text:
    In the Matter of Peter G. and Others, Children Alleged to be Neglected. Angela G. et al., Respondents; Administration for Children’s Services, Appellant.
    Submitted June 14, 2004;
    decided July 1, 2004
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the two-Justice dissent is not on a question of law (CPLR 5601 [a]).


source: Caselaw Access Project

license: Public Domain

text:
    Wende C. et al., Appellants, v United Methodist Church, New York West Area, Defendant, and Western New York Conference of United Methodist Church et al., Respondents.
    Submitted July 26, 2004;
    decided July 29, 2004
   On reading and filing [the] stipulation, it is ordered, that the above-captioned appeal be and the same hereby is withdrawn as to respondent Hosanna Junction United Methodist Church.


text:
    In the Matter of Meryl L. Fischer et al., Respondents, v Michael S. Peragine et al., Appellants, et al., Respondent.
    Submitted August 24, 2004;
    decided August 25, 2004
   Motion by Joseph Saladino for intervention or, in the alternative, for leave to appear amicus curiae, denied upon the ground that movant is not bound by the Appellate Division order sought to be appealed from.


text:
    In the Matter of Gilberto Flores et al., Appellants, v James L. Kapsis et al., Respondents.
    Submitted August 24, 2004;
    decided August 25, 2004
   Motion by Frank MacKay for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


author: Memorandum.

text:
    [817 NE2d 819, 784 NYS2d 2]
    Aleksey Chizh, Appellant, v Hillside Campus Meadows Associates, LLC, Respondent.
    Decided August 31, 2004

      APPEARANCES OF COUNSEL

      Lewis & Lewis, P.C., Buffalo (Emily L. Downing and Richard P. Amico of counsel), for appellant.

      Law Offices of John Quackenbush, Buffalo (John Wallace of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Unlike the situation in Prats v Port Auth. of N.Y. & N.J. (100 NY2d 878 [2003]), here plaintiff was replacing a torn window screen at the time of his injury, an activity that constituted “routine maintenance” rather than “repair” or “alteration” of a building or structure (see Esposito v New York City Indus. Dev. Agency, 1 NY3d 526 [2003]; see also Abbatiello v Lancaster Studio Assoc., 3 NY3d 46, 53 [2004]).

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

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


text:
    In the Matter of Annette B. Orange County Department of Social Services, Respondent; Joseph B., Appellant.
    Submitted August 9, 2004;
    decided August 31, 2004
   Motion for assignment of counsel granted and Neal D. Puterías, Esq., 50 Main Street, Suite 100, White Plains, NY 10606 assigned as counsel to the appellant on the appeal herein.


text:
    In the Matter of Best Payphones, Inc., Appellant, v Department of Information Technology and Telecommunications of City of New York, Respondent.
    Submitted June 14, 2004;
    decided August 31, 2004
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that dismissed the appeal from the order denying appellant’s motion for reargument and renewal, 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 granted.


text:
    Blue Cross and Blue Shield of New Jersey, Inc., et al., Plaintiffs-Respondents, v Philip Morris USA Incorporated, et al., Defendants-Appellants, et al., Defendants.
    Submitted August 9, 2004;
    decided August 31, 2004
   Motion by Pharmaceutical Research and Manufacturers of America for leave to file a brief amicus curiae on consideration of the certified question herein granted and the proposed brief is accepted as filed.


text:
    Tanya Bonnette, Appellant, v Long Island College Hospital et al., Respondents, et al., Defendants.
    Submitted July 12, 2004;
    decided August 31, 2004
   Motion by New York State Trial Lawyers Association for leave to appear amicus curiae on the appeal herein granted to the extent that the proposed brief is accepted as filed.


text:
    Capitol Records, Inc., Appellant, v Naxos of America, Inc., Respondent.
    Submitted August 4, 2004;
    decided August 31, 2004
   Certification of question by the United States Court of Appeals for the Second Circuit, pursuant to section 500.17 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.17), accepted and the issues presented are to be considered after briefing and argument.

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


text:
    In the Matter of City Council of the City of Watervliet et al., Appellants, v Town Board of the Town of Colonie, Respondent.
    Submitted August 2, 2004;
    decided August 31, 2004
   Motion by New York State Department of Environmental Conservation for leave to participate in oral argument on the appeal herein granted.


text:
    In the Matter of Nathaniel Jackson, Appellant, v Joseph Smith et al., Respondents.
    Submitted June 14, 2004;
    decided August 31, 2004
   Motion for leave to appeal denied. The Court of Appeals restates the rule that denial of a motion for leave to appeal is not equivalent to an affirmance and has no precedential value (see e.g. Matter of Marchant v Mead-Morrison Mfg. Co., 252 NY 284, 297-298).


text:
    Sharwline Nicholson et al., Respondents, v Nicholas Scoppetta et al., Appellants, et al., Defendants.
    Submitted August 2, 2004;
    decided August 31, 2004
   Motion by Joseph L. Woolston, M.D., 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.


text:
    The People of the State of New York, Respondent, v Ariel Nazario, Appellant.
    Submitted July 19, 2004;
    decided August 31, 2004
   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 Carlos Prado, Appellant.
    Submitted August 2, 2004;
    decided August 31, 2004
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Kenneth Smith, Appellant.
    Submitted July 26, 2004;
    decided August 31, 2004
   Motion for assignment of counsel granted and Edward J. Nowak, 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 Victor T. Thomas, Appellant.
    Submitted August 2, 2004;
    decided August 31, 2004
   Motion for assignment of counsel granted and Kent V Moston, Esq., Legal Aid Society of Nassau County, NY, One Helen Keller Way, Hempstead, NY 11550 assigned as counsel to the appellant on the appeal herein.


text:
    Thomas Riley, Appellant, v State of New York, Respondent.
    Submitted June 1, 2004;
    decided August 31, 2004
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Jomo Williams, Appellant, v Mary H. Smith et al., Respondents.
    Submitted June 14, 2004;
    decided August 31, 2004
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


text:
    [818 NE2d 647, 785 NYS2d 6]
    In the Matter of Martha Ferrugia, Appellant, v New York State Department of Health et al., Respondents.
    Decided September 2, 2004

      APPEARANCES OF COUNSEL

      Koldin Law Center, P.C., East Syracuse (Stephen K. Koldin of counsel), for appellant.

      Betsy S. Steger, Mayville, for Chautauqua County Department of Social Services, respondent.

      Eliot Spitzer, Attorney General, Albany (Kathleen M. Treasure and Peter H. Schiff of counsel), for New York State Department of Health, respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Exiles of the Court of Appeals (22 NYCRR 500.4), order reversed, with costs, petition granted, respondents’ determination denying petitioner’s medical assistance application annulled and respondents directed to disregard the income and resources of the subject irrevocable trust in determining petitioner’s entitlement to medical assistance, for the reasons stated in the dissent at the Appellate Division (5 AD3d 1116, 1117-1119 [2004]).

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


text:
    Fred DiFranco, Respondent, v Margareite Essig, Respondent, and Thornwood Fire District, Appellant, et al., Defendants.
    Submitted June 14, 2004;
    decided September 2, 2004
   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 and is not an order of the type provided for in CPLR 5602 (a) (2).


text:
    In the Matter of Franklin Leonard, Appellant, v Margaret Dushantinski, as Inmate Records Coordinator, Auburn Correctional Facility, et al., Respondents.
    Submitted June 14, 2004;
    decided September 2, 2004
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]). Motion for poor person relief dismissed as academic.


text:
    Leonard J. Levenson et al., Respondents, v Jonathan Lippman et al., Appellants.
    Submitted August 16, 2004;
    decided September 2, 2004
   Motion by City of New York for leave to appear amicus curiae on the appeal herein granted to the extent that the proposed brief is accepted as filed. Nineteen additional copies of the brief may be filed and two additional copies served within 10 days.

Chief Judge Kaye taking no part.


text:
    Quantum Corporate Funding, Ltd., Respondent, v Westway Industries, Inc., Defendant, and United States Fidelity and Guaranty Company, Appellant.
    Submitted August 2, 2004;
    decided September 2, 2004
   Motion by Surety Association of America for leave to appear amicus curiae on the appeal herein granted to the extent that the proposed brief is accepted as filed. Twenty copies of a brief may be filed and three copies served within 10 days.


text:
    17 East 89th Street Tenants, Inc., Respondent, v Zion Tsabbar, Appellant.
    Submitted June 17, 2004;
    decided September 2, 2004
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed Supreme Court’s order and judgment granting relief on the ejectment cause of action and expressly severing that cause of action, denied; motion for leave to appeal otherwise dismissed upon the ground that the remaining portion of the Appellate Division order does not finally determine the action within the meaning of the Constitution.


text:
    State Farm Mutual Automobile Insurance Co., Appellant, v Robert Mallela et al., Respondents.
    Submitted August 10, 2004;
    decided September 2, 2004
   Certification of question by the United States Court of Appeals for the Second Circuit, pursuant to section 500.17 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.17), accepted and the issues presented are to be considered after briefing and argument.

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


text:
    In the Matter of Robert M. Winn, as Special Prosecutor for the County of Rensselaer, et al., Respondents, v Rensselaer County Conditional Release Commission, Respondent, and Mary Beth Anslow, Appellant.
    Submitted August 3, 2004;
    decided September 2, 2004
   Motion for leave to appeal dismissed upon the ground that the issues presented have become moot.


text:
    Conquest Cleaning Corp., Appellant, v New York City School Construction Authority, Respondent.
    Submitted June 28, 2004;
    decided September 7, 2004
   Motion, insofar as it seeks leave to appeal from the Appellate Division order of affirmance, denied; motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument, leave to appeal to the Court of Appeals and renewal, dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution.


text:
    Ronald Holmes, Appellant, v New York City Housing Authority et al., Respondents.
    Submitted July 12, 2004;
    decided September 7, 2004
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    JMD Holding Corp., Respondent, v Congress Financial Corporation, Appellant, et al., Defendant.
    Submitted July 6, 2004;
    decided September 7, 2004
   Motion to dismiss appeal denied.


text:
    In the Matter of Melissa S., Petitioner, v Frederick T., Respondent. Mitch Kessler, Nonparty Appellant.
    Submitted June 21, 2004;
    decided September 7, 2004
   Motion for leave to appeal dismissed upon the ground that appellant, having taken no appeal to the Appellate Division, may not appeal to the Court of Appeals from the Appellate Division order of affirmance (see Burrows v Burrows, 97 NY2d 695 [2002]; Dellavalle v Howell Co., 93 NY2d 953 [1999]).


text:
    In the Matter of Charlie Mixon, Appellant, v Frank J. Clark, as Erie County District Attorney, et al., Respondents.
    Submitted June 21, 2004;
    decided September 7, 2004
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that dismissed the appeal taken to that Court, dismissed upon the ground that no motion for leave to appeal lies from an Appellate Division order dismissing an appeal from a decision of Supreme Court (see CPLR 5602); motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that denied poor person relief, dismissed upon the ground that such part of the order does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Ocwen Federal Bank FSB, Respondent, v DeLuxe Building Systems, Appellant, et al., Defendant.
    Submitted June 28, 2004;
    decided September 7, 2004
   Motion for leave to appeal dismissed upon the ground that the order of the Appellate Division from which leave is sought does not finally determine the action within the meaning of the Constitution. The judgment, the appeal from which was dismissed by the Appellate Division, entered pursuant to the parties’ stipulation, does not constitute a final judgment because the stipulation was entered into “without prejudice” (see Herzfeld & Stern v Beck, 82 NY2d 789 [1993]; Russo v New York Life Ins. Co., 95 NY2d 847 [2000]).


text:
    Anthony J. Rella et al., Appellants, v Leo J. Greco et al., Respondents.
    Submitted June 28, 2004;
    decided September 7, 2004
   Motion for leave to appeal dismissed upon the ground that the judgment entered pursuant to the parties’ stipulation does not finally determine the action within the meaning of the Constitution.


text:
    South Road Associates, LLC, Appellant, v International Business Machines Corporation, Respondent.
    Submitted July 19, 2004;
    decided September 7, 2004
   Motion to limit issues raised on appeal denied.

Judge Rosenblatt taking no part.


text:
    In the Matter of Sun Plaza Enterprises, Corp., Respondent, v Tax Commission of City of New York et al., Appellants.
    Submitted June 28, 2004;
    decided September 7, 2004
   Motion for leave to appeal dismissed upon the ground that the Appellate Division order, from which no appeal was properly taken or motion for leave to appeal was properly made, was the final appealable paper as its remittal was for purely ministerial action (see Karger, Powers of the New York Court of Appeals § 17, at 79-80 [3d ed]).


text:
    Wellington Tower Associates, L.P., Appellant, v New York First Avenue CVS, Inc., et al., Respondents.
    Submitted June 21, 2004;
    decided September 7, 2004
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain this motion for leave to appeal from the order of the Appellate Division entered in this proceeding commenced in the Civil Court of the City of New York (NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]).


text:
    Stanley E. Morris et al., Appellants, v Greenburgh Central School District No. 7, Respondent, et al., Defendant.
    Submitted July 6, 2004;
    decided September 9, 2004
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    Ada Rodriguez, Appellant, v Trustees of Columbia University in the City of New York et al., Respondents.
    Submitted July 12, 2004;
    decided September 9, 2004
   Motion for reargument denied [see 2 NY3d 792]. Motion for resettlement, clarification and renewal denied. Motion, insofar as it seeks disqualification of Chief Judge Kaye and Judge R.S. Smith dismissed upon the ground that the Court of Appeals has no authority to entertain the motion made on nonstatutory grounds. The application seeking recusal is referred to the Chief Judge and to Judge R.S. Smith for their individual consideration and determination. Chief Judge Kaye and Judge R.S. Smith each respectively denies the referred motion for recusal.


text:
    [823 NE2d 443, 790 NYS2d 78]
    In the Matter of Richard Guertin.
    Decided September 14, 2004
   OPINION OF THE COURT

On the Court’s own motion, it is determined that Honorable Richard Guertin is suspended, with pay, effective immediately, from his office of Judge of the Middletown City Court, Orange County, pursuant to NY Constitution, article VI, § 22 and Judiciary Law § 44 (8).

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


text:
    [817 NE2d 818, 784 NYS2d 1]
    In the Matter of William Schafer et al., Appellants, v Edward Reilly et al., Respondents.
    Decided September 14, 2004

      APPEARANCES OF COUNSEL

      Certilman Balin Adler & Hyman, LLP, East Meadow (Wayne J. Schaefer of counsel), for appellants.
    Respondents precluded.
   OPINION OF THE COURT

Memorandum.

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

The Appellate Division upheld the Department’s denial of section 207-c benefits to petitioners—corrections officers employed by the Nassau County Sheriffs Department—based on erroneous application of a “heightened risk” standard. Eligibility for General Municipal Law § 207-c benefits is not contingent upon a covered municipal employee’s “demonstrating an injury sustained in the performance of special work related to the heightened risks and duties inherent in law enforcement” (Matter of Theroux v Reilly, 1 NY3d 232, 239 [2003]). Rather, “to be eligible for section 207-c benefits, a covered municipal employee need only prove,” as did petitioners in this case, “a ‘direct causal relationship between job duties and the resulting illness or injury’ ” (Matter of Theroux, 1 NY3d at 243-244).

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

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


text:
    Amanda Alba et al., Infants, Respondents, v Joseph Pastoressa, as Executor of the Estate of Angelo Riviezzo, et al., Appellants.
    Submitted August 30, 2004;
    decided September 14, 2004
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, First Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).


text:
    Cheryl Andrea et al., Appellants, v Arnone, Hedin, Casker, Kennedy and Drake, Architects and Landscape Architects, P.C. (Habiterra Associates), et al., Defendants, and Tiede-Zoeller, Inc., Respondent. (Action No. 1.) Mark Foster et al., Appellants, v Jamestown Public Schools et al., Respondents, et al., Defendants. (Action No. 2.)
    Submitted September 7, 2004;
    decided September 14, 2004
   Appeal, insofar as taken by Timothy Moran, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the two-Justice dissent at the Appellate Division is not in his favor.


text:
    Evangelia Caran, Appellant, v Hilton Hotels Corporation et al., Respondents.
    Submitted July 26, 2004;
    decided September 14, 2004
   Motion, insofar as it seeks leave to appeal from the Appellate Division order of affirmance, dismissed as untimely. The prior motion for leave to appeal made to the Appellate Division was untimely (Karger, Powers of the New York Court of Appeals § 73, at 452 [3d ed]); motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument or, alternatively, 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.


text:
    In the Matter of the Estate of Marion T. Fayo, Also Known as Marion Fayo, Deceased. Rosalie Ceriale, Respondent; Margaret Fayo, Appellant.
    Submitted July 12, 2004;
    decided September 14, 2004
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that dismissed the appeal from the Surrogate’s Court’s decision, dismissed upon the ground that no motion for leave to appeal lies from an Appellate Division order dismissing an appeal from a decision (see CPLR 5602); motion for leave to appeal otherwise denied.


text:
    Arelis Guzman et al., Appellants, v Schiavone Construction Co. et al., Respondents, et al., Defendants.
    Submitted July 12, 2004;
    decided September 14, 2004
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument or, alternatively, 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:
    In the Matter of Lior A., Appellant. Commissioner of New York State Office of Mental Health, Respondent; Dov A., Intervenor-Appellant.
    Submitted September 7, 2004;
    decided September 14, 2004
   Appeal, insofar as taken from that portion of the December 2003 order of the Appellate Division that dismissed defendant’s appeal from County Court’s order of conditions, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved; appeal otherwise dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the remaining portion of the December 2003 Appellate Division order and the February 2004 Appellate Division order denying reargument do not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of William T. McTighe, Respondent, v Lisa Andel Pearl, Appellant. In the Matter of Lisa Andel Pearl, Appellant, v William T. McTighe, Respondent.
    Submitted August 9, 2004;
    decided September 14, 2004
   Motion by Ardeth L. Houde, Esq. to be relieved as law guardian for Ashley M. on the appeal herein granted to the extent that she is so relieved and Diane V. Bruns, Esq., c/o LoPinto, Schlather, Solomon & Salk, Esqs., 200 East Buffalo Street, EO. Box 353, Ithaca, New York 14851 is substituted in her stead.


text:
    Santiago Paris, Appellant, v Waterman Steamship Corporation, Respondent.
    Submitted July 19, 2004;
    decided September 14, 2004
   Motion, insofar as it seeks leave to appeal from the Appellate Division order that dismissed the appeal to that Court from Supreme Court’s order dismissing the action, denied; motion, insofar as it seeks leave to appeal from the Appellate Division order denying appellant’s motion for 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.


text:
    The People of the State of New York, Respondent, v Thomas Hanley, Appellant.
    Submitted August 9, 2004;
    decided September 14, 2004
   Motion for assignment of counsel granted and Gary T. Kelder, Esq., EO. Box 403, Manlius, New York 13104-0403 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Man Xing Guo, Appellant.
    Submitted September 7, 2004;
    decided September 14, 2004
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies as of right from the order of the Appellate Division entered in this criminal proceeding (see NY Const, art VI, § 3 [b]; CPLR 5601; CPL 450.90).


text:
    Nello Trizzano et al., Appellants, v Allstate Insurance Company et al., Respondents.
    Submitted July 12, 2004;
    decided September 14, 2004
   Motion, insofar as it seeks leave to appeal as against Allstate Insurance Company, denied; motion for leave to appeal otherwise dismissed upon the ground that, as to Marinaccio & Azznara, the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Bassuk Bros., Inc., Appellant, v Utica First Insurance Company, Defendant and Third-Party Plaintiff-Respondent. Legion Insurance Company, Third-Party Defendant-Appellant.
    Submitted July 26, 2004;-
    decided September 21, 2004
   Motion for leave to appeal dismissed upon the ground that the Appellate Division order, not the Supreme Court judgment entered on remand, is the final appealable paper in this action (see CPLR 5611).


text:
    In the Matter of Blossom View Nursing Home, Appellant, v Antonia C. Novello, M.D., as Commissioner of Health of State of New York, et al., Respondents.
    Submitted July 26, 2004;
    decided September 21, 2004
   Motion by the New York State Health Facilities Association, Inc. for leave to appear amicus curiae on the motion for leave to appeal herein granted and the affirmation is accepted as filed.


text:
    In the Matter of Blossom View Nursing Home, Appellant, v Antonia C. Novello, M.D., as Commissioner of Health of State of New York, et al., Respondents.
    Submitted August 2, 2004;
    decided September 21, 2004
   Motion by the New York Association of Homes and Services for the Aging for leave to appear amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    In the Matter of Crown Communication New York, Inc., Respondent, v Department of Transportation of the State of New York, Respondent, and City of New Rochelle et al., Appellants. James Cavanaugh, Intervenor-Respondent. (Matter No. 1.) In the Matter of Crown Communication New York, Inc., Respondent, v Department of Transportation of the State of New York, Respondent, and City of New Rochelle et al., Appellants. (Matter No. 2.)
    Submitted September 13, 2004;
    decided September 21, 2004
   Motion by New York State Conference of Mayors and Municipal Officials 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 Ernest Demel, Appellant, v Northern Telecom, Inc., et al., Respondents. Workers’ Compensation Board, Respondent.
    Submitted June 21, 2004;
    decided September 21, 2004
   Motion, insofar as it seeks leave to appeal from the Appellate Division order that denied appellant’s motion for reargument or, alternatively, 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.


text:
    In the Matter of Francisco Felix, Respondent, v New York City Department of Citywide Administrative Services et al., Appellants.
    Submitted September 7, 2004;
    decided September 21, 2004
   Motion by District Council 37, American Federation of State, County and Municipal Employees, AFL-CIO 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 Adrian Hernandez, Appellant, v Donald Selsky, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
    Submitted July 19, 2004;
    decided September 21, 2004
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    In the Matter of Eric Kelly, Appellant, v J. Michael Bruhn, as County Judge of Ulster County Court, et al., Respondents.
    Submitted June 28, 2004;
    decided September 21, 2004
   Motion for reconsideration of this Court’s May 11, 2004 dismissal order denied [see 2 NY3d 793]. Motion for leave to appeal denied.


text:
    James Nares, Respondent, et al., Plaintiff, v M & W Waterproofing et al., Appellants.
    Submitted July 6, 2004;
    decided September 21, 2004
   Motion by NTJ Associates for leave to appeal from the March 9, 2004 Appellate Division order dismissed upon the ground that the order does not finally determine the action within the meaning of the Constitution (see Whitfield v City of New York, 90 NY2d 777, 780-781 [1997]). Motion by M & W Waterproofing for leave to appeal from the April 8, 2004 amended judgment of Supreme Court dismissed as untimely (see Whitfield v City of New York, 90 NY2d 777, 781 [1997]).


text:
    In the Matter of Nassau County Grand Jury Subpoena Duces Tecum Dated June 24, 2003. “Doe Law Firm” et al., Appellants; Eliot Spitzer, as Attorney General of the State of New York, Respondent.
    Submitted July 19, 2004;
    decided September 21, 2004
   Motion for leave to appeal denied as unnecessary.


text:
    New Street Ice Company, Inc., Appellant, v New York City Department of Business Services et al., Respondents.
    Submitted July 26, 2004;
    decided September 21, 2004
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Supreme Court’s denial of appellant’s motion to amend the complaint, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    The People of the State of New York, Respondent, v Abdel Hamilton, Appellant.
    Submitted September 13, 2004;
    decided September 21, 2004
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 45 West 45th Street, 7th Floor, New York, NY 10036 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Javier Rodriguez, Appellant.
    Submitted September 7, 2004;
    decided September 21, 2004
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no civil appeal lies as of right from the order of the Appellate Division entered in this criminal proceeding (see NY Const, art VI, § 3 [b]; CPLR 5601; CPL 450.90).


text:
    The People of the State of New York ex rel. James Robinson, Appellant, v Superintendent of Clinton Correctional Facility et al., Respondents.
    Submitted July 26, 2004;
    decided September 21, 2004
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


text:
    Arlene Toefer et al., Appellants, v Long Island Rail Road, Defendant and Third-Party Plaintiff-Respondent. Jana Construction Co., Inc., et al., Third-Party Defendants-Respondents, et al., Third-Party Defendants. (And a Fourth-Party Action.)
    Submitted September 7,. 2004;
    decided September 21, 2004
   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:
    [819 NE2d 990, 786 NYS2d 374]
    The People of the State of New York, Respondent, v Rene Valencia, Appellant.
    Argued September 9, 2004;
    decided October 14, 2004
    APPEARANCES OF COUNSEL

      Laura R. Johnson, New York City {Kerry Elgarten of counsel), for appellant.

      Robert T Johnson, District Attorney, Bronx {Jonathan Zucker, Joseph N. Ferdenzi and Nancy D. Killian of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

In Supreme Court, Bronx County, defendant entered a guilty plea to a felony charge of criminal sale of a controlled substance in or near school grounds. Pursuant to the plea agreement, defendant entered a drug treatment program. In entering the agreement, defendant was told that if he successfully completed the program, he would have the opportunity to withdraw his plea, plead guilty to a misdemeanor drug possession charge and receive a sentence of time served. However, if he failed to comply with the program’s rules, committed any further crime, or left treatment before completing the program, he would be in violation of the plea agreement and sentenced as a second felony offender to an indeterminate prison term of 5 to 10 years.

Upon allegations that defendant violated the plea agreement, the sentencing court conducted an inquiry and sentenced defendant to prison. Defendant had entered four different treatment programs. He allegedly left one because of language difficulties, another because of an accident and a third because of an altercation with another resident.

Defendant left the last treatment facility without authorization, knowing that he would not be allowed to return. He was returned to court on a bench warrant several weeks later. The sentencing court determined that defendant violated the plea agreement and sentenced him to 5 to 10 years in prison. The Appellate Division unanimously affirmed, and a Judge of this Court granted defendant leave to appeal.

We agree with the Appellate Division’s conclusion that the sentencing court conducted an inquiry sufficient to determine that a violation of the plea agreement occurred. It is well settled that “the sentencing process . . . must satisfy the requirements of the Due Process Clause” (Gardner v Florida, 430 US 349, 358 [1977]; People v Outley, 80 NY2d 702, 712 [1993]). Accordingly, this Court has held with regard to alleged violations of plea agreements, that to satisfy due process, a sentencing court must, prior to imposing the prison alternative pursuant to a plea agreement, conduct an inquiry sufficient to conclude that a violation of the plea agreement occurred (see People v Outley, 80 NY2d 702 [1993]).

Relying on the recent Second Circuit decision in Torres v Berbary (340 F3d 63, 71 [2d Cir 2003]), defendant argues that when an issue is raised as to an alleged violation of a plea agreement, due process requires the sentencing court to conduct an evidentiary hearing and find by a preponderance of the evidence that defendant violated the plea agreement before resentencing defendant to prison. Here, defendant does not dispute that he committed acts that constituted violations of the plea agreement.

In Torres, defendant disputed the court’s conclusion that he committed acts that constituted a violation of his plea agreement by selling drugs in the treatment facility (Torres, 340 F3d at 65-66). Also, the sentencing court in Torres based its decision that defendant violated the plea agreement solely on a report grounded in speculation and uncorroborated statements. CTorres, 340 F3d at 66-67.) Here, however, defendant admitted that he committed acts that constituted violations of the plea agreement.

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

Order affirmed in a memorandum.


text:
    In the Matter of Juan Manuel Ortiz Alvear, Appellant, v William Phillips, Respondent.
    Submitted August 9, 2004;
    decided October 14, 2004
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Annette B. Orange County Department of Social Services, Respondent; Joseph B., Appellant.
    Submitted September 20, 2004;
    decided October 14, 2004
   Motion for appointment of Susan M. Dampio, Esq., 23 Old Sprain Road, Ardsley, New York 10502-2017, as law guardian for Annette B. on the appeal herein granted.


text:
    In the Matter of Antwane Carlisle, Appellant, v Glenn S. Goord, as Commissioner of New York State Department of Correctional Services, Respondent.
    Submitted August 23, 2004;
    decided October 14, 2004
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    In the Matter of Jason A. Chabot, Appellant, v Lisa A. Chabot, Respondent.
    Submitted August 16, 2004;
    decided October 14, 2004
   Motion for leave to appeal dismissed upon the ground that appellant is not a party aggrieved (see CPLR 5511).


text:
    City of New York, Respondent, v Verizon New York, Inc., et al., Appellants.
    Submitted October 4, 2004;
    decided October 14, 2004
   Motion by Time Warner Cable of New York City for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Robert Fleming et al., Appellants, v Rudolph W. Giuliani et al., Respondents.
    Submitted September 27, 2004;
    decided October 14, 2004
   Motion by Lieutenants Benevolent Association of the City of New York for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    David Lang, Appellant, v Hanover Insurance Company et al., Respondents.
    Submitted October 4, 2004;
    decided October 14, 2004
   Motion by CCC Insurance Company, Ltd. et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Donna McGrath et al., Respondents, v Toys “R” Us, Inc., Appellant.
    Submitted October 4, 2004;
    decided October 14, 2004
   Motion by New York County Lawyers’ Association for leave to file a brief amicus curiae on consideration of the certified question herein granted and the proposed brief is accepted as filed.


text:
    Donna McGrath et al., Respondents, v Toys “R” Us, Inc., Appellant.
    Submitted September 20, 2004;
    decided October 14, 2004
   Motion by City of New York for leave to file a brief amicus curiae on consideration of the certified question herein granted and the proposed brief is accepted as filed.


text:
    Donna McGrath et al., Respondents, v Toys “R” Us, Inc., Appellant.
    Submitted September 20, 2004;
    decided October 14, 2004
   Motion by Anti-Discrimination Center of Metro New York, Inc. 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.


text:
    The People of the State of New York, Respondent, v Richard Aiken, Appellant.
    Submitted September 20, 2004;
    decided October 14, 2004
   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 Stephen G. Schulz, Appellant.
    Submitted October 4, 2004;
    decided October 14, 2004
   Motion for assignment of counsel granted and William E. Hellerstein, Esq., Second Look Program Clinic, Brooklyn Law School, 250 Joralemon Street, Brooklyn, New York 11201 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York ex rel. John Trisvan, Appellant, v Roy A. Girdich, as Superintendent of Upstate Correctional Facility, Respondent.
    Submitted August 16, 2004;
    decided October 14, 2004
   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 poor person relief dismissed as academic.


text:
    Quantum Corporate Funding, Ltd., Respondent, v Westway Industries, Inc., Defendant, and United States Fidelity and Guaranty Company, Appellant.
    Submitted October 4, 2004;
    decided October 14, 2004
   Motion by Subcontractors Trade Association, Inc. for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Twenty copies of the brief may be filed and three copies served within 10 days.


text:
    In the Matter of Paul Smith et al., Appellants, v Town of Men-don et al., Respondents.
    Submitted October 4, 2004;
    decided October 14, 2004
   Motion by Eliot Spitzer, Attorney General, State of New York, for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    In the Matter of Paul Smith et al., Appellants, v Town of Men-don et al., Respondents.
    Submitted October 4, 2004;
    decided October 14, 2004
   Motion by Association of Towns of the State of New York, et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    U.S. Underwriters Insurance Company, Respondent-Appellant, v City Club Hotel, LLC, et al., Appellants-Respondents, et al., Respondents.
    Submitted September 27, 2004;
    decided October 14, 2004
   Motion by Complex Insurance Claims Litigation Association for leave to file a brief amicus curiae on consideration of the certified question herein granted and the proposed brief is accepted as filed. Twenty copies of the brief may be filed and three copies served within 10 days.


author: Memorandum. R.S. Smith, J. (dissenting).

text:
    [819 NE2d 991, 786 NYS2d 375]
    State of New York, Respondent-Appellant, v Speonk Fuel, Inc.,. Appellant-Respondent, et al., Defendants.
    Argued September 8, 2004;
    decided October 19, 2004

      APPEARANCES OF COUNSEL

      Nicholas J. Damadeo, P.C., Smithtown (Nicholas J. Damadeo of counsel), for appellant-respondent.

      Eliot Spitzer, Attorney General, Albany (Edward Lindner, Caitlin J. Halligan, Daniel Smirlock and Patrick Barnett-Mulligan of counsel), for respondent-appellant.
   OPINION OF THE COURT

Memorandum.

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

Defendant Local Wrench Service Station, Inc. immediately preceded defendant Speonk Fuel, Inc. as the owner and operator of a gasoline service station and its associated underground petroleum storage system in East Quogue, New York. On October 24, 1985, Local Wrench’s storage system, which included five underground gasoline tanks, was tested for tightness. One of these five tanks—a 4,000-gallon unleaded gasoline tank—failed the tightness test. Subsequently, on January 22, 1986, the tank was removed from the ground and found to have a hole approximately one eighth of an inch in diameter, causing its abandonment. A representative of the New York State Department of Environmental Conservation witnessed the defective tank’s removal. Having determined that it was not possible to clean up all the oil-contaminated soil resulting from the tank’s past leakage, on January 24, 1986 DEC advised Local Wrench to install groundwater monitoring wells. DEC warned that if Local Wrench failed to investigate and remedy groundwater contamination attributable to the leak, DEC would undertake this work through contractors and seek reimbursement and penalties pursuant to article 12 of the Navigation Law, commonly called the Oil Spill Act.

At the same time as these events were unfolding, Local Wrench was negotiating to sell its gasoline service station, the associated underground petroleum storage system and the underlying real property to Speonk and its president, Thomas H. Mendenhall. On January 8, 1986—about two weeks before the defective tank was permanently removed from service— Speonk contracted to purchase the service station and the storage system, and Mendenhall contracted to purchase the real property. On March 12, 1986—roughly seven weeks after the defective tank was permanently removed—Speonk acquired title to the service station and the storage system, and Mendenhall acquired title to the real property by bargain and sale deed.

Mendenhall had visited the service station on October 24, 1985, and so observed the tank tightness testing. Moreover, he acknowledges that after the closings on March 12, 1986, his attorney and the attorney for Local Wrench’s owner “discuss[ed]” remedial work and potential insurance coverage with respect to the oil spill with “State representatives.” Speonk never agreed to undertake any remedial work at the service station site. Neither did Local Wrench, which went out of business and whose owner subsequently left the country. DEC hired contractors to investigate, clean up and remove the oil spill and paid them, in part, with moneys from the Environmental Protection and Oil Spill Compensation Fund established under article 12. DEC disbursed moneys for cleanup and removal intermittently from April 27, 1987 through September 30, 1996. On September 26, 1996, the State commenced this cost recovery action pursuant to the Oil Spill Act against Local Wrench and Speonk, seeking to recover cleanup and removal costs, plus interest.

In its initial decision in this litigation, the Appellate Division concluded that the successor owner of a system from which a discharge has occurred is liable when contamination remains after purchase (273 AD2d 681 [3d Dept 2000]). In a subsequent decision, the Appellate Division held that the State’s claims under article 12 accrue and the six-year limitation period begins to run each time the Fund makes a payment; and that a discharger is not permitted to challenge the reasonableness of the Fund’s expenditures (307 AD2d 59 [3d Dept 2003]). We granted Speonk and the State leave to appeal from the latter Appellate Division order, thereby also bringing up the earlier order for our review. We now affirm.

The Legislature enacted the Oil Spill Act to prevent the unregulated discharge of petroleum and to accomplish speedy, effective cleanups when spills occur (see Navigation Law § 171; State of New York v Stewart’s Ice Cream Co., 64 NY2d 83, 86 [1984]). Navigation Law § 181 (1) provides that “[a]ny person who has discharged petroleum shall be strictly liable, without regard to fault, for all cleanup and removal costs and all direct and indirect damages, no matter by whom sustained” (emphasis added). While section 181 (1) plainly sets forth the applicable standard of liability, “[a]ny person who has discharged petroleum,” the category of persons strictly liable, is unspecified there or elsewhere in the Oil Spill Act. Navigation Law § 172 (8), however, defines the word “discharge” as “any intentional or unintentional action or omission resulting in the releasing, spilling, leaking, pumping, pouring, emitting, emptying or dumping” of petroleum into the state’s waters.

In State of New York v Green (96 NY2d 403 [2001]), which was decided after the Appellate Division’s decision on liability in this case, we read sections 181 (1) and 172 (8) together. Further, we construed these provisions liberally, consistent with the purposes of the Oil Spill Act, so as to identify a basis for resolving responsibility as a discharger in light of the unique facts and circumstances of a particular spill. We predicated liability on a potentially responsible party’s capacity to take action to prevent an oil spill or to clean up contamination resulting from a spill.

The State argues that Speonk had the “ability to control events at the spill site” within the meaning of Green because Speonk might have negotiated a purchase contract requiring Local Wrench either to remedy groundwater and soil contamination at the service station site, or to provide an escrow fund for this purpose as a condition of closing. While we decline to specify any particular action that Speonk might have undertaken, we consider it sufficient for purposes of liability here that, with knowledge of its vendor’s discharge of oil and the need for cleanup, Speonk did nothing.

Next, in Stewart’s Ice Cream we were faced, as we are here, with a situation where the Fund made multiple payments over an extended period of time although, unlike the circumstances in this case, all the payments were made within the six years prior to commencement of the litigation. We “reject[ed] the invitation to formulate a variant accrual date” under the Oil Spill Act in Stewart’s Ice Cream, adhering instead to the “traditional view” that a new, separate cause of action accrues each time a payment is made (64 NY2d at 88). We reaffirm that holding here.

Finally, we note that section 181 (1) provides that a discharger shall be strictly liable for “all cleanup and removal costs ... no matter by whom sustained” (emphasis added). Nowhere in the Oil Spill Act is a discharger afforded any right to contest the reasonableness of the costs incurred by the Fund in an action brought by the State to recoup these moneys. A discharger is not, however, divested by the Oil Spill Act of whatever rights it may have under article 78 of the CPLR to challenge the State’s actions with respect to cleanup and removal as arbitrary and capricious or an abuse of discretion (cf. United States v Hyundai Merchant Mar. Co., Ltd., 172 F3d 1187, 1191 [9th Cir 1999] [holding that federal Oil Pollution Act does not “restrict the recovery of the United States to costs that were prudent, or necessary, or reasonable” so long as government action was not arbitrary or capricious], cert denied 528 US 963 [1999]).

R.S. Smith, J. (dissenting).

I dissent from the Court’s holding that Speonk was a “person who has discharged petroleum” within the meaning of Navigation Law § 181 (1), because I do not believe those words can describe a person who, like Speonk, had nothing whatever to do with causing petroleum to be discharged.

In State of New York v Green (96 NY2d 403 [2001]), we held that a landowner who could have prevented the discharge of petroleum, but did not, was a “person who has discharged petroleum” within the meaning of the statute. This was a broad interpretation of the language, but not an unreasonable one, in the context of a statute that imposes liability without fault.

But it is quite another thing to apply the words “person who has discharged petroleum” to a company in the position of Speonk, which had no interest in or control over either the real property or the petroleum storage system at the time the discharge occurred. While failing to prevent a petroleum discharge may in a sense be the equivalent of discharging petroleum, failure to clean up the discharge afterwards is not. If the Legislature had intended to impose liability for failure to clean up, it would have said so.

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

Order affirmed, without costs, in a memorandum.


text:
    In the Matter of the Claim of Daniel T. Fronczak, Appellant. Commissioner of Labor, Respondent.
    Submitted October 4, 2004;
    decided October 19, 2004
   Motion to vacate this Court’s August 9, 2004 dismissal order denied [see 3 NY3d 669].


text:
    [819 NE2d 995, 786 NYS2d 379]
    Mary Miceli, Respondent, v State Farm Mutual Automobile Insurance Company, Appellant.
    Argued September 14, 2004;
    decided October 21, 2004

      APPEARANCES OF COUNSEL

      Rivkin Radler LLP, Uniondale (Stuart M. Bodoff, Evan H. Krinick and Cheryl F. Korman of counsel), and Hagelin & Bischof, LLC, for appellant.

      Barth, Sullivan & Behr, LLP, Buffalo (Laurence D. Behr of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and plaintiffs motion for summary judgment denied.

Barely five months ago, in Brill v City of New York (2 NY3d 648 [2004]), this Court reversed an award of summary judgment for defendant, without considering its merit, on the ground that the motion, made more than 120 days after note of issue was filed, failed to comply with the statutory requirement that “good cause” be shown for the late filing. We determined that, if the merit of the motion itself constituted good cause, the statutory deadline would be circumvented and the practice of delaying such motions until the eve of trial encouraged. As the Legislature clearly specified, summary judgment motions should be timely made, or good cause shown.

As we made clear in Brill, and underscore here, statutory time frames—like court-ordered time frames (see Kihl v Pfeffer, 94 NY2d 118 [1999])—are not options, they are requirements, to be taken seriously by the parties. Too many pages of the Reports, and hours of the courts, are taken up with deadlines that are simply ignored.

Plaintiff does not dispute that her motion for summary judgment was made more than 120 days after note of issue was filed, and offers no excuse for her failure to comply with CPLR 3212 (a), arguing only that her motion is meritorious. This was precisely defendant’s position before us in Brill. To countenance plaintiff’s position here would require us to overturn our own recent precedent. This we refuse to do, and we therefore reverse the order of the Appellate Division awarding summary judgment to plaintiff, without considering the merit of the motion.

Chief Judge Kaye and Judges Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur in memorandum; Judge G.B. Smith concurs on constraint of Brill v City of New York (2 NY3d 648 [2004]).

Order reversed, etc.


text:
    [820 NE2d 276, 786 NYS2d 798]
    Randy J. Schaal, as Trustee in Bankruptcy on Behalf of Nancy Montero and Another, Appellant, v City of Utica et al., Respondents, et al., Defendant.
    Decided October 21, 2004

      APPEARANCES OF COUNSEL

      Gustave J. DeTraglia, Jr., Utica, for appellant.

      Linda Sullivan Fatata, Corporation Counsel, Utica (Joseph P. Giruzzi of counsel), for City of Utica, respondent.

      Costello, Cooney & Fearon, PLLC, Syracuse (Brendan J. Reagan of counsel), for 200 Genesee Street, Inc. and another, respondents.
   OPINION OF THE COURT

Memorandum.

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

The Appellate Division correctly determined that plaintiffs speculative assertions failed to raise an issue of fact with respect to defendant City of Utica’s alleged creation of a dangerous sidewalk condition. Similarly, plaintiff adduced no evidence in support of the theory that defendant hotel had a duty to maintain the public sidewalk adjoining its property because the hotel used the sidewalk for a special purpose (see generally Poirier v City of Schenectady, 85 NY2d 310, 315 [1995]). In light of the completion of discovery in an earlier action involving the same allegations and parties and plaintiffs failure to request additional discovery in this action, summary judgment was not prematurely granted (see Chemical Bank v PIC Motors Corp., 58 NY2d 1023, 1026 [1983]).

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

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


text:
    [819 NE2d 997, 786 NYS2d 381]
    The People of the State of New York, Respondent, v Francisco Carranza, Appellant.
    Argued September 13, 2004;
    decided October 21, 2004
    APPEARANCES OF COUNSEL

      Mark Diamond, New York City, for appellant.

      Francis D. Phillips, II, District Attorney, Goshen (.Daniel M. Reback of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant argues that statements he made to a police officer without a lawyer present should have been suppressed, relying on the rule we announced in People v Arthur (22 NY2d 325, 329 [1968]): “[0]nce the police know or have been apprised of the fact that the defendant is represented by counsel or that an attorney has communicated with the police for the purpose of representing the defendant, the accused’s right to counsel attaches.” We reject defendant’s argument because the requirements of the Arthur rule were not met here; the police department questioning defendant had not been informed that an attorney represented him or sought to communicate with the police on his behalf.

At the time he committed the murder involved in this case, defendant had another, unrelated case pending in which he had been assigned a lawyer from the Legal Aid Society. After hearing that defendant was wanted in this case, the Legal Aid lawyer faxed letters to the New York State Police and to the Orange County District Attorney, saying that the defendant “hereby exercises his rights to remain silent and to counsel.” The lawyer added: “He will be making no statements.” The lawyer did not write or speak to either of the two local police departments that arrested and questioned defendant.

On the same day the lawyer’s letters were sent, the Monticello Police arrested defendant and told the Newburgh Police of the arrest. Detective Zapata of the Newburgh Police traveled to Monticello and brought defendant back to Newburgh. Defendant waived his Miranda rights and made statements to Zapata before, during and after the Monticello-Newburgh journey. It is undisputed that Zapata knew nothing of the lawyer’s communications to the District Attorney and the State Police.

On these facts, the Arthur rule does not apply. A lawyer may not prevent the police from questioning a suspect by communicating only with law enforcement agencies not involved in the investigation (cf. People v Pinzon, 44 NY2d 458, 463 [1978] [calls to police department central switchboard sufficient to put police on notice]). Where a police officer does not know and cannot be charged with knowledge that the suspect has a lawyer, the officer has no obligation to refrain from asking questions.

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

Order affirmed in a memorandum.


text:
    In the Matter of Yvonne Adamson, Appellant, v Marshal of the City of New York et al., Respondents.
    Submitted August 23, 2004;
    decided October 21, 2004
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for 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:
    Argo Corporation et al., Appellants, v Greater New York Mutual Insurance Company, Respondent.
    Submitted October 18, 2004;
    decided October 21, 2004
   Motion by Catholic Health Services of Long Island 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 Joseph Brenner, Appellant, v Kenneth A. Davis, as Justice of the Supreme Court of the State of New York, Respondent.
    Submitted August 9, 2004;
    decided October 21, 2004
   Motion, insofar as it seeks leave to appeal from the Appellate Division order dismissing the petition, denied; 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.


text:
    Quintin Xavier Drakeford, Appellant, v City of New York, Respondent.
    Submitted August 2, 2004;
    decided October 21, 2004
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


text:
    Paul Harris, Appellant, v Theodore Wilson et al., Respondents.
    Submitted August 2, 2004;
    decided October 21, 2004
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that dismissed the appeal from that portion of Supreme Court’s order that denied appellant’s CPLR 3102 (a) motion, denied; motion for leave to appeal otherwise dismissed upon the ground that the remaining portion of the Appellate Division order does not finally determine an action or proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Leonid Levit, Appellant, v Allstate Insurance Company et al., Respondents. (And a Third-Party Action.)
    Submitted August 30, 2004;
    decided October 21, 2004
   Motion, insofar as it seeks leave to appeal as against the Sweetbaum defendants, dismissed upon the ground that as to those parties, the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.

Judge Rosenblatt taking no part.


text:
    Kenneth J. Ligreci, Appellant, v Teresa Ligreci, Also Known as Teresa Doldo, Respondent.
    Submitted August 16, 2004;
    decided October 21, 2004
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed that portion of Supreme Court’s order that denied appellant’s motion to vacate or modify 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. Motion for poor person relief dismissed as academic.


text:
    In the Matter of the Estate of Edmund J. McCormick, Deceased. Suzanne V. McCormick, Appellant; Bankers Trust Company et al., Respondents.
    Submitted August 16, 2004;
    decided October 21, 2004
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that it does not lie, appellant previously having appealed to the Court of Appeals from the Appellate Division orders from which she now has taken an appeal (lv dismissed 3 NY3d 656 [2004]). 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.


text:
    The People of the State of New York, Respondent, v Richard Champion, Appellant.
    Submitted August 16, 2004;
    decided October 21, 2004
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no appeal lies as of right from the order of the Appellate Division entered in this criminal proceeding (see NY Const, art VI, § 3 [b]; CPLR 5601; GPL 450.90). Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York, Respondent, v Byron Robinson, Appellant.
    Submitted October 18, 2004;
    decided October 21, 2004
   Motion for assignment of counsel granted and David C. Schopp, Esq., Legal Aid Bureau of Buffalo, Inc., 237 Main Street, Suite 1602, Buffalo, New York 14203-2723 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York ex rel. Tyrone L. Jackson, Appellant, v Warden, Bernard B. Kerik, Respondent. The People of the State of New York ex rel. Tyrone L. Jackson, Appellant, v Warden, Mark Farsi, Respondent. (And Another Proceeding.)
    Submitted August 30, 2004;
    decided October 21, 2004
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as denied appellant’s motion to substitute different assigned counsel, dismissed upon the ground that such portion of the order does not finally determine the proceedings within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York ex rel. Richard F. Mills, Appellant, v Gary Maha, as Sheriff of Genesee County, Respondent.
    Submitted August 23, 2004;
    decided October 21, 2004
   Motion for leave to appeal dismissed upon the ground that it does not lie from the order of an individual Justice of the Appellate Division (see NY Const, art VI, § 3; CPLR 5602).


text:
    In the Matter of the Claim of Wanda Shambo, Respondent, v Orkin Pest Control et al., Appellants. Workers’ Compensation Board, Respondent.
    Submitted August 2, 2004;
    decided October 21, 2004
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument or, alternatively, 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.


text:
    Anthony D. Stevenson, Appellant, v State of New York, Respondent.
    Submitted October 4, 2004;
    decided October 21, 2004
   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:
    Andrew T. Watt, Jr., Individually and as President of Association, Inc., Local 3794, AFL-CIO, et al., Appellants, v Thomas Richardson, as President-Treasurer of GreeceRidge Exempt Firemen Association and as Administrator of Firefighters Insurance Fund of Greece Ridge Fire Department and Ridge Road Fire District, et al., Respondents.
    Submitted August 16, 2004;
    decided October 21, 2004
   Motion, insofar as it seeks leave to appeal from the Appellate Division order declaring the rights of the parties, denied; motion, insofar as it seeks leave to appeal from the Appellate Division order denying 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.


text:
    In the Matter of the Claim of Andrew Cacciatore, Appellant, v AJ Hunter Construction Company et al., Respondents. Workers’ Compensation Board, Respondent.
    Submitted August 2, 2004;
    decided October 26, 2004
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    Susan Gross, Also Known as Susan G. Berlly, Respondent, v Iris Sandow, Appellant.
    Submitted August 30, 2004;
    decided October 26, 2004
   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:
    In the Matter of Donald L. Hassig, Appellant, et al., Petitioners, v New York State Department of Environmental Conservation et al., Respondents.
    Submitted August 9, 2004;
    decided October 26, 2004
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed the denial of appellant’s motion to supplement the petition, dismissed upon the ground that such part of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of KSLM-Columbus Apartments, Inc., Respondent, v New York State Division of Housing and Community Renewal, Respondent-Appellant, and Westgate Tenants Association et al., Intervenors-Appellants-Respondents.
    Submitted August 23, 2004;
    decided October 26, 2004
   Motion by New York State Tenants & Neighbors Coalition, Inc., et al. for leave to file a brief amici curiae on the motions for leave to appeal herein granted and the brief is accepted as filed.


text:
    Janet Wohl Salemi, Appellant, v Robert Salemi, Respondent.
    Submitted June 1, 2004;
    decided October 26, 2004
   Motion for leave to appeal dismissed upon the ground that timely substitution has not been made (see CPLR 1021).


text:
    Julio Cesar Wilson Stajano et al., Appellants, v United Technologies Corporation et al., Respondents.
    Submitted August 30, 2004;
    decided October 26, 2004
   Motion, insofar as it seeks leave to appeal from that part of the March 2004 Appellate Division order that affirmed the dismissal of appellants’ complaint, denied; motion, insofar as it seeks leave to appeal from the remainder of that order and from the July 2004 Appellate Division order denying reargument or, in the alternative, leave to appeal to the Court of Appeals, dismissed upon the ground that the remainder of the March 2004 Appellate Division order and the July 2004 order do not finally determine the action within the meaning of the Constitution.


text:
    [820 NE2d 859, 787 NYS2d 215]
    Allen Hyman et al., Appellants, v Queens County Bancorp, Inc., Doing Business as Queens County Savings Bank, Respondent.
    Decided November 18, 2004

      APPEARANCES OF COUNSEL

      David E Kownacki, P.C., New York City {David E Kownacki and Brad H. Rosken of counsel), for appellants.

      Perez, Furey & Varvaro, Uniondale {James F. Furey of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

In this personal injury action, plaintiffs, responding to defendant’s motion for summary judgment, alleged that defendant’s premises violated city and state building code requirements regarding stairway handrails, relying on those alleged violations as evidence of a dangerous or defective condition on the premises. Plaintiffs claimed that the absence of a handrail on both sides of the stairway—the purported violation—was a proximate cause of plaintiff Alan Hyman’s fall down six or seven stairs.

A party opposing a motion for summary judgment must produce admissible evidence sufficient to require a trial on material questions of fact upon which the claim rests. Although plaintiffs argued that the absence of a second handrail violated city and state laws, not all buildings were subject to the cited codes and plaintiffs offered no evidence of what would have brought the subject building within the purview of those laws. Plaintiffs have thus failed to raise a triable issue of fact regarding the defective or dangerous condition of the premises, particularly in light of the certificate of occupancy issued to defendant in 1978 (see, by contrast, Lesocovich v 180 Madison Ave. Corp., 81 NY2d 982 [1993]). We also agree with the Appellate Division that plaintiffs failed to raise a triable issue with regard to causation, offering only speculation that in the circumstances presented the existing handrail was beyond reach.

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

Order affirmed, with costs, in a memorandum.


text:
    [821 NE2d 137, 787 NYS2d 711]
    Diane Bennett, Respondent, v New York City Transit Authority, Appellant.
    Decided November 18, 2004

      APPEARANCES OF COUNSEL

      Steve S. Efron, New York City (Renee L. Cyr of counsel), and Wallace D. Gossett for appellant.

      Lonuzzi & Woodland, LLP, Brooklyn (Rebecca Woodland of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative. Plaintiffs notice of claim provided information sufficient to apprise defendant New York City Transit Authority of the place, time and nature of her accident in order to “investigate, collect evidence and evaluate the merit of [the] claim” (see Brown v City of New York, 95 NY2d 389, 392 [2000]). Moreover, triable issues of fact exist whether the Transit Authority had constructive notice that a continuing water condition existed on the platform of its subway station and negligently failed to remedy it.

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

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


text:
    Joseph Dalton et al., Appellants-Respondents, v George Pataki, as Governor of the State of New York, et al., Respondents-Appellants, et al., Respondents. (Action No. 1.) Lee Karr, Appellant-Respondent, v George Pataki, as Governor of the State of New York, et al., Respondents-Appellants, et al., Respondents. (Action No. 2.)
    Submitted October 25, 2004;
    decided November 18, 2004
   Motion by Daniel T. Warren for leave to file an amicus curiae brief on the appeals herein granted. Twenty copies of the brief may be filed and three copies served within 10 days.


text:
    In the Matter of the Estate of Blanche D. Hunter, Deceased. Chase Manhattan Bank, Respondent; Judith Chinello et al., Appellants.
    Submitted November 8, 2004;
    decided November 18, 2004
   Motion by New York Bankers Association for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Leonard J. Levenson et al., Respondents, v Jonathan Lippman, as Chief Administrator of the Courts, et al., Appellants.
    Submitted November 15, 2004;
    decided November 18, 2004
   Motion by New York County Lawyers’ Association for leave to appear amicus curiae on the appeal herein granted to the extent that the proposed brief is accepted as filed.

Chief Judge Kaye taking no part.


text:
    The People of the State of New York, Respondent, v William Rivera, Appellant. The People of the State of New York, Respondent, v Charles Daniels, Appellant. The People of the State of New York, Respondent, v Byron Robinson, Appellant.
    Submitted November 15, 2004;
    decided November 18, 2004
   Motion by New York State Association of Criminal Defense Lawyers et al. for leave to file a brief amici curiae on the appeals herein granted. Twenty copies of a brief may be filed and three copies served within 30 days.


text:
    The People of the State of New York, Respondent, v Robert Shulman, Appellant.
    Submitted October 25, 2004;
    decided November 18, 2004
   Motion to strike portions of appellant’s brief and to transfer the appeal to the Appellate Division denied.


text:
    U.S. Underwriters Insurance Company, Respondent-Appellant, v City Club Hotel, LLC, et al., Appellants-Respondents, et al., Respondents.
    Submitted November 15, 2004;
    decided November 18, 2004
   Motion by CNA Insurance Companies for leave to file a brief amicus curiae on consideration of the certified question herein granted and the proposed brief is accepted as filed.


text:
    [821 NE2d 934, 788 NYS2d 630]
    The People of the State of New York, Respondent, v John Waver, Also Known as John Weaver, Appellant.
    Decided November 23, 2004

      APPEARANCES OF COUNSEL

      Robert S. Dean, New York City, for appellant.

      Robert M. Morgenthau, District Attorney, New York City (Sheryl Feldman and Alan Gadlin of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Defendant allegedly sold cocaine to an undercover officer during a buy-and-bust operation. The operation involved one undercover officer who purchased the drugs from defendant, as well as two other undercover officers who functioned as ghosts (i.e., they watched the transaction secretly to ensure the buying officer’s safety). Following arrest, indictment and denial of suppression, defendant waived a jury trial, choosing to be tried by the court.

The People called the undercover buyer at trial. When the officer took the stand, the court clerk asked him to state only his shield number and command, and the officer testified anonymously throughout direct examination. Before beginning cross-examination, defense counsel told the court that he had noticed during direct examination that the prosecutor had identified the undercover officer by his shield number, not his name. Counsel asserted that “[m]y client has a constitutional right to confront his accuser. There has been no motion made by the People to withhold this information. I don’t see any reason why it should be withheld.” The court denied counsel’s application, stating that “it’s incumbent upon you under the case law to show that some prejudice will ensue. Having made your application, having failed to demonstrate any prejudice, I’ll permit this officer and the others to testify under their undercover number.”

On appeal, defendant claimed that his Sixth Amendment right to confrontation had been violated by the anonymous testimony of the two officers, and that the trial court had erred by not requiring the People to show a need for anonymous testimony. The Appellate Division affirmed defendant’s conviction. While agreeing with defendant that the trial court should have required the People to make a showing of need, the Appellate Division concluded that defendant’s right of confrontation had not been prejudiced, “particularly since the direct testimony provided the necessary predicate to allow each officer to testify under his shield number” (3 AD3d 360, 361 [1st Dept 2004]).

In People v Stanard (42 NY2d 74 [1977]), we set out the sequential steps that must be followed whenever the People seek to shield a witness’s identity, address and/or occupation. First, the People must “come forward with some showing of why the witness should be excused from answering the question. Excuse may arise from a showing that the question will harass, annoy, humiliate or endanger the witness” (id. at 84). Then the burden shifts to the defense “to demonstrate the materiality of the requested information to the issue of guilt , or innocence” (id.). Finally, the trial court must balance the defendant’s right to cross-examination with the witness’s interest in some degree of anonymity. Here, the People did not satisfy their burden of showing the need for anonymity. The sequential three-step inquiry mandated by Stanard was not undertaken, and this is reversible error. When the requirements of Stanard have not been met, a finding of harmless error is not warranted where, as here, the testimony of the anonymous witness is central to the People’s case and defendant’s ability to cross-examine the anonymous witness is purely speculative.

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

Order reversed, etc.


text:
    Nicole Jaycox, Appellant, v Emerson C. Reid, M.D., et al., Respondents.
    Submitted August 16, 2004;
    decided November 23, 2004
   Motion, insofar as it seeks leave to appeal from that portion of the March 2004 Appellate Division order that dismissed so much of the appeal to that Court as was from that part of Supreme Court’s March 2003 order as denied appellant’s motion for leave to reargue, 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 granted.


text:
    Thomas Riley, Appellant, v State of New York, Respondent.
    Submitted October 12, 2004;
    decided November 23, 2004
   Motion for reargument denied (see 3 NY3d 668]. Motion for poor person relief dismissed as academic.


text:
    Sweeney, Cohn, Stahl & Vaccaro et al., Respondents, v Amy Kane, Defendant, and George Kane et al., Appellants.
    Submitted August 30, 2004;
    decided November 23, 2004
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    [821 NE2d 941, 788 NYS2d 637]
    James R. Beehner et al., Appellants, v Eckerd Corporation, Respondent.
    Decided November 30, 2004

      APPEARANCES OF COUNSEL

      Alexander & Catalano, LLP, Syracuse (Benjamin C. Rabin of counsel), for appellants.

      Smith, Sovik, Kendrick & Sugnet, PC., Syracuse (Gabrielle Mardany Hope of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

The Appellate Division correctly determined that plaintiffs work on the air conditioning unit inside defendant’s store constituted “repair” work under Labor Law § 240 (1). The repair work, however, had ended before plaintiffs injury. The activity plaintiff was engaged in at the time of his injury—retrieval of serial and model numbers from the unit and postrepair inspection—was not repair work. In Martinez v City of New York (93 NY2d 322 [1999]), we held that an injury that occurred during inspection and before an enumerated activity began was not within the purview of section 240 (1). Similarly, the statute does not cover an injury occurring after an enumerated activity is complete. In Prats v Port Auth. of N.Y. & N.J. (100 NY2d 878 [2003]), the Court allowed a section 240 (1) claim when alteration work was on-going. We will not “isolate the moment of injury” (id. at 882), but here as in Martinez, there is a bright line separating the enumerated and nonenumerated work.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, in a memorandum.


text:
    In the Matter of Amos Babalola, Appellant, v Olsten Temporary Staffing Corporation et al., Respondents. Workers’ Compensation Board, Respondent.
    Submitted August 9, 2004;
    decided November 30, 2004
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Ever S. Benitez, Also Known as Ebert S. Benitez, Appellant, v Diane Olson et al., Defendants, and Town of Islip, Respondent. (And a Third-Party Action.)
    Submitted October 4, 2004;
    decided November 30, 2004
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument or, alternatively, 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:
    Rafael Chevere, Individually and as Administrator of the Estate of Manuela Chevere, Deceased, Respondent, v Hyundai Motor Company et al., Appellants.
    Submitted September 7, 2004;
    decided November 30, 2004
   Motion by the Association of International Automobile Manufacturers, Inc. for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    Rafael Chevere, Individually and as Administrator of the Estate of Manuela Chevere, Deceased, Respondent, v Hyundai Motor Company et al., Appellants.
    Submitted September 7, 2004;
    decided November 30, 2004
   Motion by the Product Liability Advisory Council, Inc. for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    Gearlene Hemingway, Appellant, v U.S. Bank National, Respondent.
    Submitted September 27, 2004;
    decided November 30, 2004
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the Court of Appeals does not have jurisdiction to entertain it (see CPLR 5601). Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain it (see CPLR 5602). Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York, Respondent, v Ramon Ortiz, Also Known as Carlos Piris Rodriguez, Appellant.
    Submitted November 1, 2004;
    decided November 30, 2004
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no civil appeal lies from the order of Supreme Court entered in this criminal proceeding (see NY Const, art VI, § 3 [b]; CPLR 5601; CPL 450.90, 450.15 [1]).


text:
    [821 NE2d 968, 788 NYS2d 663]
    The People of the State of New York, Appellant, v Jose Marrero, Respondent.
    Decided December 2, 2004
    APPEARANCES OF COUNSEL

      Robert T. Johnson, District Attorney, Bronx (Christopher J. Blira-Koessler and Joseph N. Ferdenzi of counsel), for appellant.

      Legal Aid Society, New York City (Richard Joselson and Laura R. Johnson of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Upon remitting the matter for resentencing based on the sentencing court having—as a result of the parties’ mutual mistake—adjudicated defendant a second felony offender, the Appellate Division allowed the People to allege a different prior felony conviction as a basis for the adjudication. Citing Matter of Kisloff v Covington (73 NY2d 445, 452 [1989]), the Appellate Division correctly ruled that in the event defendant cannot properly be adjudicated a second felony offender, the People should not be permitted to withdraw their consent to defendant’s guilty plea.

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

Order affirmed in a memorandum.


text:
    Ace Fire Underwriters Insurance Company, Respondent, v Orange-Ulster Board of Cooperative Educational Services et al., Defendants and Third-Party Plaintiffs-Appellants. National Union Insurance Company of Pittsburgh, Pa., et al., Third-Party Defendants-Respondents.
    Submitted October 25, 2004;
    decided December 2, 2004
   Appeal from the November 2003 Appellate Division order dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that such order was recalled and vacated by a June 2004 superceding Appellate Division order [see 8 AD3d 593] which is in favor of appellants and does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Katherine Barnhart et al., Appellants, v John Cataldo, as Justice of the Supreme Court of the State of New York, et al., Respondents.
    Submitted November 15, 2004;
    decided December 2, 2004
   Motion for leave to appeal granted. Motion for a stay dismissed as academic as the parties have stipulated to stay sentencing pending determination of the appeal.


text:
    In the Matter of Dominique W. Administration for Children’s Services, Respondent; Lucy C. et al., Respondents. Juana D., Intervenor-Appellant.
    Submitted October 18, 2004;
    decided December 2, 2004
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]).


text:
    In the Matter of Michael Howard, Appellant, v Glenn S. Goord, as Commissioner of Correctional Services, Respondent.
    Submitted October 4, 2004;
    decided December 2, 2004
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the Appellate Division “judgment” appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for leave to appeal denied.


text:
    In the Matter of David Kuntz et al., Appellants, v Bernadette Castro, as Commissioner of New York State Office of Parks, Recreation and Historic Preservation, et al., Respondents.
    Submitted October 4, 2004;
    decided December 2, 2004
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that dismissed the appeal from so much of Supreme Court’s order and judgment as denied appellants’ request for a preliminary injunction, 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 Carmine Montemarano et al., Appellants, v Gregory V. Serio, as Superintendent of Insurance of the State of New York, et al., Respondents.
    Submitted October 18, 2004;
    decided December 2, 2004
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and is not an order of the type provided for in CPLR 5602 (a) (2).


text:
    Charleen Palumbo, Respondent, v Robert Palumbo, Appellant.
    Submitted November 8, 2004;
    decided December 2, 2004
   Motion for leave to appeal dismissed upon the ground that the September 2004 Appellate Division order does not finally determine the action within the meaning of the Constitution and no direct avenue of appeal lies to the Court of Appeals from the April 2003 judgment of Supreme Court, appellant previously having appealed that judgment to the Appellate Division. Motion for a stay dismissed as academic.


text:
    The People of the State of New York ex rel. Reggie Caswell, Appellant, v Anthony Zon et al., Respondents.
    Submitted October 18, 2004;
    decided December 2, 2004
   Motion for leave to appeal dismissed upon the ground that the motion for leave to appeal does not lie from the order of an individual Justice of the Appellate Division (see NY Const, art VI, § 3; CPLR 5602).


text:
    In the Matter of Bryan Woodall, Appellant, v Glenn S. Goord, as Commissioner of Correctional Services, Respondents.
    Submitted November 15, 2004;
    decided December 2, 2004
   Appeal, insofar as taken from that portion of the Appellate Division order that affirmed Supreme Court’s denial of appellant’s motion for reconsideration, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that such portion of the order appealed from does not finally determine the proceeding within the meaning of the Constitution; appeal, insofar as taken from that portion of the Appellate Division order that affirmed Supreme Court’s judgment dismissing the petition, 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.