text:
    In the Matter of Hailey ZZ., a Child Alleged to be Permanently Neglected. Tompkins County Department of Social Services, Respondent; Ricky ZZ., Appellant.
    Submitted March 12, 2012;
    decided March 22, 2012
    Reported below, 85 AD3d 1265.
   Motion by Monroe County Department of Social Services 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 19 copies filed within seven days.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Hailey ZZ., a Child Alleged to be Permanently Neglected. Tompkins County Department of Social Services, Respondent; Ricky ZZ., Appellant.
    Submitted March 19, 2012;
    decided March 22, 2012
    Reported below, 85 AD3d 1265.
   Motion by Saratoga County Department of Social Services 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 19 copies filed within seven days.


text:
    In the Matter of Ithaca City School District, Appellant, v New York State Division of Human Rights et al., Respondents.
    Submitted March 19, 2012;
    decided March 22, 2012
    Reported below, 87 AD3d 268.
   Motion by Advocates for Children of New York, Inc. 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 19 copies filed within seven days.


text:
    In the Matter of Ithaca City School District, Appellant, v New York State Division of Human Rights et al., Respondents.
    Submitted March 19, 2012;
    decided March 22, 2012
    Reported below, 87 AD3d 268.
   Motion by New York State School Boards Association, 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 19 copies filed within seven days.


text:
    In the Matter of the Arbitration between Johnson City Professional Firefighters Local 921 et al., Respondents, and Village of Johnson City, Appellant. (Proceeding No. 1.) In the Matter of the Arbitration between Village of Johnson City, Appellant, and Johnson City Firefighters Association, Local 921 IAFF, Respondent. (Proceeding No. 2.)
    Submitted January 3, 2012;
    decided March 22, 2012
    Reported below, 72 AD3d 1235.
   Motion for reargument denied with $100 costs and necessary reproduction disbursements [see 18 NY3d 32 (2011)].


text:
    William I. Koch, Appellant, v Acker, Merrall & Condit Company, Respondent.
    Submitted February 27, 2012;
    decided March 22, 2012
    Reported below, 73 AD3d 661.
   Motion by Pacific Legal Foundation for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.

Judge Smith taking no part.


text:
    The People of the State of New York, Respondent, v Timothy Bush, Appellant.
    Submitted February 21, 2012;
    decided March 22, 2012
    Reported below, 2011 NY Slip Op 92010(U).
   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 Eugene G. LaPierre, Appellant.
    Submitted February 27, 2012;
    decided March 22, 2012
    Reported below, 86 AD3d 619.
   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 Terrance Monk, Appellant.
    Submitted December 5, 2011;
    decided March 22, 2012
    Reported below, 83 AD3d 35.
   Motion for assignment of counsel granted and Scott B. Tulman, Esq., 369 Lexington Avenue, 15th Floor, New York, NY 10017 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Terrance Monk, Appellant.
    Submitted December 19, 2011;
    decided March 22, 2012
    Reported below, 83 AD3d 35.
   Motion to vacate this Court’s November 30, 2011 dismissal order granted [see 17 NY3d 950 (2011)].


text:
    The People of the State of New York, Appellant, v Jeanne M. Vandover, Respondent.
    Submitted March 19, 2012;
    decided March 22, 2012
    Reported below, 31 Misc 3d 131(A).
   On the Court’s own motion, Matthew S. Lerner, Esq. granted leave to appear as amicus curiae on the appeal herein.


text:
    The People of the State of New York, Appellant, v Damien Warren, Respondent.
    Submitted February 21, 2012;
    decided March 22, 2012
    Reported below, 87 AD3d 36.
   Motion for assignment of counsel granted and Michael L. D’Amico, Esq., 484 Delaware Avenue, Buffalo, New York 14202 assigned as counsel to the respondent on the appeal herein.


text:
    In the Matter of Todd M. Smith, Respondent, v James C. Tormey, District Administrative Judge, Fifth Judicial District, Respondent, and County of Onondaga et al., Appellants.
    Submitted March 19, 2012;
    decided March 22, 2012
    Reported below, 83 AD3d 1425.
   Motion by New York State Association of Criminal Defense Lawyers 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 19 copies filed within seven days.

Chief Judge Lippman taking no part.


text:
    In the Matter of Town of Wallkill, Respondent, v Civil Service Employees Association, Inc. (Local 1000, AFSCME, AFL-CIO, Town of Wallkill Police Department Unit, Orange County Local 836), et al., Appellants.
    Submitted March 5, 2012;
    decided March 22, 2012
    Reported below, 84 AD3d 968.
   Motion by New York State Public Employment Relations Board for leave to orally argue as amicus curiae on the appeal herein denied.


text:
    [967 NE2d 675, 944 NYS2d 452]
    William I. Koch, Appellant, v Acker, Merrall & Condit Company, Respondent.
    Decided March 27, 2012

      APPEARANCES OF COUNSEL

      Hunton & Williams LLP, New York City (Joseph J. Saltarelli, Shawn Patrick Regan and Jennifer L. Cummins of counsel), and Irell & Manella LLP, Newport Beach, California (Bruce A. Wessel, John Hueston and Moez M. Kaba of counsel), for appellant.

      Meister Seelig & Fein LLP, New York City (Stephen B. Meister, Thomas L. Friedman and Remy J. Stocks of counsel), for respondent.

      Theodore Hadzi-Antich and Deborah J. La Fetra, Sacramento, California, for Pacific Legal Foundation, amicus curiae.
   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 reversed, with costs, and defendant’s motion to dismiss plaintiffs General Business Law §§ 349 and 350 causes of action denied. To successfully assert a claim under General Business Law § 349 (h) or § 350, “a plaintiff must allege that a defendant has engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff suffered injury as a result of the allegedly deceptive act or practice” (City of New York v Smokes-Spirits.Com, Inc., 12 NY3d 616, 621 [2009]; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 324 n 1 [2002]). Here, plaintiff sufficiently pleaded such causes of action, and the disclaimers set forth in defendant’s catalogs “do not . . . bar [plaintiffs] claims for deceptive trade practices at this stage of the proceedings, as they do not establish a defense as a matter of law” (Goshen, 98 NY2d at 326; see Gaidon v Guardian Life Ins. Co. of Am., 94 NY2d 330, 345 [1999]).

To the extent that the Appellate Division order imposed a reliance requirement on General Business Law §§ 349 and 350 claims, it was error. Justifiable reliance by the plaintiff is not an element of the statutory claim (see Small v Lorillard Tobacco Co., 94 NY2d 43, 55 [1999], citing Oswego Laborers’ Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20, 26 [1995]).

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

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), judgment appealed from and order of the Appellate Division brought up for review reversed, etc.


text:
    Bella B. Aloyts et al., Respondents, v 601 Tenant’s Corp., Respondent, and Jeff Berger, Appellant.
    Submitted November 28, 2011;
    decided March 27, 2012
    Reported below, 84 AD3d 1287.
   Motion for leave to appeal dismissed for failure to demonstrate timeliness as required by Rules of the Court of Appeals (22 NYCRR) § 500.22 (b) (2).


text:
    In the Matter of David Burr, Appellant, v Timothy B. Howard, Sheriff of Erie County, Respondent.
    Submitted January 17, 2012;
    decided March 27, 2012
    Reported below, 2011 NY Slip Op 92347CU).
   Motion for leave to appeal dismissed upon the ground that the December 2011 Appellate Division order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of David Burr, Appellant, v Timothy B. Howard, Sheriff of Erie County, Respondent.
    Submitted March 5, 2012;
    decided March 27, 2012
    Reported below, 2012 NY Slip Op 60911(U).
   Motion for leave to appeal dismissed upon the ground that the January 2012 Appellate Division order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Marilyn C. DeCrescente, Respondent, v Catholic Charities of the Diocese of Albany et al., Defendants and Third-Party Plaintiffs-Appellants. County of Washington et al., Third-Party Defendants-Respondents, et al., Third-Party Defendant.
    Submitted December 12, 2011;
    decided March 27, 2012
    Reported below, 89 AD3d 1272.
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order affirming so much of the Supreme Court order as dismissed the third-party complaint as against Fort Edward Victorian, Inc. and County of Washington, denied; motion for leave to appeal otherwise dismissed upon the ground that the remaining portions of the Appellate Division order sought to be appealed from do not finally determine the action within the meaning of the Constitution.


text:
    Sam Futersak, Appellant, v Sheldon Perl, Also Known as Shloime Perl, et al., Respondents.
    Submitted January 17, 2012;
    decided March 27, 2012
    Reported below, 84 AD3d 1309; 2011 NY Slip Op 89601(U).
   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:
    Michael Grucci, Appellant, v Christine Grucci, Respondent.
    Submitted January 23, 2012;
    decided March 27, 2012
    Reported below, 81 AD3d 776.
   Motion to strike appellant’s appendix denied.


text:
    Michael Grucci, Appellant, v Christine Grucci, Respondent.
    Submitted February 6, 2012;
    decided March 27, 2012
    Reported below, 81 AD3d 776.
   Motion to vacate this Court’s January 24, 2012 preclusion order granted.


text:
    James Knapp et al., Respondents-Appellants, v James R. Hughes et al., Appellants-Respondents.
    Submitted January 30, 2012;
    decided March 27, 2012
    Reported below, 25 AD3d 886.
   Motion for reargument of motion for leave to appeal denied [see 18 NY3d 827 (2011)].


text:
    L&L Associates Holding Corp., Respondent, v Joseph A.F. Sadowski, Appellant, et al., Defendants.
    Submitted January 30, 2012;
    decided March 27, 2012
    Reported below, 2011 NY Slip Op 84844(11).
   Motion for reargument etc. denied [see 18 NY3d 854 (2011)]. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Raymond C. Miller Sr., Appellant, v Patricia A. Miller, Respondent.
    Submitted January 17, 2012;
    decided March 27, 2012
    Reported below, 90 AD3d 1185.
   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:
    Javondi Pender, Appellant, v Lasalle Bus Service, Inc., Respondent.
    Submitted January 30, 2012;
    decided March 27, 2012
    Reported below, 2011 NY Slip Op 83123(U).
   Motion for reargument of motion for leave to appeal denied [see 18 NY3d 838 (2011)].


text:
    The People of the State of New York, Respondent, v Steven Lashway, Appellant.
    Submitted January 23, 2012;
    decided March 27, 2012
    Reported below, 90 AD3d 1178.
   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 Tyrone Watson, Appellant.
    Submitted February 21, 2012;
    decided March 27, 2012
    Reported below, 82 AD3d 1276.
   Motion to vacate this Court’s February 8, 2012 dismissal order granted (see 18 NY3d 921 [2012]).


text:
    The People of the State of New York ex rel. A. James Bell, on Behalf of Okechukwu Okoronkwo, Appellant, v Commissioner of the New York City Department of Corrections et al., Respondents.
    Submitted January 30, 2012;
    decided March 27, 2012
    Reported below, 89 AD3d 1046.
   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:
    Christopher Earl Strunk, Plaintiff, v David Paterson et al., Respondents. H. William Van Allen, Nonparty Appellant.
    Decided March 27, 2012
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that it does not lie (see CPLR 5601).


text:
    In the Matter of Town of Wallkill, Respondent, v Civil Service Employees Association, Inc. (Local 1000, AFSCME, AFL-CIO, Town of Wallkill Police Department Unit, Orange County Local 836), et al., Appellants.
    Submitted March 19, 2012;
    decided March 27, 2012
    Reported below, 84 AD3d 968.
   Motion by New York State Law Enforcement Officers Union, Council 82, AFSCME, AFL-CIO 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 19 copies filed within seven days.


text:
    Union Street Tower, LLC, Respondent, v Eric Richmond et al., Appellants.
    Submitted January 9, 2012;
    decided March 27, 2012
    Reported below, 84 AD3d 784.
   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:
    [967 NE2d 694, 944 NYS2d 469]
    Germelia Joseph, Respondent, v George Athanasopoulos et al., Defendants, and HDMJ Restaurant, Inc., Appellant.
    Submitted January 30, 2012;
    decided March 29, 2012
    APPEARANCES OF COUNSEL

      Law Offices of David S. Feather, Garden City (David S. Feather of counsel), for appellant.

      Germelia Joseph, pro se, and Stephen N Preziosi, New York City, for Germelia Joseph, respondent.
   OPINION OF THE COURT

Memorandum.

The motion by counsel for HDMJ Restaurant, Inc. for permission to withdraw from representation of that party in this Court should be denied. On the Court’s own motion, reconsideration is given to our September 15, 2011 order accepting certification of a question by the United States Court of Appeals for the Second Circuit (see 17 NY3d 848 [2011]), and, upon reconsideration, certification by the United States Court of Appeals for the Second Circuit, pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), should be declined.

In light of appellant HDMJ’s unwillingness to participate in this Court on the certified question or to further prosecute the appeal in the Second Circuit, as evidenced by its motion to withdraw the appeal in that court, and the apparent disintegration of the attorney-client relationship between appellant and its counsel, any further consideration of this matter by this Court is not warranted. Therefore, after reconsidering our prior order, we decline to accept the certified question.

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

Motion by counsel for HDMJ Restaurant, Inc. for permission to withdraw from representation of that party in this Court denied; on the Court’s own motion, reconsideration given to its September 15, 2011 order accepting certification of a question by the United States Court of Appeals for the Second Circuit (see 17 NY3d 848 [2011]), and, upon reconsideration, certification of question by the United States Court of Appeals for the Second Circuit, pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), declined, in a memorandum.


author: Pigott, J. (dissenting).

text:
    [967 NE2d 695, 944 NYS2d 470]
    The People of the State of New York, Respondent, v Tecoy Ingram, Appellant.
    Argued February 9, 2012;
    decided March 29, 2012

      APPEARANCES OF COUNSEL

      Mitchell Goris Stokes & O’Sullivan, LLP, Cazenovia (Stewart F. Hancock, Jr., of counsel), and Hiscock Legal Aid Society, Syracuse (Philip Rothschild and Piotr Banasiak of counsel), for appellant.

      William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell and Victoria M. White of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, and the matter remitted to Supreme Court for further proceedings in accordance with this memorandum.

CPL 470.15 (1) precludes the Appellate Division from reviewing an issue that was either decided in an appellant’s favor or was not decided by the trial court (see People v Concepcion, 17 NY3d 192 [2011]; People v LaFontaine, 92 NY2d 470 [1998]). In an appeal from an Appellate Division affirmance, CPL 470.35 (1) grants us no broader review power than that possessed by the Appellate Division. Here, without addressing the validity of Supreme Court’s rationale, the Appellate Division resolved defendant’s suppression application on a theory not reached by the suppression court.

Pigott, J. (dissenting).

For the reasons that Judge Smith stated in his dissent in People v Concepcion (17 NY3d 192, 201-207 [2011]), I remain convinced that People v LaFontaine (92 NY2d 470 [1998]) should be overruled. The majority thinks differently, and I would be constrained to accept their view of this case, except that LaFontaine clearly does not apply here.

In LaFontaine, the trial court and Appellate Division found contrary rationales for denying a suppression motion. The trial court concluded that New Jersey police officers were authorized to execute a federal arrest warrant in New York, and explicitly rejected the rationale that the New Jersey police effected an authorized citizen’s arrest. However, the Appellate Division accepted the citizen’s arrest ground for denying suppression, thus deciding the appeal on an issue on which the defendant had prevailed. Similarly, in Concepcion, the trial court denied suppression to defendant on “inevitable discovery” grounds, and expressly rejected the alternative rationale of “consent,” while the Appellate Division denied suppression on that very basis.

In both LaFontaine and Concepcion, the Appellate Division upheld a denial of suppression on a ground that the trial court had “explicitly rejected” (LaFontaine, 92 NY2d at 473; see also Concepcion, 17 NY3d at 196 [Appellate Division upheld denial of suppression on a basis that Supreme Court had “squarely rejected”]). Because the ground upon which the Appellate Division affirmed had previously been decided in appellant’s favor, we held that the Appellate Division should not have reached that issue.

Here, on the other hand, the trial court ruled that both the police officer’s initial request for defendant’s name and his inquiry after he realized that defendant had given him a false name were permissible under the first level of De Bour police intrusion, “[t]he minimal intrusion of approaching to request information” (People v De Bour, 40 NY2d 210, 223 [1976]), while the Appellate Division ruled that the initial request for defendant’s name was permissible under the first level of De Bour, but that the officer’s second inquiry was justified by a “founded suspicion that criminal activity is afoot” (De Bour, 40 NY2d at 223), the second level of De Bour.

What distinguishes this case from LaFontaine and Concepcion is that the trial court did not reach the rationale of the Appellate Division that the police officer had founded suspicion of criminal activity. Far from deciding the issue in defendant’s favor, the trial court, insofar as it was of the view that the officer’s second inquiry did not rise to the second level of De Bour, committed an error that if anything “adversely affected the appellant” (CPL 470.15 [1]).

The result today is that the case will be remitted to the trial court, which will no doubt read the Appellate Division’s decision and deny suppression on De Bour second-level grounds, instead of first-level grounds. This is a pointless exercise.

In my view the Appellate Division’s ruling here is consistent with CPL 470.15 (1), and I would reach the merits. Because I believe that defendant’s arguments on appeal either lack merit or are unpreserved for our review, I would affirm the order of the Appellate Division.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read and Jones concur in memorandum; Judge Pigott dissents and votes to affirm in an opinion in which Judge Smith concurs.

Order reversed, etc.


text:
    Kenzie Godfrey, Appellant, v G.E. Capital Auto Lease, Inc., Respondent, et al., Defendants.
    Submitted December 27, 2011;
    decided March 29, 2012
    Reported below, 89 AD3d 471.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (see Cuadrado v New York City Tr. Auth., 65 AD3d 434 [2009], lv dismissed 14 NY3d 748 [2010]).

Judge Read taking no part.


text:
    Great American Insurance Companies et al., Plaintiffs, v Bearcat Financial Services, Inc., et al., Defendants. Patrick Hayes, Third-Party Plaintiff-Appellant, v Dresdner, Kleinwort, Wasserstein Services, LLC, Third-Party Defendant-Respondent. Peter A. Hurwitz, Esq., Nonparty Appellant.
    Submitted February 6, 2012;
    decided March 29, 2012
    Reported below, 90 AD3d 533.
   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:
    Yaakov Licci, a Minor, by His Father and Natural Guardian, Elihav Licci, and by His Mother and Natural Guardian, Yehudit Licci, et al., Appellants, v Lebanese Canadian Bank, SAL, et al., Respondents.
    Decided March 29, 2012

      See 673 F3d 50.
   Certification of questions by the United States Court of Appeals for the Second Circuit, pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), accepted and the issues presented are to be considered after briefing and argument.

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


text:
    Nella Manko, Appellant, v Aetna Health, Inc., et al., Respondents.
    Decided March 29, 2012
    Reported below, 2011 NY Slip Op 79142(U).
   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.


text:
    Nella Manko, Appellant, v Lenox Hill Hospital, Respondent.
    Decided March 29, 2012
    Reported below, 2011 NY Slip Op 81074(U).
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that it does not lie (see CPLR 5511, 5601).


text:
    Marshall Investments Corporation et al., Appellants, v Harrah’s Operating Company, Inc., as Successor to Caesar’s Entertainment Inc., Formerly Known as Park Place Entertainment Corporation, et al., Respondents.
    Submitted January 3, 2012;
    decided March 29, 2012
    Reported below, 82 AD3d 515.
   Motion for reargument of motion for leave to appeal denied [see 17 NY3d 949 (2011)]. The parties’ stipulation, being without prejudice, did not finally determine the second cause of action for purposes of this Court’s jurisdiction.


text:
    In the Matter of Edward Murphy et al., Respondents-Appellants, v United States Dredging Corporation, Appellant-Respondent, et al., Respondents.
    Submitted January 3, 2012;
    decided March 29, 2012
    Reported below, 74 AD3d 815.
   Motion by appellant-respondent for leave to appeal denied. Motion by respondents-appellants for leave to appeal dismissed upon the ground that simultaneous appeals do not lie to both the Appellate Division and the Court of Appeals (see Parker v Rogerson, 35 NY2d 751, 753 [1974]).


text:
    Rose Group Park Avenue LLC et al., Appellants, v New York State Liquor Authority, Respondent. The Preservation Coalition et al., Intervenors-Respondents.
    Submitted February 27, 2012;
    decided March 29, 2012
    Reported below, 93 AD3d 1.
   Motion for leave to appeal denied with $100 costs and necessary reproduction disbursements. Motion for a stay dismissed as academic.


text:
    Daniel Singer, Appellant, v Casey Krul, Respondent.
    Submitted February 6, 2012;
    decided March 29, 2012
    Reported below, 90 AD3d 1378.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (see Cuadrado v New York City Tr. Auth., 65 AD3d 434 [2009], Iv dismissed 14 NY3d 748 [2010]).


text:
    In the Matter of Susan D. Settenbrino, P.C., Appellant, v Florentina Barroga-Hayes, Respondent.
    Submitted January 17, 2012;
    decided March 29, 2012
    Reported below, 89 AD3d 1094.
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Supreme Court’s order denying petitioner’s motion to correct the judgment, dismissed upon the ground that such portion of the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


author: Smith, J. (dissenting).

text:
    [967 NE2d 676, 944 NYS2d 453]
    The People of the State of New York, Respondent, v Aaron Richard Fisher, Appellant.
    Argued February 15, 2012;
    decided April 3, 2012

      APPEARANCES OF COUNSEL

      Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of counsel), for appellant.

      Michael C. Green, District Attorney, Rochester (Kelly C. Wolford of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and a new trial ordered.

Defendant was convicted of various sex offenses and sentenced to prison terms aggregating to 20 years upon the testimony of two of his nieces, that while they were left by their mother in his care he on numerous occasions molested them. The alleged abuse was not, in the aftermath of its report, medically confirmed during the physical examinations to which the children were subjected, and defendant raised before the jury the question of whether the children had been put up to their accusations by their mother; there was evidence that the children were afraid of their mother because she was physically abusive and that she had a financial motive to prompt their allegations against defendant. Indeed, there was proof that the mother took advantage of defendant’s arrest and pretrial incarceration to steal from him by cashing over forged endorsements government checks in substantial amounts payable to defendant and mailed to him at the mother’s address.

Crucial to confirming the young children’s accounts was testimony elicited by the People from one Raymond Burse, a convicted murderer, who, while reincarcerated for and awaiting a hearing upon an alleged parole violation, claimed to have become privy to statements by defendant in which defendant described his sexual predation upon his nieces. Defendant urged that Burse obtained the information upon which his testimony was based not from him but from legal papers he had with him during his pretrial incarceration, to which Burse surreptitiously gained access. Defendant pointed out in this regard that, upon learning of the sex abuse charges against him, Burse communicated by letter directly with the trial prosecutor, whose name he would not likely have known except from defendant’s paperwork. Defendant also contended that Burse was receiving a benefit in exchange for his testimony against him, the prosecutor having promised to write a letter on Burse’s behalf to the Parole Board.

While the evidence of the charged abuse was sufficient, it was, even when viewed in the light most favorable to the People, far from overwhelming; the trial’s outcome turned entirely on the jury’s resolution of fairly pronounced witness credibility issues. Those issues should have been resolved by the jury dispassionately on the basis of the properly admitted evidence. The prosecutor’s summation, however, directed the jury’s attention elsewhere—a circumstance that competent defense counsel should have sought to prevent.

We have instructed that

“[i]t is fundamental that the jury must decide the issues on the evidence, and therefore fundamental that counsel, in summing up, must stay within the four corners of the evidence and avoid irrelevant comments which have no bearing on any legitimate issue in the case. Thus the District Attorney may not refer to matters not in evidence or call upon the jury to draw conclusions which are not fairly inferrable from the evidence. Above all he [or she] should not seek to lead the jury away from the issues by drawing irrelevant and inflammatory conclusions which have a decided tendency to prejudice the jury against the defendant” (People v Ashwal, 39 NY2d 105, 109-110 [1976] [citations and internal quotation marks omitted]).

Here, the prosecutor improperly encouraged inferences of guilt based on facts not in evidence. Without record basis for referring to prior consistent statements by the complainants, no such statements having been admitted in evidence—likely for the very good reason that there had been no claim of recent fabrication (see People v McClean, 69 NY2d 426, 428 [1987])—the prosecutor bolstered her young witnesses’ credibility by describing in extended fashion the “long road” they had traveled in advance of their trial appearances in the course of which “they said the exact same thing over and over and over again” to the police, social workers, doctors and the grand jury. Continuing, the prosecutor, essentially testifying, improperly, advised the jury that it could view evidence of the complainants’ contemporaneous misbehavior at school as proof that the crimes occurred.

Hazard of an improperly founded, erroneous conviction was further heightened by the prosecutor’s less than frank minimization of the consideration Burse was to receive in exchange for his potentially pivotal testimony as to defendant’s jailhouse admissions. While it was literally true that the prosecutor, as she asserted in her summation, was not the Parole Board and did not “control what happen[ed] to Ray [Burse],” the none too subtle suggestion that the prosecutor’s letter to the Board on Burse’s behalf was merely a courtesy and conferred no real benefit to be weighed in assessing Burse’s credibility was materially misleading; the prosecutor was plainly in a position, if not to control, at least to influence the outcome of Burse’s parole violation hearing.

Finally, in her peroration, the prosecutor exhorted, “[t]he voice of a child is evidence, the testimony of two children is evidence. The day that the voice of a child is not evidence is the day that those doors [the doors to the courtroom] should be locked forever.” Obviously, it was not permissible for the prosecutor, an officer of the court, to admonish the jury that their acceptance of the testimony of the child witnesses was essential to the administration of justice.

Even when viewed in the “totality” of the representation provided defendant, defense counsel’s failure to object to any, let alone all, of the prosecutor’s egregiously improper departures during summation, particularly in the highly charged, potentially outcome determinative context in which they occurred, deprived defendant of the right to effective assistance of counsel (see People v Baldi, 54 NY2d 137, 146-147 [1981]). We see no strategic basis for counsel’s failure to object to these highly prejudicial instances of prosecutorial abuse, in critical respects utterly attenuated from the evidence and the applicable principles of law.

Smith, J. (dissenting).

Defendant was convicted on compelling evidence, after a fair trial, of sexually abusing two young girls. The majority sets the conviction aside because it is displeased with the prosecutor’s summation, and thinks defense counsel should have objected to it. In fact, the summation, while not impeccable, was not outrageous. Defense counsel’s choice not to object may have been the right one. And if it was a mistake, it rises nowhere near to the level of ineffective assistance of counsel.

I simply cannot fathom why the majority is reversing in this case. We have never, so far as I know, done such a thing before, and I hope it will be long before we do it again.

I

The majority identifies four passages in the prosecutor’s summation that it says were improper. None of them would justify reversing defendant’s conviction, even if defense counsel had objected and the objections had been overruled.

I concede that the prosecutor should have omitted her emotional peroration: “The day that the voice of a child is not evidence is the day that those doors should be locked forever.” Prosecutors are supposed to be more dispassionate than that, and if objection had been made the trial court might have reminded the prosecutor and the jury to focus on the evidence. But missteps like this are not uncommon—getting carried away is an occupational hazard for trial lawyers—and they very rarely result in either a mistrial or a reversal on appeal. I know of no case, and the majority cites none, in which rhetoric fairly comparable to what this prosecutor used proved fatal to a conviction. Jurors should be given some credit for common sense, and no one with common sense would be persuaded by this sort of talk to overlook any reasonable doubt about a defendant’s guilt.

The majority’s criticism of the prosecutor’s defense of the children’s credibility (majority mem at 966) is technically, but only technically, correct. While it was perfectly proper for the prosecutor to remind the jury that the witnesses had traveled a “long road”—as indeed they had, through many interrogations—she should not have said that “they said the exact same thing over and over and over again.” There was no evidence to that effect, and could not have been, because prior consistent statements are inadmissible hearsay. But prior inconsistent statements are admissible as impeachment, and it would have been quite proper for the prosecutor to point out to the jury that, despite all the times that the children had been interviewed and testified, they were not impeached at trial with a single significant inconsistency. That the prosecutor did not make the “long road” argument in quite the right way would surely be no basis for reversing this conviction—even if the issue were preserved.

The majority’s other two criticisms of the summation are, in my opinion, simply wrong. The majority faults the prosecutor for telling the jury “that it could view evidence of the complainants’ contemporaneous misbehavior at school as proof that the crimes occurred” (majority mem at 966). But the majority does not explain why a sudden change in children’s behavior is irrelevant in a case involving alleged sexual abuse. Factfinders are generally allowed to consider a victim’s post-event conduct to support a finding that a crime occurred (People v Groff, 71 NY2d 101, 111 [1987]; People v Kidwell, 88 AD3d 1060, 1062 [3d Dept 2011]). I cannot believe that the majority intends to change that rule.

And finally, though I am no more impressed than the majority by the testimony of Burse, the jailhouse informer, the prosecutor was entitled to call Burse as a witness and to argue that the jury should believe him. In doing so, she faced the obvious problem that Burse got, in exchange for his testimony, a favorable letter from the prosecutor to the Parole Board, and she was entitled to remind the jury that she did not “control” what the Parole Board did. Of course, her letter might well influence what the Parole Board did—she never claimed it could not. If the jurors were not bright enough to figure that out on their own, it was explained to them by defense counsel in his own summation: “Do you really believe that a District Attorney of Monroe County going in front of a parole board and saying this man cooperated with us . . . [Y]ou don’t think they would take that strongly into his consideration, and he will get his minimum?”

II

While the majority has mentioned two things in the prosecutor’s summation that might have warranted objection (and I believe there were others, though of minor importance), defense counsel was not necessarily wrong in passing up the opportunity to object. Before the prosecutor spoke, defense counsel had given an even more passionate, and quite effective, closing argument. He had excoriated the victims’ mother (“You think this woman is not capable of using her children for financial gain? Of course, she is. It’s all she does”) and gone after Burse with enormous relish (“Can you believe one word out of that lying murderer’s mouth? . . . [F]lush [his testimony] down the toilet where it belongs”). The prosecutor objected three times during this summation; all her objections look reasonable to me, but only one was sustained.

I am not suggesting either that defense counsel argued improperly, or that if he did the prosecutor should be excused for doing the same thing. But a defense lawyer who has just given a summation like this, and been allowed to do so without significant interruption, might justifiably fear that he will look bad to the jury, or draw rebuke from the judge, if he interrupts his adversary’s argument. He might have thought it a more effective strategy to warn the jury in advance about the prosecutor’s rhetoric—and that is exactly what he did:

“She’s going to get up here when I’m done and she’s going to be theatrical, she will be dramatic, like she’s been throughout the course of the trial. She’s trying to get you excited, play on your sympathies of these poor little kids . . . You can’t base your verdict on what she says. You base it on the facts and the evidence and that’s what came to you from the witness stand.”

It was not, I suggest, an unreasonable trial strategy for defense counsel to sit quietly and appear unconcerned when the prosecutor did what he had told the jury she would do (see People v Taylor, 1 NY3d 174, 177 [2003] [defense counsel “may have concluded that further objections would serve only to annoy the trial court or—more importantly—the jury”]).

III

But even if defense counsel’s silence was a mistake, it is not close to being the sort of mistake that constitutes ineffective assistance of counsel.

The rules governing ineffective assistance claims are well established. A defendant is constitutionally entitled not to a perfect lawyer, but to “meaningful representation” (People v Baldi, 54 NY2d 137, 147 [1981]; see People v Benevento, 91 NY2d 708, 712 [1998]). “Judicial scrutiny of counsel’s performance must be highly deferential” (Strickland v Washington, 466 US 668, 689 [1984]). Even “significant mistakes by defense counsel” will not necessarily sustain an ineffective assistance claim (People v Turner, 5 NY3d 476, 480 [2005], citing People v Hobot, 84 NY2d 1021 [1995] and People v Flores, 84 NY2d 184 [1994]). I have already said enough, I think, to demonstrate that any error defense counsel committed here did not cross the threshold of ineffectiveness.

Nor did defendant suffer prejudice from any error—a factor we have held “significant” though not “indispensible” to a showing of ineffective assistance (People v Stultz, 2 NY3d 277, 284 [2004]). While a defendant need not show that he would probably have been acquitted but for counsel’s error, he must show at least a serious impairment of his right to a fair trial (Benevento, 91 NY2d at 713). Here, defendant’s trial was fair, and the proof of his guilt was strong—a conclusion I reach giving not the slightest weight to Burse’s testimony.

There were four other witnesses—the two victims, their older brother and their mother—all of whom would have to be lying if defendant is innocent. Even accepting the theory of the defense that the mother (defendant’s sister) had a motive to frame him, it is highly unlikely that she could have induced her children to invent the detailed, powerfully convincing testimony that they gave. The girls (12 and 8 at the time of trial) described their sexual experience in childlike, anatomically precise terms. Their 13-year-old brother described the older girl’s decision to confide first in him, and then in their mother, and added his own observation of defendant’s behavior: he said he had seen defendant kissing the older girl “on the neck like girlfriends/ boyfriends, teenagers.” To believe that the mother stage-managed all this testimony, the jury would have had to think her an extraordinary handler of theatrical talent. And, as the prosecutor asked in summation, if the whole story was a fabrication, why take the risk of bringing the boy into the conspiracy?

If the testimony of the children and their mother was not enough, the jury also heard evidence of defendant’s consciousness of guilt. He admitted that, when his sister warned him “to watch what I say and watch what I did around her children” he volunteered the statement “I’m not a child molester”—at a time when no one had said he was. And when he was later confronted, by a police investigator, with the accusation, he gave incredible, defensive explanations—suggesting, in substance, that the older girl had tried unsuccessfully to seduce him. It was not until the trial that he claimed that the children’s mother persuaded them to make everything up.

In sum, it is just not plausible that this defendant was convicted because his lawyer failed to object to the prosecutor’s summation. He was convicted because the evidence proved him guilty beyond a reasonable doubt.

I deeply regret the majority’s decision to require this painful case to be tried all over again. I can only end as I began, with the hope that we will not soon see another result like this.

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

Order reversed, etc.


text:
    [967 NE2d 700, 944 NYS2d 475]
    Air Stream Corp., Appellant, v 3300 Lawson Corp., Respondent.
    Decided April 3, 2012

      APPEARANCES OF COUNSEL

      Dollinger, Gonski & Grossman, Carle Place (Floyd G. Grossman of counsel), for appellant.

      Jaspan Schlesinger LLP, Garden City (Linda S. Agnew 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, and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the principles of law expressed in Estate of Becker v Murtagh (19 NY3d 75 [2012] [decided today]). Because the legal standards Supreme Court employed were consonant with our decision in Becker, we remit to the Appellate Division rather than Supreme Court. Thus, the Appellate Division, in reviewing Supreme Court’s judgment, should now apply the facts of this case to the law as expressed in Becker.

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


text:
    Clermont York Assoc., Respondent, v Leslie Feher, Appellant.
    Submitted February 6, 2012;
    decided April 3, 2012
   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; CPLR 5602).


text:
    In the Matter of David D., a Disbarred Attorney, Appellant. Grievance Committee of the Eighth Judicial District, Respondent.
    Submitted February 6, 2012;
    decided April 3, 2012
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the proceeding within the meaning of the Constitution. Motion for a stay dismissed as academic.

Judge Pigott taking no part.


text:
    Donald Felix, Respondent, v Law Office of Thomas F. Liotti, Appellant.
    Submitted February 14, 2012;
    decided April 3, 2012
    Reported below, 90 AD3d 597; 2012 NY Slip Op 61575CU).
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument or, in the alternative, leave to appeal to the Court of Appeals, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for a stay dismissed as academic.


text:
    In the Matter of Isaac Howard M. and Another, Children Alleged to be Neglected. Fatima M., Appellant; Jewish Child Care Association of New York, Respondent.
    Submitted February 6, 2012;
    decided April 3, 2012
    Reported below, 90 AD3d 559.
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Family Court’s order denying appellant’s motion to vacate a prior order of that court, dismissed upon the ground that such portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Kaufmann’s Carousel, Inc., Appellant, v Carousel Center Company LP et al., Respondents. (And Other Actions.)
    Submitted February 6, 2012;
    decided April 3, 2012
    Reported below, 87 AD3d 1343; 68 AD3d 1696, 1697, 1700.
   Motion, insofar as it seeks leave to appeal from the December 2009 Appellate Division orders, dismissed as untimely (see CPLR 5513 [b]; 2103 [b] [2]); motion, insofar as it seeks leave to appeal from the September 2011 Appellate Division order, dismissed upon the ground that such order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Alfredo Lugo, Appellant, v Andrea W. Evans, as Chair of the Division of Parole, Respondent.
    Submitted January 23, 2012;
    decided April 3, 2012
    Reported below, 89 AD3d 1356.
   Motion for leave to appeal dismissed upon the ground that the issues presented have become moot.


text:
    The People of the State of New York, Respondent, v Tyray Gilliam, Appellant.
    Submitted March 19, 2012;
    decided April 3, 2012
    Reported below, 86 AD3d 923.
   Motion by appellant pro se for removal of assigned counsel and assignment of new counsel denied.


text:
    The People of the State of New York, Respondent, v Curtis Livingston, Appellant.
    Submitted February 14, 2012;
    decided April 3, 2012
    Reported below, 87 AD3d 628.
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    Tony Perpignan, Appellant, v First Franklin Financial Corp., Respondent.
    Submitted February 14, 2012;
    decided April 3, 2012
    Reported below, 87 AD3d 1117.
   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 Shore Development Partners, Respondent, v Board of Assessors et al., Appellants.
    Submitted February 14, 2012;
    decided April 3, 2012
    Reported below, 82 AD3d 988.
   Motion for leave to appeal dismissed upon the ground that the orders and judgments sought to be appealed from do not finally determine the proceedings within the meaning of the Constitution.


text:
    In the Matter of State of New York, Respondent, v Enrique T., Appellant.
    Submitted February 14, 2012;
    decided April 3, 2012
    Reported below, 93 AD3d 158.
   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 and is not an order of the type provided for in CPLR 5602 (a) (2).


text:
    [968 NE2d 965, 945 NYS2d 611]
    In the Matter of Luyster Creek, LLC, Appellant, v New York State Public Service Commission et al., Respondents.
    Argued March 19, 2012;
    decided April 26, 2012

      APPEARANCES OF COUNSEL

      Dax Law Firm, P.C., Albany (John W. Dax and William F. McLaughlin of counsel), for appellant.

      Peter McGowan, General Counsel, Albany (Jonathan D. Feinberg and John C. Graham of counsel), for New York State Public Service Commission, respondent.

      Davis Polk & Wardwell LLP, New York City (Guy Miller Struve of counsel), and Scott A. Levinson and Stephen T. Brewi, for Consolidated Edison Company of New York, Inc., respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, the petition should be granted and the April 2007 determination of the New York State Public Service Commission should be annulled.

In December 2001, petitioner Luyster Creek, LLC (Luyster Creek) and respondent Consolidated Edison Company of New York, Inc. (Con Edison) entered into a purchase agreement whereby Luyster Creek would purchase a parcel of land located in Astoria, Queens, which Con Edison no longer needed. As part of the negotiations, Luyster Creek informed Con Edison that it was its intention to construct an envelope factory on the land. Pursuant to Public Service Law § 70 the agreement between Luyster Creek and Con Edison needed the approval of respondent New York State Public Service Commission (the Commission). Luyster Creek and Con Edison submitted a petition to the Commission requesting authorization for the transaction “under the terms and conditions set forth in the Agreement.” On November 25, 2002, the Commission approved the transfer as satisfying the public interest requirement of Public Service Law § 70, subject to certain conditions. The transaction never closed.

Although the Commission, in its declaration approving the transfer, noted that Luyster Creek intended to build an envelope factory, it did not expressly make the construction of said factory a necessary condition of the approval or a condition precedent to the transfer. The Commission did, however, expressly condition its approval of the transaction “upon compliance by Con Edison, [Luyster Creek], and their successors and assigns with the National Electric Code, the National Electric Safety Code, the Commission’s rules and regulations, the Commission’s standards for electrostatic and electromagnetic fields, and all other applicable laws, rules and regulations” (emphasis added). The Commission ordered that the transaction was “approved subject to the conditions set forth below and in the body of this Order.”

Subsequently, Con Edison learned that Luyster Creek no longer intended to build the envelope factory. Con Edison petitioned the Commission to rescind the November 2002 order approving the transaction. On April 24, 2007, the Commission rescinded its approval of the transfer stating: “use of the Property for construction of an envelope manufacturing facility was one of the essential factors that this Commission considered in making a determination that the proposed transfer is in the public interest, pursuant to [Public Service Law] § 70.”

The Commission’s statement in its 2007 order that the use of the property as an envelope manufacturing facility was the reason that the sale was approved is belied by its 2002 order, which contemplates future transfers of the property as follows: “the Agreement includes deed restrictions that prevent [Luyster Creek] or any future owner from using the Property in a manner otherwise permitted by the applicable zoning regulations” (emphasis added).

This language makes clear that the Commission in 2002 recognized the possibility that Luyster Creek could eventually transfer the property. Furthermore, potential resale of the property was part of the agreement between Luyster Creek and Con Edison, which provided that Luyster Creek would pay Con Edison fifty percent of all net proceeds from any sale that occurred within three years of closing.

The development of an envelope factory was not made an express condition of the Commission’s approval or a condition precedent to the transfer of the property to Luyster Creek, therefore, the Commission’s Order of April 2007, nullifying its prior approval of the proposed sale lacks a rational basis (see Matter of National Fuel Gas Distrib. Corp. v Public Serv. Commn. of the State of N.Y., 16 NY3d 360, 368 [2011]).

Given this disposition, we need not reach the issue as to whether the Commission exceeded its delegated statutory authority.

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

Order reversed, etc.


text:
    [967 NE2d 1198, 944 NYS2d 753]
    The People of the State of New York, Respondent, v Latisha Bowden, Appellant.
    Decided April 26, 2012
    APPEARANCES OF COUNSEL

      Legal Aid Society, New York City (Michael J. McLaughlin, Richard Joselson and Steven Banks of counsel), for appellant.

      Robert T. Johnson, District Attorney, Bronx (Stanley R. Kaplan 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), appeal dismissed upon the ground that the reversal by the Appellate Division was not “on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]).

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


text:
    [969 NE2d 197, 946 NYS2d 81]
    Jill Williams et al., Respondents, v State of New York, Appellant.
    Argued March 21, 2012;
    decided April 26, 2012

      APPEARANCES OF COUNSEL

      Eric T. Schneiderman, Attorney General, New York City (Cecelia C. Chang, Robert C. Weisz, Benjamin N. Gutman and Barbara D. Underwood of counsel), for appellant.

      McGarry & Simon, New York City (William A. Simon of counsel), for respondents.

      Mental Hygiene Legal Service, First Judicial Department, New York City (Marvin Bernstein and Sadie Ishee of counsel), and Mental Hygiene Legal Service, Second Judicial Department, Mineola (Lesley M. De Lia, Lisa Volpe and Dennis B. Feld of counsel), for Mental Hygiene Legal Service, First Judicial Department and another, amici curiae.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, the judgment of the Court of Claims reinstated and the certified question answered in the negative.

On July 25, 1993, while escorted by a mental health therapy aide to one of the chapels on the grounds of the Manhattan Psychiatric Center (MPC), Tony Joseph (Joseph), a voluntary patient, stole away when the aide permitted him to use a bathroom out of her sight. MPC, which is operated by the State of New York’s Office of Mental Health (OMH), is a nonsecure civil facility located on Ward’s Island in New York City. The aide contacted MPC security personnel when she realized that Joseph was missing, and staff members and safety officers searched for him on Ward’s Island to no avail. Under OMH policies in place at the time, MPC classified Joseph as “left without consent” (LWOC), denoting an assessment that he was nondangerous and did not meet certain other criteria, rather than “escaped,” which would have required the hospital to contact the police for assistance in locating him.

Nearly two years later, on July 7, 1995, Joseph threw a glass bottle at claimant Jill Williams (Williams), while she was waiting to cross Riverside Drive on the Upper West Side of Manhattan. The bottle hit her lower right leg, fracturing the tibia, and she underwent two surgeries. Joseph was convicted of first-degree assault for the attack, and was sentenced to 4 to 8 years in prison. Williams and her husband (collectively, claimants) subsequently brought this negligence action against the State. In an amended claim dated November 12, 1996, they alleged that the State negligently supervised Joseph, who had a history of violence, particularly against women, and improperly classified his unauthorized leave from the hospital as LWOC, resulting in Williams’s injuries. Williams sought $27,462.60 for medical and hospital services, medicine and miscellaneous expenses and $10 million for pain and suffering; her husband sought $5 million for loss of services. In a decision filed on June 3, 2009, the Court of Claims held that the breach of any duty owed by the State to claimants was not the proximate cause of Williams’s injuries—i.e., that “the failure to prevent Joseph from sneaking out of MFC ... or the failure to classify such elopement as an escape does not support a legal nexus to his assault on Ms. Williams nearly two years later” (23 Misc 3d 1135[A], 2009 NY Slip Op 51103[U] [2009]). Accordingly, judgment was entered on June 10, 2009 dismissing the claim. Claimants appealed.

On May 3, 2011, the Appellate Division, with two Justices dissenting, reversed on the law and the facts, reinstated the claim, found the State liable and remanded the matter for a trial on the issue of damages (84 AD3d 412 [1st Dept 2011]). The majority concluded that “there [was] no doubt that [the State’s] carelessness in supervising Joseph was the proximate cause of claimant’s injuries”; in particular,

“despite Joseph’s long history of violence, defendant not only created the opportunity for Joseph to escape from its care, but also, by classifying him as LWOC, absolved itself of the obligation to notify the police that a dangerous, violent and mentally unstable individual was loose somewhere in New York City” (id. at 415-416).

The dissenters, agreeing with the trial judge, concluded that the assault was “too remote in time to be proximately caused by” actions or omissions occurring at MFC “almost two years earlier” (id. at 417 [Andrias, J.P., dissenting]). On July 14, 2011, the Appellate Division granted the State’s motion for leave to appeal to us on a certified question of law; namely, whether its order was properly made. We answer the certified question in the negative, and so reverse.

The causal connection between the hospital staff’s alleged negligence in July 1993 and Joseph’s attack on Williams in July 1995—almost exactly two years later—is simply too attenuated and speculative to support liability. For one thing, there is no way to know whether and no reason to suppose that Joseph, a voluntary patient, would have remained in OMH’s care in 1995 even if hospital staff had prevented him from leaving MFC’s grounds in 1993, or had notified the police of his absence. And although there was always a risk that Joseph might eventually decompensate and become assaultive once outside a hospital setting—whether he left with or without permission—any number of circumstances arising during the two-year period might have triggered such a change in mental condition. Proximate cause analysis incorporates a “test of temporal duration,” which asks if “the occurrence of the injury [was] tied to the claimed negligent act or omission within a reasonable lapse of time” (Pagan v Goldberger, 51 AD2d 508, 511 [2d Dept 1976]; see also Restatement [Second] of Torts § 433 [c], Comment f [“Experience has shown that where a great length of time has elapsed between the actor’s negligence and harm to another, a great number of contributing factors may have operated, many of which may be difficult or impossible of actual proof’]). Here, the lapse of time was not reasonable. Accordingly, the State was entitled to dismissal of the claim because it established, as a matter of law, that any negligence on its part was not a proximate cause of Williams’s injuries (see Bonomonte v City of New York, 17 NY3d 866 [2011]).

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

Order reversed, etc.


text:
    Bentoria Holdings, Inc., Respondent, v Travelers Indemnity Company, Appellant, et al., Defendants.
    Submitted April 23, 2012;
    decided April 26, 2012
    Reported below, 84 AD3d 1135.
   Motion by American Insurance Association et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Jennifer Cangro, Appellant, v John Z. Marangos, Respondent. In the Matter of Gina Marie Reitano. Jennifer Cangro, an Alleged Incapacitated Person, Appellant, v Mary V. Rosado, Respondent.
    Decided April 26, 2012
    Reported below, 90 AD3d 470; 89 AD3d 535.
   Appeals dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Daniel Marks Cohen et al., Appellants, v Andrew M. Cuomo, Governor of the State of New York, et al., Respondents.
    Submitted April 25, 2012;
    decided April 26, 2012
    Reported below, 35 Misc 3d 478.
   Motion by New Roosevelt Foundation, 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 19 copies filed within seven days.


text:
    Daniel Marks Cohen et al., Appellants, v Andrew M. Cuomo, Governor of the State of New York, et al., Respondents.
    Submitted April 25, 2012;
    decided April 26, 2012
    Reported below, 35 Misc 3d 478.
   Motion by Common Cause 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 19 copies filed within seven days.


text:
    In the Matter of H.H. Warner, LLC, Appellant, v Rochester Genesee Regional Transportation Authority, Respondent.
    Decided April 26, 2012
    Reported below, 87 AD3d 1388.
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    NYCTL 1998-2 Trust, Respondent, v Norman Ackerman, Appellant, et al., Defendants.
    Submitted January 23, 2012;
    decided April 26, 2012
    Reported below, 82 AD3d 447.
   Motion for leave to appeal dismissed as untimely. The prior motion for leave to appeal made to the Appellate Division was untimely (see Karger, Powers of the New York Court of Appeals § 12:3, at 436-437 [3d ed rev]). Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York, Respondent, v Rafael L. Belliard, Appellant.
    Submitted April 9, 2012;
    decided April 26, 2012
    Reported below, 89 AD3d 1443.
   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 Stephen DeProspero, Appellant.
    Submitted April 9, 2012;
    decided April 26, 2012
    Reported below, 91 AD3d 39.
   Motion for assignment of counsel granted only to the extent that Frank Policelli, Esq., 10 Steuben Park, Utica, New York 13501 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 Isaac Diggins, Appellant.
    Submitted April 23, 2012;
    decided April 26, 2012
    Reported below, 84 AD3d 667.
   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 Alex Echevarria, Appellant.
    Submitted April 2, 2012;
    decided April 26, 2012
    Reported below, 89 AD3d 545.
   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 Dayshawn P. Handy, Appellant.
    Submitted April 9, 2012;
    decided April 26, 2012
    Reported below, 83 AD3d 1454.
   Motion for assignment of counsel granted and Timothy E Donaher, Esq., Monroe County Fublic 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 Malik Howard, Appellant.
    Submitted April 23, 2012;
    decided April 26, 2012
    Reported below, 92 AD3d 176.
   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-Respondent, v Gerard Ippolito, Also Known as Gerald Ippolito, Respondent-Appellant.
    Submitted March 26, 2012;
    decided April 26, 2012
    Reported below, 89 AD3d 1369.
   Motion for assignment of counsel granted and Timothy E Donaher, Esq., Monroe County Public Defender, 10 N. Fitzhugh Street, Rochester, New York 14614 assigned as counsel to the respondent-appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Cornell Long, Appellant.
    Submitted April 16, 2012;
    decided April 26, 2012
    Reported below, 89 AD3d 1513.
   Motion for poor person relief granted.


text:
    The People of the State of New York, Appellant-Respondent, v Edgar Morales, Respondent-Appellant.
    Submitted April 16, 2012;
    decided April 26, 2012
    Reported below, 86 AD3d 147.
   Motion by Center on the Administration of Criminal Law for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    The People of the State of New York, Respondent, v Andrew Moss, Appellant.
    Submitted April 9, 2012;
    decided April 26, 2012
    Reported below, 89 AD3d 600.
   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 George Nager, Appellant.
    Submitted February 21, 2012;
    decided April 26, 2012
    Reported below, 34 Misc 3d 135(A).
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion from the order of the Appellate Term (see CPLR 5602 [a]).


text:
    The People of the State of New York, Respondent, v Elbert Norris, Appellant.
    Submitted March 26, 2012;
    decided April 26, 2012
    Reported below, 90 AD3d 955.
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Tyrell Norris, Appellant.
    Submitted March 26, 2012;
    decided April 26, 2012
    Reported below, 90 AD3d 788.
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v David Plunkett, Appellant.
    Submitted April 2, 2012;
    decided April 26, 2012
    Reported below, 77 AD3d 1442.
   Motion by American Academy of HIV Medicine 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:
    The People of the State of New York, Respondent, v Leroy Tuff, Jr., Appellant.
    Submitted April 16, 2012;
    decided April 26, 2012
    Reported below, 90 AD3d 1645.
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York ex rel. Chris Apple-white, Appellant, v Harold D. Graham, Superintendent, Auburn Correctional Facility, Respondent.
    Submitted February 21, 2012;
    decided April 26, 2012
    Reported below, 87 AD3d 1284.
   Motion for leave to appeal dismissed upon the ground that the issues presented have become moot. Motion for poor person relief dismissed as academic.


text:
    Rose Group Park Avenue LLC et al., Appellants, v New York State Liquor Authority, Respondent. The Preservation Coalition et al., Intervenors-Respondents.
    Submitted March 26, 2012;
    decided April 26, 2012
    Reported below, 93 AD3d 1.
   Motion by Brown Memorial Baptist Church et al. for leave to file a memorandum of law amici curiae on the motion for leave to appeal herein, and for leave to file a brief amici curiae on the appeal herein, dismissed as academic.


text:
    In the Matter of Stephen Rosenblum, Respondent, v New York City Conflicts of Interest Board et al., Appellants.
    Submitted March 26, 2012;
    decided April 26, 2012
    Reported below, 75 AD3d 426.
   Motion for reargument denied with $100 costs and necessary reproduction disbursements [see 18 NY3d 422 (2012)].


text:
    In the Matter of John Whitfield, Appellant, v Patricia J. Bailey, Individually and as FOIL Appeal Officer for the New York County District Attorney’s Office, Respondent.
    Submitted February 21, 2012;
    decided April 26, 2012
    Reported below, 91 AD3d 491.
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed the October 2010 Supreme Court order, denied; motion for leave to appeal otherwise dismissed upon the ground that the remaining portions of the order sought to be appealed from do not finally determine the proceeding within the meaning of the Constitution.