


text:
    The People of the State of New York, Respondent, v Elijah Cummings, Appellant.
    Submitted March 1, 2010;
    decided March 25, 2010
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Robert Kelly, Appellant.
    Submitted March 22, 2010;
    decided March 25, 2010
   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 Isham Moore, Appellant.
    Submitted March 22, 2010;
    decided March 25, 2010
   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 Shahid Muhammad, Appellant.
    Submitted March 22, 2010;
    decided March 25, 2010
   Motion for assignment of counsel granted only to the extent that Thomas J. Eoannou, Esq., 484 Delaware Ave., Buffalo, New York 14202 is assigned without fee to represent appellant on the appeal herein. Counsel may, however, apply for reimbursement of necessary disbursements incurred in connection with the assignment.


text:
    The People of the State of New York, Respondent, v William Porto, Appellant.
    Submitted March 8, 2010;
    decided March 25, 2010
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Gilbert Rivera, Appellant.
    Submitted March 8, 2010;
    decided March 25, 2010
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Andre Stewart, Appellant.
    Submitted March 22, 2010;
    decided March 25, 2010
   Motion for assignment of counsel granted and Steven Banks, Esq., the Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Calvin Tyrell, Appellant.
    Submitted March 22, 2010;
    decided March 25, 2010
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Appellant, v Albeiro Valencia, Respondent.
    Submitted March 1, 2010;
    decided March 25, 2010
   Motion for assignment of counsel granted and Marianne Karas, Esq., PO Box 277, Armonk, New York 10504 assigned as counsel to the respondent on the appeal herein.


text:
    The People of the State of New York, Respondent, v Jair Williams, Appellant.
    Submitted March 1, 2010;
    decided March 25, 2010
   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 ex rel. Ronald Jackson, Appellant, v Brian Fischer, Commissioner, Department of Correctional Services, Respondent.
    Submitted January 19, 2010;
    decided March 25, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Joseph D. Raymond, Sr., Appellant, v Kevin E. Walsh, Sheriff, County of Onondaga, et al., Respondents.
    Submitted December 7, 2009;
    decided March 25, 2010
   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:
    Dale R. San Marco et al., Appellants, v Village/Town of Mount Kisco, Respondent.
    Submitted March 22, 2010;
    decided March 25, 2010
   Motion by Defense Association 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:
    Dominika Zakrzewska, Respondent, v The New School, Appellant, et al., Defendant.
    Submitted March 22, 2010;
    decided March 25, 2010
   Motion by New York University et al. to join as amici curiae in the brief submitted by Memorial Sloan-Kettering Cancer Center et al. granted.


text:
    [925 NE2d 926, 899 NYS2d 123]
    Awards.com, LLC, et al., Appellants, v Kinko’s, Inc., et al., Respondents, et al., Defendant.
    Argued February 10, 2010;
    decided March 30, 2010

      APPEARANCES OF COUNSEL

      Chadbourne & Parke, LLP, New York City (Alan I. Raylesberg, George Bundy Smith, Thomas E. Butler and Eric Twiste of counsel), and Berg & Androphy (David H. Berg and Christopher Gadoury of the Texas bar, admitted pro hac vice of counsel) for appellants.

      Terrence O. Reed of the Tennessee bar, admitted pro hac vice, and Connie Lewis Lensing for respondents.
   OPINION OF THE COURT

Memorandum.

The judgment of Supreme Court appealed from and the order of the Appellate Division brought up for review should be affirmed with costs.

Under the circumstances of this case, defendant Kinko’s, Inc. was justified in terminating its contract with plaintiff Inspire Someone, LLC. The failure of Inspire Someone to pay its monthly rent promptly was a material breach (see Madison Ave. Leasehold, LLC v Madison Bentley Assoc. LLC, 8 NY3d 59, 65 [2006]; Fifty States Mgt. Corp. v Pioneer Auto Parks, 46 NY2d 573, 578 [1979]); the contract contained no provision for a grace period, and no requirement that Kinko’s give notice of a breach and an opportunity to cure it; and Kinko’s did not waive its right to terminate.

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

Judgment of Supreme Court appealed from and order of the Appellate Division brought up for review affirmed, with costs, in a memorandum.


text:
    In the Matter of Gerard Blasich, Appellant, v New York State Board of Parole, Respondent.
    Submitted January 25, 2010;
    decided March 30, 2010
   Motion for leave to appeal dismissed upon the ground that the issues presented have become moot.


text:
    In the Matter of the Claim of Jennifer Domenico, Appellant, v United Way et al., Respondents. Workers’ Compensation Board, Respondent.
    Submitted February 8, 2010;
    decided March 30, 2010
   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:
    Shawn Green, Appellant, v State of New York, Respondent.
    Submitted February 1, 2010;
    decided March 30, 2010
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the action within the meaning of the Constitution.


text:
    Robert Dillard Jones, Appellant, v Naziemul Safi et al., Defendants, and Lazarowitz & Manganillo, P.C., et al., Respondents.
    Submitted February 1, 2010;
    decided March 30, 2010
   Motion for reargument of motion for leave to appeal denied [see 13 NY3d 901 (2009)].


text:
    Jean Kramer et al., Appellants, v SBR & C, Doing Business as Vanderbilt at South Beach, et al., Respondents.
    Submitted February 8, 2010;
    decided March 30, 2010
   Motion for reargument of motion for leave to appeal denied with $100 costs and necessary reproduction disbursements [see 13 NY3d 713 (2009)].


text:
    The People of the State of New York, Appellant, v Thomas Edwards, Jr., Respondent.
    Submitted March 15, 2010;
    decided March 30, 2010
   Motion for reargument and/or reconsideration denied. Motion for a stay dismissed as academic [see 14 NY3d 741 (2010)].


text:
    The People of the State of New York, Respondent, v Ramon Ramos, Appellant.
    Submitted February 8, 2010;
    decided March 30, 2010
   Motion for reargument denied [see 13 NY3d 881 (2009)].


text:
    The People of the State of New York ex rel. Howard Glenn Blake, Alleged to be Larry Wayne Barnett, Appellant, v George E. Pataki, as Governor of the State of New York, Respondent.
    Submitted February 22, 2010;
    decided March 30, 2010
   Motion for renewal and reargument denied [see 13 NY3d 912 (2010)].


text:
    The People of the State of New York ex rel. Robert C. Hinton, Jr., Appellant, v Harold Graham, Superintendent, Auburn Correctional Facility, Respondent.
    Submitted February 16, 2010;
    decided March 30, 2010
   Motion for reargument of motion for leave to appeal denied. Motion for poor person relief dismissed as academic [see 13 NY3d 934 (2010)].

Judge Pigott taking no part.


text:
    Randy Ratajczak, as Administrator of the Estate of Mary Ratajczak, Respondent, v Mahmood Yoonessi, M.D., et al., Appellants. (And a Third-Party Action.)
    Submitted February 22, 2010;
    decided March 30, 2010
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution. Motion to disqualify counsel etc. denied.


text:
    In the Matter of the Estate of Joseph Singer, Deceased. Vivian Singer, Respondent; Alexander Singer, Appellant.
    Submitted February 8, 2010;
    decided March 30, 2010
   Motion for reargument denied with $100 costs and necessary reproduction disbursements [see 13 NY3d 447 (2009)].


text:
    Teachers’ Retirement System of Louisiana et al., Derivatively on Behalf of Nominal Defendant American International Group, Inc., Appellants, v PricewaterhouseCoopers LLP, Respondent.
    Decided March 30, 2010
   Certification of a question by the Supreme Court of the State of Delaware, pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), accepted and the issues presented are to be considered after briefing and argument.

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


text:
    In the Matter of Susan Wiley, Respondent, v Roger Dawson, Appellant.
    Decided March 30, 2010
   Appeal, insofar as taken from the December 1, 2009 Appellate Division order, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved; appeal, insofar as taken from the January 5, 2010 Appellate Division order, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution.


text:
    [926 NE2d 253, 899 NYS2d 746]
    The People of the State of New York, Respondent, v Eric D. Carr, Appellant.
    Argued February 17, 2010;
    decided April 1, 2010
    APPEARANCES OF COUNSEL

      Legal Aid Bureau of Buffalo, Inc., Buffalo (Nicholas T. Texido, David C. Schopp and Barbara J. Davies of counsel), for appellant.

      Frank A. Sedita, III, District Attorney, Buffalo (Donna A. Milling of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

A party seeking a missing witness instruction has the burden of making the request “as soon as practicable” (People v Gonzalez, 68 NY2d 424, 428 [1986]). Whether such a request is timely is a question to be decided by the trial court in its discretion, taking into account both when the requesting party knew or should have known that a basis for a missing witness charge existed, and any prejudice that may have been suffered by the other party as a result of the delay.

Here, defendant knew at the outset of the trial that the People did not intend to call three of the victim’s relatives who were present at the time of the alleged crime. Supreme Court did not abuse its discretion in holding that defendant’s request for a missing witness charge, made more than a week after the People provided their witness list, and after the People had rested their case-in-chief, came too late.

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

Order affirmed in a memorandum.


text:
    [926 NE2d 255, 899 NYS2d 751]
    American Transit Insurance Company, Appellant, v Arthur Brown, Respondent, et al., Defendant.
    Decided April 1, 2010

      APPEARANCES OF COUNSEL

      Marjorie E. Bornes, New York City, for appellant.

      Blank & Star, PLLC, Brooklyn (Scott Star and Helene E. Blank of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, with costs, defendant Brown’s motion for summary judgment denied, plaintiffs motion for summary judgment granted and judgment granted declaring that plaintiff’s disclaimer of coverage was proper, that it had no obligation to defend or indemnify its insured in the subject underlying action and that it is not responsible for payment of any portion of the judgment rendered therein. Defendant Brown failed to provide a valid excuse for his failure to use reasonable diligence in providing plaintiff insurer with notice of the underlying personal injury action.

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


text:
    Bender, Jenson & Silverstein, LLP, Respondent, v Margarita T. Walter, Appellant.
    Submitted January 25, 2010;
    decided April 1, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for poor person relief etc. dismissed as academic.


text:
    In the Matter of Mark Freedman, Appellant, v Regan Horike, Respondent. (And Another Related Proceeding.)
    Submitted January 19, 2010;
    decided April 1, 2010
   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 a motion to vacate, 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:
    In the Matter of Gabriella R., a Neglected Child. Broome County Department of Social Services, Respondent; Mindyn S., Appellant, et al., Respondent.
    Submitted February 8, 2010;
    decided April 1, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v Victor A. DePonceau, Also Known as John Doe, Appellant.
    Submitted January 19, 2010;
    decided April 1, 2010
   On the Court’s own motion, appeal dismissed, without costs, 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). Motion for leave to appeal dismissed upon the ground that it does not lie from the order of the Appellate Division entered in this criminal action (see NY Const, art VI, § 3 [b]; CPLR 5602; CPL 450.90). Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York, Respondent, v Marquise Murphy, Appellant.
    Submitted January 19, 2010;
    decided April 1, 2010
   Motion for leave to appeal dismissed upon the ground that defendant is not available to obey the mandate of the Court of Appeals.


text:
    In the Matter of Reconstruction Home and Health Care Center, Inc., Appellant, v Richard F. Daines, as Commissioner of Health, et al., Respondents.
    Submitted February 1, 2010;
    decided April 1, 2010
   Motion by New York State Health Facilities Association 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:
    Sapphire Simmons, an Infant, by Her Mother and Natural Guardian, Rosemary Simmons, et al., Appellants, v Vito Sacchetti et al., Respondents, et al., Defendant.
    Submitted January 19, 2010;
    decided April 1, 2010
   Motion by Met Council, Inc., et al. for leave to file a brief amici curiae on the motion for leave to appeal herein granted and the brief is accepted as filed, and for leave to file a brief on the appeal herein granted, three copies of the brief to be served and an original and 24 copies filed within 30 days.


text:
    [926 NE2d 257, 899 NYS2d 753]
    In the Matter of Nora S. Anderson.
    Decided April 5, 2010
   OPINION OF THE COURT

On the Court’s own motion, it is determined that the suspension of Honorable Nora S. Anderson, from the office of Surrogate, New York County, imposed by order of this Court dated December 29, 2008 and effective January 1, 2009 (11 NY3d 894 [2008]), is hereby terminated.

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