text:
    [854 NE2d 1268, 821 NYS2d 804]
    Karen A. Schroeder, Appellant, v Kalenak Painting & Paperhanging, Inc., et al., Respondents.
    Decided August 29, 2006

      APPEARANCES OF COUNSEL

      The Barnes Firm, P.C., Rochester (Sareer A. Fazili of counsel), for appellant.

      Burke, Albright, Harter & Reddy, LLP, Rochester (Robert J. Burke of counsel), for Kalenak Painting & Paperhanging, Inc., respondent.

      Sugarman Law Firm, LLP, Syracuse (Sandra L. Holihan of counsel), for Morris Massry, respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff concedes that wallpapering is not an enumerated activity under the Labor Law (see Labor Law § 240 [1]). Moreover, plaintiff fails to allege sufficient facts to estáblish that her work was part of a larger renovation project subject to coverage under the statute (see Martinez v City of New York, 93 NY2d 322, 326 [1999]; cf. Prats v Port Auth. of N.Y. & N.J., 100 NY2d 878 [2003]). Plaintiff’s section 241 (6) argument is similarly without merit.

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

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


source: Caselaw Access Project

license: Public Domain

text:
    Catholic Charities of the Diocese of Albany et al., Appellants, v Gregory V. Serio, as Superintendent of Insurance, Respondent.
    Submitted July 3, 2006;
    decided August 29, 2006
   Motion by Campus Crusade for Christ, Inc. et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    Robert Colavito, Appellant, v New York Organ Donor Network, Inc., et al., Respondents.
    Submitted July 10, 2006;
    decided August 29, 2006
   Motion by New York Alliance for Donation, Inc. for leave to appear amicus curiae on consideration of the certified question herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief may be served and 24 copies filed within five days.


text:
    In the Matter of the Estate of Carl Gifford, Deceased. David Gifford, Appellant; Frances Goff et al., as Coexecutors of Carl Gifford, Deceased, Respondents.
    Submitted June 5, 2006;
    decided August 29, 2006
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Surrogate’s Court’s order denying appellant’s motions for renewal and reargument, a temporary restraining order and appointment of a guardian ad litem, dismissed upon the ground that such part of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for poor person relief dismissed as academic.


text:
    Andrew J. Holowacz et al., Appellants, v Insurance Corporation of New York, Respondent, et al., Defendant.
    Submitted June 12, 2006;
    decided August 29, 2006
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying appellants’ motion for reargument or, in the alternative, leave to appeal to the Court of Appeals, dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Eric Parker, Appellant, v Mobil Oil Corporation et al., Respondents, and Island Transportation Corporation et al., Defendants and Third-Party Plaintiffs-Respondents. Exxon Mobil Corporation et al., Third-Party Defendants-Respondents.
    Submitted July 3, 2006;
    decided August 29, 2006
   Motion by Association of American Railroads for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Eric Parker, Appellant, v Mobil Oil Corporation et al., Respondents, and Island Transportation Corporation et al., Defendants and Third-Party Plaintiffs-Respondents. Exxon Mobil Corporation et al., Third-Party Defendants-Respondents.
    Submitted August 21, 2006;
    decided August 29, 2006
   Motion by Council for Education and Research on Toxics et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Eric Parker, Appellant, v Mobil Oil Corporation et al., Respondents, and Island Transportation Corporation et al., Defendants and Third-Party Plaintiffs-Respondents. Exxon Mobil Corporation et al., Third-Party Defendants-Respondents.
    Submitted August 7, 2006;
    decided August 29, 2006
   Motion by Margaret A. Berger et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Eric Parker, Appellant, v Mobil Oil Corporation et al., Respondents, and Island Transportation Corporation et al., Defendants and Third-Party Plaintiffs-Respondents. Exxon Mobil Corporation et al., Third-Party Defendants-Respondents.
    Submitted August 21, 2006;
    decided August 29, 2006
   Motion by American Trial Lawyers Association et al. for leave to file a brief amici curiae on the appeal herein granted. Two copies of the brief may be served and 24 copies filed within five days.


text:
    The People of the State of New York, Respondent, v Joseph Grajales, Appellant.
    Submitted July 17, 2006;
    decided August 29, 2006
   Motion for assignment of counsel granted and Lynn WL. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Edward Jackson, Appellant.
    Submitted July 24, 2006;
    decided August 29, 2006
   Motion for assignment of counsel granted and Steven Banks, Esq., Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Appellant, v Ganesh Kisoon, Also Known as Ganesh Kisson, Respondent.
    Submitted July 17, 2006;
    decided August 29, 2006
   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 respondent on the appeal herein.


text:
    The People of the State of New York, Respondent, v Nico LeGrand, Appellant.
    Submitted July 24, 2006;
    decided August 29, 2006
   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 Rene Lisojo, Appellant.
    Submitted July 17, 2006;
    decided August 29, 2006
   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 Cornell Louree, Appellant.
    Submitted July 10, 2006;
    decided August 29, 2006
   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 Wilfredo Moyett, Appellant.
    Submitted August 21, 2006;
    decided August 29, 2006
   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 Leighton Nelson, Appellant.
    Submitted July 10, 2006;
    decided August 29, 2006
   Motion for assignment of counsel granted and Steven Banks, Esq., Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Beato Ozuna, Appellant.
    Submitted July 10, 2006;
    decided August 29, 2006
   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 Terrien Williams, Appellant.
    Submitted July 17, 2006;
    decided August 29, 2006
   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 assigned as counsel to the appellant on the appeal herein.


text:
    In the Matter of Professional Staff Congress-City University of New York, Respondent, v New York State Public Employment Relations Board et al., Appellants.
    Submitted July 17, 2006;
    decided August 29, 2006
   Motion by City of New York for leave to file a brief amicus curiae on the appeal herein granted. Two copies of the brief may be served and 24 copies filed within five days.


text:
    In the Matter of Pyramid Company of Watertown et al., Respondents, v Planning Board of Town of Watertown et al., Appellants, et al., Respondent.
    Submitted August 7, 2006;
    decided August 29, 2006
   Motion to dismiss appeals granted and the appeals dismissed with $400 costs and $100 costs of motion upon the ground that the issues presented have become moot.


text:
    Chaskie J. Rosenberg, Appellant, v Metlife, Inc., et al., Respondents.
    Decided August 29, 2006
   Certification of question by the United States Court of Appeals for the Second Circuit, pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), accepted and the issues presented are to be considered after briefing and argument.

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


text:
    Welsbach Electric Corp., Respondent, v MasTec North America, Inc., Appellant.
    Submitted July 31, 2006;
    decided August 29, 2006
   Motion to strike respondent’s addendum and supplementary appendix and portions of respondent’s brief denied.


text:
    Michael A. Wolfson, M.D., M.P.H., Appellant, v Preventative Medicine Clinical Services et al., Respondents.
    Submitted May 22, 2006;
    decided August 29, 2006
   Motion, insofar as it seeks leave to appeal from the Appellate Division order that affirmed Supreme Court’s order denying appellant’s motion to renew, 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:
    Nicole L. Ziegelmeyer, Appellant, v United States Olympic Committee et al., Respondents.
    Submitted July 17, 2006;
    decided August 29, 2006
   Motion to dismiss appeal denied.


text:
    [855 NE2d 1159, 822 NYS2d 745]
    Sean O’Sullivan, Appellant, v IDI Construction Company, Inc., Respondent, et al., Defendant. IDI Construction Company, Inc., Third-Party Plaintiff-Respondent, v Teman Electrical Construction, Inc., et al., Third-Party Defendants-Respondents.
    Decided August 31, 2006
    APPEARANCES OF COUNSEL

      Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria LLP, Buffalo {John A. Collins of counsel), for appellant.

      Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York City (Mathew P. Ross of counsel), for respondent and third-party plaintiff-respondent.

      Newman Fitch Altheim Myers, PC., New York City (Michael H. Zhu of counsel), for Cosner Construction, third-party defendant-respondent.

      Ahmuty, Demers & McManus, Albertson (Brendan T. Fitzpatrick of counsel), for Teman Electric Construction, Inc., third-party defendant-respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs. The courts below properly concluded that plaintiffs Labor Law § 241 (6) cause of action, based on 12 NYCRR 23-1.7 (e) (1) and (2), failed because the electrical pipe or conduit that plaintiff tripped over was an integral part of the construction. Further, plaintiff cannot recover in negligence or pursuant to Labor Law § 200 because no triable issue of fact exists that defendant IDI Construction Company, Inc.’s on-site safety manager “control [led] the activity bringing about the injury to enable it to avoid or correct an unsafe condition” (Russin v Louis N. Picciano & Son, 54 NY2d 311, 317 [1981]) or that IDI maintained an unreasonably dangerous work environment.

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

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


text:
    Victor Batshever, Appellant, v Baron Auto Mall, Inc., Respondent.
    Submitted June 26, 2006;
    decided August 31, 2006
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain this motion for leave to appeal from the order of the Appellate Division entered in this action commenced in the Civil Court of the City of New York (see NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]). Motion for poor person relief dismissed as academic.


text:
    Board of Education of Mamaroneck Union Free School District, Plaintiff, v Attorney General of State of N.Y., Defendant. In the Matter of Richard Cantor, Appellant, v Mamaroneck Union Free School District et al., Respondents.
    Submitted June 26, 2006;
    decided August 31, 2006
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    In the Matter of Arthur P. Churuti, Appellant, v Elizabeth M. Devane, as Chairperson of the New York State Board of Examiners of Sex Offenders, et al., Respondents.
    Submitted June 26, 2006;
    decided August 31, 2006
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no appeal lies as of right from the unanimous judgment of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601). Motion for leave to appeal denied.


text:
    In the Matter of the Estate of Andreas Drossos, Also Known as Andrew Drossos, Deceased. Angelos P. Romas, Appellant; Patrice McDermand et al., Respondents.
    Submitted July 17, 2006;
    decided August 31, 2006
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for a stay dismissed as academic.


text:
    Nicole M. Gallo, Formerly Known as Nicole M. Paonessa, Appellant, v Maria A. Ricci, Defendant, and John E. Jacobs et al., Respondents.
    Submitted June 26, 2006;
    decided August 31, 2006
   Motion for leave to appeal denied. Cross motion for the imposition of sanctions denied.


text:
    In the Matter of Michael Lombard, Appellant, v Dennis J. Breslin, Respondent.
    Submitted July 10, 2006;
    decided August 31, 2006
   Motion by Frank J. Barbaro, Esq. for leave to appear amicus curiae on the motion for leave to appeal herein denied.


text:
    In the Matter of Matthew Y. Ohel Children’s Home and Family Services, Respondent; Ebrahim Y., Appellant. (Proceeding No. 1.) In the Matter of Matania Y. Ohel Children’s Home and Family Services, Respondent; Ebrahim Y., Appellant. (Proceeding No. 2.) In the Matter of Mina Y. Ohel Children’s Home and Family Services, Respondent; Ebrahim Y., Appellant. (Proceeding No. 3.) In the Matter of Moshe Y. Ohel Children’s Home and Family Services, Respondent; Ebrahim Y., Appellant. (Proceeding No. 4.)
    Submitted July 17, 2006;
    decided August 31, 2006
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceedings within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Waki Milling, Appellant, v James Berbary, as Superintendent of Collins Correctional Facility, et al., Respondents.
    Submitted August 7, 2006;
    decided August 31, 2006
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    [855 NE2d 1165, 822 NYS2d 751]
    Joseph Campbell, Respondent, v Central New York Regional Transportation Authority, Appellant.
    Decided September 12, 2006

      APPEARANCES OF COUNSEL

      Mackenzie Hughes LLP, Syracuse (W Bradley Hunt of counsel), for appellant.

      James B. Fleckenstein, Syracuse, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and defendant’s motion for summary judgment dismissing the personal injury claim granted. The certified question should be answered in the negative.

Although the issue of proximate cause is ordinarily for the factfinder to resolve, defendant established that the ill-fitting replacement wheelchair provided by a third party constituted an independent intervening occurrence which operated upon, but did not flow from, the original negligence (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]; see also Ventricelli v Kinney Sys. Rent A Car, 45 NY2d 950, 951 [1978], mot to amend remittitur granted 46 NY2d 771 [1978]).

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

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


text:
    [855 NE2d 1165, 822 NYS2d 751]
    Stacey Whelan, Appellant, v Lance Longo, Respondent.
    Decided September 12, 2006
    APPEARANCES OF COUNSEL

      Jeffrey Levitt, Amityville, for appellant.

      Paul J. Israelson, Plainview, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, and the certified question not answered on the ground that it is unnecessary. Plaintiff knew or should have known of the facts allegedly giving rise to the legal malpractice cause of action at the time she filed her February 2002 bankruptcy petition (see Dynamics Corp. of Am. v Marine Midland Bank-N.Y., 69 NY2d 191 [1987]). Thus, plaintiffs failure to disclose that cause of action in her bankruptcy petition deprived her of the legal capacity to sue in this action (id.).

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 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, etc.


text:
    [855 NE2d 1166, 822 NYS2d 752]
    In the Matter of Homes for the Homeless, Inc., Respondent, v Board of Standards and Appeals of the City of New York, Appellant.
    Decided September 12, 2006

      APPEARANCES OF COUNSEL

      Michael A. Cardoza, Corporation Counsel, New York City (Drake A. Colley of counsel), for appellant.

      Cozen O’Connor, New York City (Howard B. Hornstein of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, the petition dismissed and the certified question answered in the negative. The determination of the Board of Standards and Appeals denying the expansion component of petitioner’s variance application was rational and supported by substantial evidence (see Matter of SoHo Alliance v New York City Bd. of Stds. & Appeals, 95 NY2d 437, 440 [2000]).

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 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, etc.


text:
    Tamilla Alekperova, Appellant, v Mikhail Yuger et al., Respondents.
    Submitted August 28, 2006;
    decided September 12, 2006
   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:
    Campaign for Fiscal Equity, Inc., et al., Appellants-Respondents, v State of New York et al., Respondents-Appellants.
    Submitted September 5, 2006;
    decided September 12, 2006
   Motion by New York State School Boards Association, Inc. for leave to file a brief amicus curiae on the appeal herein granted. Two copies of the brief may be served and 24 copies filed within 10 days.

Judge Graffeo taking no part.


text:
    Campaign for Fiscal Equity, Inc., et al., Appellants-Respondents, v State of New York et al., Respondents-Appellants.
    Submitted August 28, 2006;
    decided September 12, 2006
   Motion by United Federation of Teachers for leave to file a brief amicus curiae on the appeal herein granted. Two copies of the brief may be served and 24 copies filed within 10 days.

Judge Graffeo taking no part.


text:
    In the Matter of the Judicial Settlement of the Second Intermediate Account of the Chase Manhattan Bank (Successor in Interest to Chase Lincoln First Bank, N.A., Successor in Interest to Lincoln First Bank of Rochester, Formerly Known as Lincoln Rochester Trust Company), as Trustee of the Trust for the Benefit of Blanche D. Hunter, Deceased, and Another, under “Fifth” of the Will of Charles G. Dumont, Deceased, Respondent. Margaret Hunter et al., Appellants-Respondents; Eliot Spitzer, as Attorney General of the State of New York, Respondent-Appellant.
    Submitted June 5, 2006;
    decided September 12, 2006
   Motion by appellants Margaret Hunter et al. for leave to appeal denied. Motion by the Attorney General for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    Eric Daniels et al., Appellants, v City of New York et al., Respondents.
    Submitted June 26, 2006;
    decided September 12, 2006
   Motion, insofar as made by Robin Daniels for leave to appeal, dismissed upon the ground that Robin Daniels, having not appealed to the Appellate Division, is not a party aggrieved (see Karger, Powers of the New York Court of Appeals § 11:9, at 393 [rev 3d ed 2005]); motion, insofar as made by Eric Daniels for leave to appeal, denied.


text:
    In the Matter of Ellis Eiland, Appellant, v Thomas Poole, as Superintendent of Five Points Correctional Facility, Respondent.
    Submitted September 5, 2006;
    decided September 12, 2006
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Fourth 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:
    Hong Mai, Appellant, v Southeast Produce et al., Respondents.
    Submitted July 3, 2006;
    decided September 12, 2006
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Sidney Oglesby, as Onondaga County Commissioner of Jurors, et al., Respondents, v Langston C. McKinney, as Syracuse City Court Judge, Appellant, et al., Respondent.
    Submitted September 5, 2006;
    decided September 12, 2006
   Motion by Office of Court Administration for leave to file a brief amicus curiae on the appeal herein granted. Two copies of the brief may be served and 24 copies filed within 10 days.

Chief Judge Kaye taking no part.


text:
    The People of the State of New York, Respondent, v Orlando Melendez, Appellant.
    Submitted August 28, 2006;
    decided September 12, 2006
   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 Paul Person, Appellant.
    Submitted August 28, 2006;
    decided September 12, 2006
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place Suite 1601, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.


text:
    Jason S. Planck, Appellant, v New York State Office of Temporary and Disability Assistance et al., Respondents.
    Submitted June 26, 2006;
    decided September 12, 2006
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine an action or proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    [855 NE2d 1169, 822 NYS2d 754]
    Marcia M. Halpin, Individually and as Parent and Natural Guardian of Samantha Halpin and Another, Infants, Appellant, v Town of Lancaster, Respondent.
    Decided September 14, 2006
    APPEARANCES OF COUNSEL

      Magavern, Magavern & Grimm, L.L.P., Buffalo {Aven Rennie of counsel), for appellant.

      Cohen & Lombardo, EC., Buffalo {Christopher M. Duggan 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. The courts below properly concluded that plaintiff failed to state causes of action for breach of a special duty and breach of a duty voluntarily assumed. Absent proof of a special relationship, police, in dealing with domestic quarrels, “cannot be expected to predict and prevent irrational behavior” (Yearwood v Town of Brighton, 101 AD2d 498, 502 [4th Dept 1984] [op by Hancock, Jr., J.], affd for reasons stated below 64 NY2d 667 [1984]).

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 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, etc.


text:
    Ariela Braun et al., Appellants, v 941 Park Ave., Inc., et al., Respondents.
    Submitted September 5, 2006;
    decided September 14, 2006
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the two-Justice dissent at the Appellate Division is not on a question of law (CPLR 5601 [a]).


text:
    Campaign for Fiscal Equity, Inc., et al., Appellants-Respondents, v State of New York et al., Respondents-Appellants.
    Submitted September 11, 2006;
    decided September 14, 2006
   Motion by Alliance for Quality Education et al. for leave to file a brief amici curiae on the appeal herein granted. Two copies of the brief may be served and 24 copies filed within 10 days.

Judge Graffeo taking no part.


text:
    Campaign for Fiscal Equity, Inc., et al., Appellants-Respondents, v State of New York et al., Respondents-Appellants.
    Submitted September 11, 2006;
    decided September 14, 2006
   Motion by the Association of the Bar of the City of New York for leave to file a brief amicus curiae on the appeal herein granted. Two copies of the brief may be served and 24 copies filed within 10 days.

Judge Graffeo taking no part.


text:
    Campaign for Fiscal Equity, Inc., et al., Appellants-Respondents, v State of New York et al., Respondents-Appellants.
    Submitted September 11, 2006;
    decided September 14, 2006
   Motion by the Council of the City of New York for leave to file a brief amicus curiae on the appeal herein and for other relief granted only to the extent that two copies of the brief may be served and 24 copies filed within 10 days.

Judge Graffeo taking no part.


text:
    Campaign for Fiscal Equity, Inc., et al., Appellants-Respondents, v State of New York et al., Respondents-Appellants.
    Submitted September 11, 2006;
    decided September 14, 2006
   Motion by Adriano Espaillat et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.

Judge Graffeo taking no part.


text:
    Campaign for Fiscal Equity, Inc., et al., Appellants-Respondents, v State of New York et al., Respondents-Appellants.
    Submitted September 11, 2006;
    decided September 14, 2006
   Motion by Brennan Center for Justice at New York University School of Law for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.

Judge Graffeo taking no part.


text:
    Campaign for Fiscal Equity, Inc., et al., Appellants-Respondents, v State of New York et al., Respondents-Appellants.
    Submitted September 11, 2006;
    decided September 14, 2006
   Motion by 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.

Judge Graffeo taking no part.


text:
    The People of the State of New York, Respondent, v Allen Harper, Appellant.
    Submitted September 11, 2006;
    decided September 14, 2006
   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:
    In the Matter of Morton S. Robson, an Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted July 24, 2006;
    decided September 14, 2006
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    White Plains Coat & Apron Co., Inc., Appellant, v Cintas Corp. et al., Respondents.
    Submitted September 6, 2006;
    decided September 14, 2006
   Certification of question by the United States Court of Appeals for the Second Circuit, pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), accepted and the issues presented are to be considered after briefing and argument.

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


author: R.S. Smith, J.

text:
    [857 NE2d 47, 823 NYS2d 752]
    The People of the State of New York, Respondent, v Jose Diaz, Appellant.
    Decided September 19, 2006
    APPEARANCES OF COUNSEL

      Legal Aid Society, New York City (Cheryl P. Williams and Steven Banks of counsel), for appellant.

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

Memorandum.

The appeal should be dismissed without prejudice. As stated in People v Genet (59 NY 80, 81 [1874]), “[t]he whole theory of criminal proceedings is based upon the idea of the defendant being in the power, and under the control of the court, in his person.” Thus, this Court has consistently dismissed appeals where a defendant has absconded (see People v Smith, 44 NY2d 613 [1978]; People v Parmaklidis, 38 NY2d 1005 [1976]). Moreover, in People v Del Rio (14 NY2d 165 [1964]), we dismissed defendant’s appeal when he voluntarily absented himself from this Court’s jurisdiction by consenting to deportation. Although defendant here has been involuntarily deported, he is nevertheless unavailable to obey the mandate of this Court. While this absence does not mandate dismissed of the appeal, it presents a situation analogous to that of mootness (see Smith, 44 NY2d at 617). Analyzing the relevant factors, we determine that it would be inappropriate under the circumstances of this case to retain this appeal.

In exercising our discretion, we dismiss this appeal without prejudice to defendant’s making a motion to reinstate the appeal should he return to this Court’s jurisdiction (cf. People v Sullivan, 28 NY2d 900, 901 [1971] [appeal dismissed where appellant was “not presently available to obey the mandate of the court in the event of an affirmance”]; People v Sullivan, 28 NY2d 992 [1971] [dismissed appeal reinstated upon defendant’s return to custody]).

R.S. Smith, J.

(dissenting). Defendant was convicted of gang assault in the first degree, and the Appellate Division affirmed his conviction. He claims that he did not have a fair trial, and a Judge of this Court found enough substance in that claim to justify granting leave to appeal. Defendant has now been deported, and the People have moved to dismiss the appeal. Defendant, through counsel, opposes the motion; in other words, defendant continues to ask us to vindicate what he says are his constitutional rights. There is no indication that defendant’s absence from the jurisdiction is voluntary.

I do not agree that, under these circumstances, the Court has “discretion” whether to hear defendant’s appeal or not. Once leave to appeal has been granted, defendant has a right to have his appeal decided, unless he has, by absconding or by some other voluntary act, furnished a good reason for depriving him of that right (People v Del Rio, 14 NY2d 165 [1964]).

In Del Rio, we dismissed the appeal of a defendant who had been deported to Cuba following the commutation of his sentence. We did so, however, only after examining the facts carefully and concluding that the defendant had voluntarily agreed to leave the United States and never to return. We held that by doing so defendant had “abandoned the appeal and deliberately . . . waived and foregone his right to have the appeal heard and decided” (id. at 168).

Del Rio leaves no doubt that, if the defendant’s deportation had been involuntary, he would have retained “his right to have the appeal heard and decided.” This is apparent from our summary of the history of the case:

“On October 3,1963 ... we granted a motion made by the People to dismiss the appeal for ‘mootness’ on a showing that defendant had left the United States for Cuba, that his sentence had been commuted so that the minimum would be the time already served and the maximum a life term, and that he had been released from prison on parole and deported by the United States Immigration Service to his native Cuba.
“Later, when defendant’s application for vacatur of the dismissal was presented to us, we were told (mistakenly, as it now appears) that defendant had ‘never executed any waiver, consent, application or other request for commutation’ or agreed to his removal from prison and from the United States and that ‘the first notice that he had of his deportation was at approximately 3:00 o’clock in the afternoon that he was deported.’ We set aside the dismissal and put the appeal back on our calendar.
“However, as we now learn, we acted on an erroneous statement of alleged facts.” (Id. at 166-167.)

Defendant here is in the position that we had mistakenly believed the Del Rio defendant to be in — he was deported without, as far as appears from this record, any cooperation on his part. We should hear his appeal, as we would have heard the Del Rio defendant’s appeal if his departure had been involuntary.

The majority says that defendant is “unavailable to obey the mandate of this Court” but does not say what possible “mandate” it refers to. Assuming we affirm defendant’s conviction, that cannot and will not undo his deportation or require him to serve more time in a New York prison; there will thus be no “mandate” for him to obey. Thus, the majority is apparently concerned about compliance with our “mandate” if we should reverse defendant’s conviction and order a new trial. The majority assumes that defendant is de facto a fugitive, that to grant him a new trial would be an exercise in futility since he will not appear at it, and thus that the case is for practical purposes moot. The unspoken premise of the majority’s decision is that, now that defendant has been deported, he will never, at least voluntarily, be seen or heard from by the New York courts again.

This may well be true, in this and in most other cases where a defendant has been deported, but we should not simply assume it. Defendant has asked us for a new trial, and has not by any voluntary act made a retrial difficult or impossible. He is entitled to have us assume, absent contrary evidence, that he in fact wants a retrial, and will cooperate in any way necessary if his conviction is reversed and the People seek to retry him. While it would be perfectly reasonable to inquire into the facts — to ask defense counsel, for example, to communicate with defendant and to get his assurance that he is not abandoning his ..appeal and will cooperate with any necessary future proceedings — I think it inappropriate to presume with no proof that a litigant, simply because he is a deportee, is contemptuous of or indifferent to the Court’s processes.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo and Read concur; Judge R.S. Smith dissents and votes to deny the motion to dismiss in an opinion.

Motion to dismiss appeal granted and appeal dismissed, in a memorandum.


text:
    [857 NE2d 527, 824 NYS2d 206]
    Thomas M. Gerrity et al., Appellants, v Abdul-Malik Muthana, Defendant, and Leprechaun Lines, Inc., et al., Respondents.
    Decided September 19, 2006

      APPEARANCES OF COUNSEL

      Reden & O’Donnell, Buffalo (Joseph E. O’Donnell of counsel), for appellants.

      Walsh, Roberts & Grace, Buffalo (Thomas E. Roberts of counsel), for Leprechaun Lines, Inc., respondent.

      Alisa A. Lukasiewicz, Corporation Counsel, Buffalo (Lisa M. Yaeger of counsel), for City of Buffalo, respondent.

      Lippman O’Connor, Buffalo {Robert M. Lippman of counsel), for County of Erie, respondent.
   OPINION OF THE COURT

Memorandum.

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

Even assuming that the location of the bus owned by defendant Leprechaun Lines, Inc. in the traffic lane at the time of the accident resulted, in some respect, from negligence on the part of Leprechaun, the City of Buffalo or the County of Erie/ Erie Community College as plaintiffs allege, these defendants were nonetheless entitled to summary judgment because they established, as a matter of law, that the alleged negligence was not a proximate cause of plaintiffs injuries (see Sheehan v City of New York, 40 NY2d 496, 503 [1976]).

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

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


text:
    Victor Coronel, Appellant, v The Chase Manhattan Bank, Respondent.
    Submitted July 10, 2006;
    decided September 19, 2006
   Motion to vacate the Court of Appeals’ May 15, 2006 order of dismissal granted [see 6 NY3d 892]. Motion for leave to appeal dismissed as academic.

Judge G.B. Smith taking no part.


text:
    Highland Capital Management LP, Appellant-Respondent, v Leonard Schneider et al., Defendants and Third-Party Plaintiffs-Respondents-Appellants, et al., Respondent. RBC Dominion Securities Corp., Third-Party Defendant-Respondent-Appellant.
    Submitted September 8, 2006;
    decided September 19, 2006
   Certification of question by the United States Court of Appeals for the Second Circuit, pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), 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 the Adoption of Matthew D., an Infant. John Doe et al., Appellants; Kara D., Appellant; Terrencio E., Respondent. Adoption S.T.A.R., Inc., Appellant.
    Submitted September 11, 2006;
    decided September 19, 2006
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the two-Justice dissent at the Appellate Division is not on a question of law (CPLR 5601 [a]).


text:
    Luis Roman, Appellant, v City of New York et al., Respondents.
    Submitted September 11, 2006;
    decided September 19, 2006
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601).


text:
    In the Matter of Christopher Shapard, Appellant, v Anthony Zon, as Superintendent of Wende Correctional Facility, et al., Respondents.
    Submitted July 17, 2006;
    decided September 19, 2006
   Motion for leave to appeal dismissed upon the ground that the issues presented have become moot. Motion for poor person relief dismissed as academic.


text:
    Louis E. Thyroff, Appellant, v Nationwide Mutual Insurance Company et al., Respondents.
    Submitted September 6, 2006;
    decided September 19, 2006
   Certification of question by the United States Court of Appeals for the Second Circuit, pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), 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:
    [857 NE2d 49, 823 NYS2d 754]
    The People of the State of New York, Respondent, v Patricio Bautista, Appellant.
    Argued September 7, 2006;
    decided September 21, 2006
    APPEARANCES OF COUNSEL

      Center for Appellate Litigation, New York City (Gayle Pollack and Robert S. Dean of counsel), for appellant.

      Robert M. Morgenthau, District Attorney, New York City 0Christopher Marinetti of counsel), for respondent.

      Prisoners’ Legal Services of New York, Albany (Joel Landau of counsel), and another, amici curiae.
   OPINION OF THE COURT

Memorandum.

The appeal should be dismissed. Appeals in criminal cases are strictly limited to those authorized by statute (see People v De Jesus, 54 NY2d 447, 449 [1981]; Matter of State of New York v King, 36 NY2d 59, 63 [1975]). Except for capital cases, appeals to the Court of Appeals in criminal cases are by permission, rather than as of right, and are governed by CPL 450.90 and CPL 470.60. CPL 450.90 (1) authorizes an appeal to this Court by permission only from an “adverse or partially adverse order of an intermediate appellate court entered upon an appeal taken to such intermediate appellate court pursuant to section 450.10, 450.15, or 450.20.” The order before us clearly does not come within the provisions of CPL 450.10, 450.15 or 450.20. CPL 470.60 (3) allows an appeal to this Court from an order of an intermediate appellate court dismissing an appeal to that court, and has no application here.

Chapter 643 of the Laws of 2005, the unconsolidated law at issue, provides that “[a]n appeal may be taken as of right in accordance with applicable provisions of the criminal procedure law: (a) from an order denying resentencing” (L 2005, ch 643, § 1). We reject defendant’s argument that chapter 643 authorizes not only an appeal as of right to the intermediate appellate court, but also an appeal to this Court by permission pursuant to CPL 450.90. The Legislature failed to mention CPL 450.90 in chapter 643 of the Laws of 2005. Moreover, the Legislature did not amend the language of CPL 450.10 or CPL 450.15 to provide in those sections for appeals to the intermediate appellate court from orders denying applications for resentencing, so as to bring such orders within the scope of CPL 450.90 (1).

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

Appeal dismissed in a memorandum.

       An order denying an application for resentencing is not equivalent to an appealable sentence (see De Jesus, 54 NY2d at 449), or to an order denying a CPL 440.20 motion to set aside a sentence (compare L 2005, ch 643 [orders denying applications for resentencing appealable as of right] with CPL 450.15 [2] [orders denying motions to set aside sentences appealable by permission]).


text:
    [857 NE2d 51, 823 NYS2d 756]
    The People of the State of New York, Respondent, v Jose Cosme Pizarro, Appellant.
    Argued September 6, 2006;
    decided September 21, 2006
    APPEARANCES OF COUNSEL

      Center for Appellate Litigation, New York City (William A. Loeb and Robert S. Dean of counsel), for appellant.

      Robert T. Johnson, District Attorney, Bronx (Peter D. Coddington of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

After a jury trial, defendant was convicted of four counts of murder in the second degree, and sentenced to 75 years to life imprisonment. On this appeal, defendant asserts that the trial judge should have declared a mistrial. He claims that a juror concealed his personal knowledge about the case during jury selection, sought to share outside-the-record information with his fellow jurors during deliberations, and, after the jury foreperson short-circuited and reported his attempted disclosures, lied to the trial court.

The trial judge conducted a day-long hearing to investigate the foreperson’s allegations against the juror, whom the judge interviewed three times. The juror denied under oath possessing nonevidentiary knowledge about the case. The trial judge also questioned every other juror regarding the truth of the allegations. Based on his inquiries, the trial judge concluded that the juror did not have personal knowledge related to the case and had not tried to convey outside-the-record information to other jurors. Moreover, all 12 jurors assured the trial judge that they would decide the case impartially, based on the evidence alone. Observing that “[t]he trial court’s credibility findings, made after hearing and viewing the jurors, are entitled to great deference,” the Appellate Division decided that “the record supports the court’s determination that there was merely a misunderstanding between [the juror], who was trying to express his opinions on the evidence, and some of the other jurors, who mistakenly interpreted his comments as indicating outside knowledge” (People v Pizarro, 24 AD3d 309, 312 [1st Dept 2005]). We must accept these affirmed factual determinations so long as they enjoy record support, which they do. The juror repeatedly disclaimed extrinsic knowledge, and the trial judge credited his denials, which were not as a matter of law contradicted by inconsistent accounts of what the juror said or speculation as to what he may have meant.

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

Order affirmed in a memorandum.


text:
    Allstate Insurance Company, Respondent, v Michael A. Marcone et al., Appellants, et al., Defendants.
    Submitted July 17, 2006;
    decided September 21, 2006
   Motion by Kerri Iossa for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion by Michael and Nelda Marcone for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    In the Matter of Imani J., a Child Alleged to be Permanently Neglected. Monique J., Appellant; Children’s Aid Society et al., Respondents.
    Submitted July 10, 2006;
    decided September 21, 2006
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed Family Court’s denial of appellant’s motion to vacate the order of disposition, 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. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Robert H. Rotering, Jr., Appellant, v Susan C. Rotering, Respondent.
    Submitted July 17, 2006;
    decided September 21, 2006
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument or, in the alternative, leave to appeal to the Court of Appeals, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Matthew A. Siegel (Admitted as Matthew Allen Siegel), a Disbarred Attorney.
    Submitted August 28, 2006;
    decided September 21, 2006
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying appellant’s motion for clarification of the decision and order denying reinstatement, an extension of time to seek reargument and/or renewal of his application for reinstatement, and/or 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:
    Skek Associates, Respondent, v Esther Benenson et al., Appellants.
    Submitted July 10, 2006;
    decided September 21, 2006
   Motion, insofar as made by Esther Benenson, Michael Benenson and Sharon Benenson for leave to appeal, dismissed upon the ground that they are not parties aggrieved (CPLR 5511); motion, insofar as made by Flushing Manor Care Center, Inc. for leave to appeal, denied.


text:
    The People of the State of New York, Respondent, v Robert Romero, Appellant.
    Submitted October 2, 2006;
    decided October 3, 2006
   Motion for substitution of assigned counsel granted and Matthew J. Weiss, Esq., care of Weiss and Associates, EC., 419 Park Avenue South, 2nd Floor, New York, NY 10016 is assigned in the place and stead of Lawrence Fleischer, Esq.


text:
    Katharine Allison, Appellant, v William B. Allison, Respondent.
    Submitted July 31, 2006;
    decided October 17, 2006
   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, 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 (see Karger, Powers of the New York Court of Appeals § 12:3, at 436-437 [rev 3d ed 2005]). Motion for poor person relief dismissed as academic.


text:
    In the Matter of Domenick Crispino, Appellant, v Glenn S. Goord, as Commissioner of Correctional Services, et al., Respondents.
    Submitted August 14, 2006;
    decided October 17, 2006
   Motion for leave to appeal dismissed upon the ground that the issues presented are moot. Motion for poor person relief dismissed as academic.


text:
    Charles A. D’Agostino, Jr., Appellant, v Robert S. Franklin et al., Respondents.
    Submitted July 24, 2006;
    decided October 17, 2006
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    Ronald M. Linder, Appellant, v Sanford Dranoff et al., Respondents.
    Submitted July 24, 2006;
    decided October 17, 2006
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    In the Matter of MERSCORP, Inc., et al., Respondents, v Edward P. Romaine et al., Appellants, et al., Defendant.
    Submitted October 2, 2006;
    decided October 17, 2006
   Motion by Federal National Mortgage Association et al. for leave to file a brief amici curiae on the appeal herein granted. Two copies of the brief may be served and 24 copies filed within seven days.


text:
    In the Matter of MERSCORP, Inc., et al., Respondents, v Edward P. Romaine et al., Appellants, et al., Defendant.
    Submitted October 2, 2006;
    decided October 17, 2006
   Motion by Mortgage Bankers Association for leave to file a brief amicus curiae on the appeal herein granted. Two copies of the brief may be served and 24 copies filed within seven days.


text:
    In the Matter of MERSCORP, Inc., et al., Respondents, v Edward P. Romaine et al., Appellants, et al., Defendant.
    Submitted October 10, 2006;
    decided October 17, 2006
   Motion by American Land Title Association for leave to file a brief amicus curiae on the appeal herein granted. Two copies of the brief may be served and 24 copies filed within seven days.


text:
    Northeast Wine Development, LLC, Doing Business as All Star Wine & Spirits, Appellant, v Service-Universal Distributors, Inc., Respondent, et al., Defendant.
    Submitted October 2, 2006;
    decided October 17, 2006
   Motion by Empire Liquor Store Association, Inc. for leave to file a brief amicus curiae on the appeal herein denied as untimely (see Rules of Practice of Court of Appeals [22 NYCRR] § 500.23).


text:
    The People of the State of New York, Respondent, v Michael Barton, Appellant.
    Submitted September 18, 2006;
    decided October 17, 2006
   Motion by City of Rochester for an order permitting movant to file a brief and to participate in oral argument of the appeal, granted in each respect.


text:
    The People of the State of New York, Respondent, v James Chiddick, Appellant.
    Submitted October 2, 2006;
    decided October 17, 2006
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Juan Nieves-Andino, Appellant.
    Submitted October 2, 2006;
    decided October 17, 2006
   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:
    Linda A. Stark, Esq., Respondent, v Molod Spitz DeSantis & Stark, P.C., et al., Appellants.
    Submitted July 17, 2006;
    decided October 17, 2006
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that denied appellants’ motion to compel arbitration and granted respondent’s motion to stay arbitration, granted; motion for leave to appeal otherwise dismissed upon the ground that the remainder of the Appellate Division order does not finally determine an action or proceeding within the meaning of the Constitution.


text:
    Lorimer P. Brooks, Appellant, v Harold Haidt et al., Respondents.
    Submitted August 7, 2006;
    decided October 19, 2006
   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 vacate, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of First Central Insurance Company, Appellant. Zesha Auerbach et al., Respondents.
    Submitted July 31, 2006;
    decided October 19, 2006
   Motion, insofar as it seeks leave to appeal from the Appellate Division order of reversal, dismissed as untimely. The prior motion for leave to appeal made to the Appellate Division was untimely (see Karger, Powers of the New York Court of Appeals § 12:3, at 436-437 [rev 3d ed 2005]). Motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument or, in the alternative, leave to appeal to the Court of Appeals, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution.


text:
    Concetta Lucchese et al., Appellants, v Evan S. Silverman et al., Defendants, and City of New York, Respondent.
    Submitted August 21, 2006;
    decided October 19, 2006
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    In the Matter of MERSCORP, Inc., et al., Respondents, v Edward P. Romaine et al., Appellants, et al., Defendant.
    Submitted October 16, 2006;
    decided October 19, 2006
   Motion by South Brooklyn Legal Services et al. for leave to file a brief amici curiae on the appeal herein granted. Two copies of the brief may be served and 24 copies filed within seven days.


text:
    In the Matter of New York City Transit Authority, Appellant, v New York State Public Employment Relations Board et al., Respondents.
    Submitted October 16, 2006;
    decided October 19, 2006
   Motion by Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief may be served and 24 copies filed within seven days.


text:
    The People of the State of New York, Respondent, v Michael Barton, Appellant.
    Submitted October 16, 2006;
    decided October 19, 2006
   Motion by New York Civil Liberties Union for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief may be served and 24 copies filed within seven days.


text:
    The People of the State of New York, Respondent, v William Miller, Appellant.
    Submitted October 16, 2006;
    decided October 19, 2006
   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 ex rel. Justo Richards, Appellant, v Calvin West, Respondent. In the Matter of Justo Richards, Appellant, v Calvin West, Respondent.
    Submitted August 14, 2006;
    decided October 19, 2006
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceedings 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 proceedings within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Chaskie J. Rosenberg, Appellant, v Metlife, Inc., et al., Respondents.
    Submitted October 16, 2006;
    decided October 19, 2006
   Motion by Matthew Murray for leave to appear amicus curiae on consideration of the certified question herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief may be served and 24 copies filed within seven days.


text:
    Sona Shah et al., Appellants, v Wilco Systems, Inc., Respondent.
    Submitted July 24, 2006;
    decided October 19, 2006
   Motion by Sona Shah for leave to appeal dismissed upon the ground that as to her the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion by Kai Barrett, insofar as it seeks leave to appeal from that portion of the Appellate Division order that denied his motion for class certification, 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:
    Theodore E. Somerville, Appellant, v Haiyan S. Somerville, Respondent.
    Submitted July 24, 2006;
    decided October 19, 2006
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed Supreme Court’s order adjudging appellant in contempt, 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:
    Timothy Williams, Respondent, v Raymond Corporation et al., Appellants.
    Submitted July 24, 2006;
    decided October 19, 2006
   Motion by 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:
    Thomas Briksza, Appellant, v New York S. Storage Inc. et al., Respondents.
    Submitted October 16, 2006;
    decided October 24, 2006
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    In the Matter of the Rehabilitation of Frontier Insurance Company. Callon Petroleum, Respondent, v New York State Department of Insurance, as Rehabilitator of Frontier Insurance Company, Appellant.
    Submitted August 14, 2006;
    decided October 24, 2006
   Motion by the Louisiana Department of Insurance for leave to file a statement amicus curiae on the motion for leave to appeal herein granted and the statement is accepted as filed.


text:
    George Eagan Ginther, Appellant, v Mary O’Grady Ginther et al., Respondents.
    Submitted July 31, 2006;
    decided October 24, 2006
   Motion, insofar as it seeks leave to appeal from the Appellate Division order that dismissed the appeal from the Supreme Court order granting appellant’s motion for a sealing order, dismissed upon the ground that appellant is not a party aggrieved by such order {see CPLR 5511); motion for leave to appeal otherwise denied.

Judge Pigott taking no part.


text:
    Seth M. Kessler et al., Appellants, v Alan G. Hevesi, as Comptroller of the State of New York, et al., Respondents.
    Submitted October 16, 2006;
    decided October 24, 2006
   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:
    Andrea Korngold, Appellant, v Harvey Korngold, Respondent.
    Submitted August 7, 2006;
    decided October 24, 2006
   Motion for leave to appeal dismissed upon the ground that appellant has failed to establish timeliness as required by section 500.22 (b) (2) of the Rules of Practice of the Court of Appeals (22 NYCRR 500.22 [b] [2]).


text:
    Manufacturer’s & Traders Trust Company, Named in the Relevant Escrow Agreements as Manufacturer’s & Traders Bank, Plaintiff, v Reliance Insurance Company et al., Defendants, O’Brien & Gere Technical Services, Inc., et al., Appellants, and Fru-Con/Fluor Daniel Joint Venture, Respondent.
    Submitted July 24, 2006;
    decided October 24, 2006
   Motion by Gives Corporation et al. for leave to appeal granted. Motion by O’Brien & Gere Technical Services, Inc. for leave to appeal granted.

Judge Pigott taking no part.


text:
    Mauhoi Tung, Appellant, v Henry Chiu, D.D.S., Doing Business as Mott Street Dental Services P.C., Respondent.
    Submitted August 14, 2006;
    decided October 24, 2006
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain it (see NY Const, art VI, § 3 [b] [7]; CPLR 5602).


text:
    The People of the State of New York, Respondent, v Rikki Adams, Appellant.
    Submitted October 16, 2006;
    decided October 24, 2006
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no civil appeal lies from the orders entered in this criminal proceeding (see NY Const, art VI, § 3 [b]; CPLR 5601; CPL 450.90).

Judge Pigott taking no part.


text:
    The People of the State of New York, Appellant, v Jose Rossey, Respondent.
    Submitted September 11, 2006;
    decided October 24, 2006
   Application, insofar as treated as a petition for a writ of error coram nobis, dismissed. There is no authority for initiating a writ of error coram nobis in the Court of Appeals (see People v Bond, 93 NY2d 896 [1999]; People v Gibbs, 85 NY2d 1030 [1995]). Application, insofar as treated as a motion for reargument and/or reconsideration, dismissed as untimely (see Rules of Practice of Court of Appeals [22 NYCRR] § 500.24 [b]).


text:
    Leonor Datil Perez, Appellant, v Time Moving & Storage, Respondent.
    Submitted September 11, 2006;
    decided October 24, 2006
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the action within the meaning of the Constitution. Motion for a stay dismissed as academic.


text:
    In the Matter of James Rush, Appellant, v County of Nassau et al., Respondents.
    Submitted August 14, 2006;
    decided October 24, 2006
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Supreme Court’s order denying appellant’s motion, pursuant to CPLR 2221 (e), for leave to renew, dismissed upon the ground that such portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Gisela Strom, Respondent, v Peter Lomtevas, Appellant.
    Submitted October 2, 2006;
    decided October 24, 2006
   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 a stay dismissed as academic.


text:
    City of Syracuse et al., Appellants, v Onondaga County et al., Respondents. Atlantic States Legal Foundation, Inc., et al., Plaintiffs; 2.3 Acres of Land in the City of Syracuse, N.Y., Defendant and Third-Party Defendant.
    Submitted October 12, 2006;
    decided October 24, 2006
   Certification of questions by the United States Court of Appeals for the Second Circuit, pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), accepted and the issues presented are to be considered after briefing and argument.

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


text:
    [859 NE2d 912, 826 NYS2d 173]
    Northeast Wine Development, LLC, Doing Business as All Star Wine & Spirits, Appellant, v Service-Universal Distributors, Inc., Respondent, et al., Defendant.
    Argued October 11, 2006;
    decided November 16, 2006

      APPEARANCES OF COUNSEL

      Crane, Párente, Cherubin & Murray, Albany (John T. McManus and Thomas M. Keman of counsel), for appellant.

      Tuczinski, Cavalier, Burstein & Collura, PC., Albany (Andrew W. Gilchrist, Richard L. Burstein and Jennifer M. Boll of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division insofar as appealed from should be affirmed, with costs.

The Appellate Division correctly concluded that plaintiffs complaint should he dismissed. The first two causes of action, alleging deceptive conduct in violation of General Business Law §§ 349 and 350, are untenable because the acts alleged do not have the requisite impact on consumers.

Under the circumstances of this case, plaintiffs causes of action seeking injunctive relief are now academic. The Attorney General and the State Liquor Authority entered into a consent decree with eight wine and liquor wholesalers, including defendant. In September 2006, Supreme Court issued an order and judgment enjoining defendant from engaging in the precise conduct for which plaintiff seeks injunctive relief. Plaintiffs remaining contentions lack merit.

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

Order, insofar as appealed from, affirmed, with costs, in a memorandum.


text:
    [859 NE2d 912, 826 NYS2d 173]
    The People of the State of New York, Respondent, v Rene Lisojo, Appellant.
    Decided November 16, 2006
    APPEARANCES OF COUNSEL

      Center for Appellate Litigation, New York City (Carl S. Kaplan and Robert S. Dean of counsel), for appellant.

      Robert T Johnson, District Attorney, Bronx CAllen H. Saperstein of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed. The issue raised on appeal was not preserved for this Court’s review.

Concur: Chief Judge Kaye and Judges Ciparick, Rosenblatt, Graffeo, Read, Smith and Pigott concur.


text:
    [859 NE2d 913, 826 NYS2d 174]
    The People of the State of New York, Respondent, v Brandon J. Bolling, Appellant.
    Argued October 12, 2006;
    decided November 16, 2006
    APPEARANCES OF COUNSEL

      Edward J. Nowak, Public Defender, Rochester {Eric M. Dolan of counsel), for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant appeals his conviction for manslaughter in the second degree, arguing that the trial court gave an incorrect charge on justification (see People v McManus, 67 NY2d 541 [1986]). Although the defense of justification was submitted to the jury, without objection from the People, no reasonable view of the evidence supported the defense. A witness testified that the victim had threatened defendant and a codefendant with a gun, and had fired it into the air, but the same witness testified that the victim was then disarmed, and that he was lying on the ground when the shots that killed him were fired.

No justification charge at all was necessary, and any error in the charge that was given was harmless (People v Jones, 3 NY3d 491, 496-497 [2004]). We need not and do not consider whether the charge was correct.

Chief Judge Kaye and Judges Ciparick, Rosenblatt, Graffeo, Read and Smith concur; Judge Pigott taking no part.

Order affirmed in a memorandum.


text:
    [860 NE2d 50, 826 NYS2d 588]
    The People of the State of New York, Respondent, v Natsu Carter, Appellant.
    Argued October 19, 2006;
    decided November 16, 2006

      APPEARANCES OF COUNSEL

      David P. Elkovitch, Auburn, for appellant.

      James B. Vargason, District Attorney, Auburn (Christopher T. Valdina of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted of assault in the first degree (Penal Law § 120.10 [3]) and assault in the second degree (Penal Law § 120.05 [1]). To convict him of the first of these crimes, the jury had to find that he recklessly engaged in conduct that created a grave risk of death to another person; to convict him of the second, it had to find that he intended to cause serious physical injury to another person. Defendant claims that he could not consistently be convicted of both charges, and that therefore the court erred in failing to submit them to the jury as alternatives. Defendant failed to preserve this argument at trial, however; he neither objected to the charge nor challenged the verdict as repugnant.

We reject as without merit defendant’s contention that no preservation was necessary. The asserted error was not one that affects the organization of the court or the mode of proceedings prescribed by law (see e.g. People v Alfaro, 66 NY2d 985 [1985]). We also reject defendant’s contention that his trial counsel was ineffective for fading to preserve the issue. Trial counsel might have made an argument based on People v Robinson (145 AD2d 184 [1989], affd 75 NY2d 879 [1990]), but in light of our later decision in People v Trappier (87 NY2d 55 [1995]) that argument was not so compelling that a failure to make it amounted to ineffective assistance of counsel (see People v Turner, 5 NY3d 476 [2005]). We express no opinion on whether the argument, if made, would have been successful.

Defendant’s argument that the evidence was insufficient to support the verdict is unpreserved.

Chief Judge Kaye and Judges Ciparick, Rosenblatt, Graffeo, Read and Smith concur; Judge Pigott taking no part.

Order affirmed in a memorandum.


text:
    In the Matter of MERSCORP, Inc., et al., Respondents, v Edward P. Romaine et al., Appellants, et al., Defendant.
    Submitted October 23, 2006;
    decided November 16, 2006
   Motion by County Clerks of the counties of Albany etc. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    The People of the State of New York, Respondent, v Arthur Bryant, Appellant.
    Submitted October 30, 2006;
    decided November 16, 2006
   Motion for assignment of counsel granted and Steven Banks, Esq., Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Appellant, v Juan Castillo, Respondent.
    Submitted October 30, 2006;
    decided November 16, 2006
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the respondent on the appeal herein.


text:
    The People of the State of New York, Respondent, v Clay Parker, Also Known as Trife, Appellant.
    Submitted October 23, 2006;
    decided November 16, 2006
   Motion for assignment of counsel granted and Paul J. Connolly, Esq., 2 Wedge Road, Delmar, New York 12054 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v John N. Rowland, Appellant.
    Submitted October 30, 2006;
    decided November 16, 2006
   Motion for assignment of counsel granted and Paul J. Connolly, Esq., 2 Wedge Road, Delmar, New York 12054 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v John Taylor, Appellant.
    Submitted November 13, 2006;
    decided November 16, 2006
   Motion by New York Religious Leaders Against the Death Penalty et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    The People of the State of New York, Respondent, v John Taylor, Appellant.
    Submitted November 13, 2006;
    decided November 16, 2006
   Motion by Terrence M. Connors, Esq. et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    The People of the State of New York, Respondent, v John Taylor, Appellant.
    Submitted November 13, 2006;
    decided November 16, 2006
   Motion by New Jersey Crime Victims’ Law Center for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Chaskie J. Rosenberg, Appellant, v Metlife, Inc., et al., Respondents.
    Submitted October 30, 2006;
    decided November 16, 2006
   Motion by National Employment Lawyers Association/New York for leave to file a brief amicus curiae on consideration of the certified question herein granted. Two copies of the brief may be served and 24 copies filed within seven days.


text:
    [860 NE2d 58, 826 NYS2d 596]
    Susan K. Attea, Appellant, v Martin P. Attea, Respondent.
    Decided November 20, 2006

      APPEARANCES OF COUNSEL

      Lipsitz Green Scime Cambria LLP, Buffalo (Patrick C. O’Reilly and John A. Collins of counsel), for appellant.

      Spadafora & Verrastro, LLP, Buffalo (John E. Spadafora and Jennifer M. Turkovich of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be affirmed, with costs. Defendant father did not agree to pay the disputed medical school expenses for the parties’ youngest son (see Hoffman v Hoffman, 122 AD2d 583, 584 [4th Dept 1986], lv dismissed 69 NY2d 706 [1986]).

Chief Judge Kaye and Judges Ciparick, Rosenblatt, Graffeo, Read and Smith concur; Judge Pigott taking no part.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order, insofar as appealed from, affirmed, with costs, in a memorandum.


text:
    [860 NE2d 55, 826 NYS2d 595]
    The People of the State of New York, Respondent, v Alan Brown, Appellant.
    Argued October 19, 2006;
    decided November 20, 2006

      APPEARANCES OF COUNSEL

      Legal Aid Society, New York City (Lorca Morello and Steven Banks of counsel), for appellant.

      Robert M. Morgenthau, District Attorney, New York City (Richard L. Sullivan and Sandra E. Cavazos of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was charged with robbery in the third degree and criminal possession of stolen property in the fifth degree, for having forcibly stolen two bottles of body wash from a pharmacy. Complainant, a security officer employed by the store, testified at trial that he observed defendant remove the bottles from a shelf, conceal them in his pants and attempt to leave the store. He further testified that when he tried to stop defendant from leaving the store with the items, defendant punched him twice in the jaw and shoved him against a wall. Defendant was ultimately convicted of robbery in the third degree and sentenced, as a second felony offender, to a term of 2V2 to 5 years.

Defendant contends that the trial court erred by prematurely instructing potential jurors during voir dire on the elements of the crimes for which he was on trial. Contrary to defendant’s contention, the trial court, by instructing the jury at the outset as to the elements of the crimes, did not commit a “mode of proceedings” error that went to the essential validity of the process and was so fundamental that the entire trial is irreparably tainted (see generally People v Agramonte, 87 NY2d 765, 770 [1996]). Because defendant failed to object before the trial court, his claim is unpreserved for our review (see People v Gray, 86 NY2d 10 [1995]).

Defendant’s claim that the trial court abused its discretion in its Sandoval ruling is without merit, as are his remaining contentions.

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

Order affirmed in a memorandum.


text:
    [860 NE2d 57, 826 NYS2d 594]
    The People of the State of New York, Respondent, v Allen Harper, Appellant.
    Decided November 20, 2006
    APPEARANCES OF COUNSEL

      Appellate Advocates, New York City (Lynn W.L. Fahey and De Nice Powell of counsel), for appellant.

      Charles J. Hynes, District Attorney, Brooklyn (Thomas S. Burka of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

During his preliminary instructions to the jury, the trial judge outlined the elements of each of the three robbery counts with which the defendant was charged. Because defendant failed to object to these instructions, his contention is unpreserved for our review (see People v Brown, 7 NY3d 880 [2006] [decided today]).

Defendant’s challenge to the hearing court’s determination involves a mixed question of law and fact and our review is therefore limited to whether there is record support for the determinations of the courts below. Because the Appellate Division affirmed the denial of the motion to suppress without disturbing the court’s finding of abandonment, and there is record evidence that would support that determination, we are bound by the suppression court’s finding (see People v Hollman, 79 NY2d 181, 193-194 [1992]).

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

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


text:
    [860 NE2d 56, 826 NYS2d 593]
    The People of the State of New York, Respondent, v Leighton Nelson, Appellant.
    Decided November 20, 2006

      APPEARANCES OF COUNSEL

      Legal Aid Society, New York City (Lawrence T Hausman of counsel), for appellant.

      Robert M. Morgenthau, District Attorney, New York City (Richard L. Sullivan of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Contrary to defendant’s contention, the trial court’s denial of defendant’s motion to substitute counsel, made just prior to jury selection, constituted a proper exercise of discretion (People v Linares, 2 NY3d 507 [2004]). Although the court initially rejected defendant’s application without inquiry, it thereafter allowed defendant to voice his concerns, about defense counsel. Nor did defense counsel’s comments to the court defending his performance create a conflict of interest requiring the court to appoint new counsel (see generally People v Quintana, 15 AD3d 299 [1st Dept 2005], lv denied 4 NY3d 856 [2005]; People v Silva, 15 AD3d 263 [1st Dept 2005], lv denied 4 NY3d 857 [2005]). Therefore, on the record before us, we cannot say that court abused its discretion in finding that the defendant did not establish good cause for such relief (see People v Medina, 44 NY2d 199 [1978]).

Defendant’s further contention that the court erred in defining the elements of the crime during its preliminary instructions was not preserved for our review (see People v Brown, 7 NY3d 880 [2006] [decided today]).

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

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


text:
    Harold Baker et al., Appellants, v William R. Kohler et al., Respondents.
    Submitted October 2, 2006;
    decided November 20, 2006
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    In the Matter of Christian B., Respondent, v Yvette R., Respondent, and Christina R., Appellant.
    Submitted October 30, 2006;
    decided November 20, 2006
   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 Donavann W., a Child Alleged to be Neglected. Fauzia W., Appellant; Commissioner of the Administration for Children’s Services, Respondent.
    Submitted August 21, 2006;
    decided November 20, 2006
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that denied the motion to enlarge the record and to renew the request for a stay, 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 Nadene Green, Appellant, v New York Office of Temporary and Disability Assistance et al., Respondents.
    Submitted November 6, 2006;
    decided November 20, 2006
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    Marianne J. Kelly, Respondent, v John M. Kelly, Appellant.
    Submitted October 2, 2006;
    decided November 20, 2006
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.

Judge Pigott taking no part.


text:
    Meridian Acupuncture Care, Appellant, v Geico Insurance Company, Respondent.
    Submitted September 5, 2006;
    decided November 20, 2006
   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 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:
    National Union Fire Insurance Company of Pittsburgh, Pa., Appellant, v Xerox Corporation et al., Respondents, et al., Defendant.
    Submitted September 18, 2006;
    decided November 20, 2006
   Motion for leave to appeal dismissed upon the ground that the Supreme Court orders sought to be appealed from do not finally determine the action within the meaning of the Constitution and do not constitute final judgments within the meaning of CPLR 5602 (a) (1) (ii).


text:
    The People of the State of New York, Respondent, v James M. Myron, Appellant.
    Submitted October 30, 2006;
    decided November 20, 2006
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no civil appeal lies from the order of the Appellate Division in this criminal action (see NY Const, art VI, § 3 [b]; CPLR 5601; GPL 450.90).


text:
    The People of the State of New York ex rel. Ramon Alvarez, Appellant, v New York State Division of Parole et al., Respondents.
    Submitted September 11, 2006;
    decided November 20, 2006
   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 Norman I. Saferstein, Appellant, v Lawyers’ Fund for Client Protection, Respondent.
    Submitted October 16, 2006;
    decided November 20, 2006
   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 proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Marietta Small, Appellant, v Coney Island Site 4A-1 Houses, Inc., et al., Respondents.
    Submitted October 10, 2006;
    decided November 20, 2006
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]; 2103 [b] [2]).


text:
    In the Matter of Wembly Management Co., Inc., Doing Business as Bldg. Management Co., Inc., et al., Appellants, v New York State Division of Housing and Community Renewal, Office of Rent Administration, Respondent.
    Submitted September 5, 2006;
    decided November 20, 2006
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 Ob]).


text:
    [860 NE2d 61, 826 NYS2d 599]
    The People of the State of New York, Respondent, v Bobby Lane, Appellant.
    Argued October 18, 2006;
    decided November 21, 2006

      APPEARANCES OF COUNSEL

      Office of the Appellate Defender, New York City (Richard M. Greenberg of counsel), and Sullivan & Worcester LLP (Mary Cecilia Sweeney of counsel) for appellant.

      Robert M. Morgenthau, District Attorney, New York City (Tracy L. Conn and Susan Gliner of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant failed to preserve his challenge to the sufficiency of the evidence supporting the conviction. At the close of the People’s case, defendant moved to dismiss on the ground that the evidence did not establish a prima facie case of grand larceny in the fourth degree. The trial court promptly denied that motion. After defendant presented his own evidence, he did not renew his earlier argument. Consequently, whether the trial evidence was sufficient to support each element of the crime is not a question of law that this Court may review (see e.g. People v Payne, 3 NY3d 266, 273 [2004]; People v Hines, 97 NY2d 56, 61 [2001]).

Defendant next contends that the trial court’s evidentiary ruling violated his constitutional rights to a fair trial and to present a defense. While defendant was testifying, defense counsel sought to elicit defendant’s alleged refusal to cash additional checks at the behest of a codefendant. Since defendant did not raise these constitutional claims in the trial court, they are unpreserved for our review (cf. People v Lee, 96 NY2d 157, 163 [2001]; People v Kello, 96 NY2d 740, 743 [2001]). Nor can it be said that the trial court abused its discretion as a matter of law by precluding the proposed testimony. The court advised defense counsel that it wanted to “see how the questioning goes” and determine whether a foundation could be established for the inquiry; the court did not indicate that the evidence was irrelevant or inadmissible. On these facts, it cannot be said that the court’s only reasonable course of action was to allow the proposed testimony to be admitted at the time it was offered.

Also unpersuasive is defendant’s claim that the Appellate Division’s reliance on People v Gaimari (176 NY 84 [1903]) indicates that the Court utilized an erroneous rule of law in rejecting his contention that the verdict was against the weight of the evidence (see People v Romero, 7 NY3d 633, 645-646 [2006] [decided today]). In fact, the Appellate Division also cited People v Bleakley (69 NY2d 490 [1987]) and thereby clearly indicated that defendant had received the appellate scrutiny to which he was entitled (see Romero, 7 NY3d at 646). Moreover, although defendant was convicted following a bench trial, the appropriate standard for evaluating a weight of the evidence argument on appeal is the same regardless of whether the finder of fact was a judge or a jury (see Bleakley, 69 NY2d at 495 [if “the trier of fact has failed to give the evidence the weight it should be accorded, then the appellate court may set aside the verdict”]) because those who see and hear the witnesses can assess their credibility and reliability in a manner that is far superior to that of reviewing judges who must rely on the printed record.

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

Order affirmed in a memorandum.


text:
    [860 NE2d 704, 827 NYS2d 87]
    The People of the State of New York, Respondent, v Charlie Vega, Appellant.
    Decided November 21, 2006

      APPEARANCES OF COUNSEL

      Center for Appellate Litigation, New York City (Robert S. Dean of counsel), for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

Based on the testimony of detectives who observed defendant engage in narcotics transactions, he was convicted of two counts of criminal sale of a controlled substance in the third degree. The Appellate Division rejected defendant’s argument that the verdict was against the weight of the evidence, concluding that there was “no basis for disturbing the jury’s determinations concerning credibility, including its resolution of inconsistencies in the detectives’ testimony (see People v Gaimari, 176 NY 84, 94 [1903])” (25 AD3d 382, 382 [1st Dept 2006]). The Appellate Division’s citation to Gaimari does not indicate that the Court failed to apply the proper legal standard for analyzing defendant’s challenge to the weight of the evidence supporting the conviction (see People v Romero, 7 NY3d 633, 645-646 [decided today]).

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

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


text:
      [860 NE2d 59, 826 NYS2d 597]
    The People of the State of New York, Respondent, v Wilfredo Moyett, Appellant.
    Decided November 21, 2006
    APPEARANCES OF COUNSEL

      Center for Appellate Litigation, New York City (Robert S. Dean and Mark W. Zeno of counsel), for appellant.

      Robert T. Johnson, District Attorney, Bronx (Leilani Rodriguez of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the case remitted to that Court for consideration of the excessive sentencing issue.

Defendant’s purported waiver of appeal during the plea colloquy was invalid because the court advised defendant that “by pleading guilty you give up your right to appeal the conviction.” Based on this statement, defendant may have erroneously believed that the right to appeal is automatically extinguished upon entry of a guilty plea (see People v Billingslea, 6 NY3d 248, 257 [2006]). Under these circumstances, and absent a written waiver of appeal or some indication in the record that defendant understood the distinction between the right to appeal and other trial rights forfeited incident to a guilty plea, there is inadequate assurance that defendant entered into a knowing, intelligent and voluntary waiver of appeal.

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

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


text:
    [860 NE2d 60, 826 NYS2d 598]
    Nicole L. Ziegelmeyer, Appellant, v United States Olympic Committee et al., Respondents.
    Decided November 21, 2006

      APPEARANCES OF COUNSEL

      Harris Beach PLLC, Albany (A. Vincent Buzzard, Mark J. McCarthy and Kevin T Bezio of counsel), for appellant.

      Roemer Wallens & Mineaux LLP, Albany (Matthew J. Kelly of counsel), for United States Olympic Committee, respondent.

      Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C., Albany (Leah W. Casey of counsel), for United States Speedskating and another, respondents.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff, a short-track Olympic speedskater, was injured when she fell on the ice during practice and hit the boards surrounding the rink. Although safety pads had been placed on the boards, plaintiff fell in such a way that her feet lifted the pads, causing her hip to strike the boards directly. Because plaintiff was aware of the exact manner in which the safety pads had been set up on the day of her accident, the Appellate Division correctly held that plaintiff had assumed the risk of her injuries, and properly affirmed the Supreme Court order granting summary judgment dismissing the complaint (see Morgan v State of New York, 90 NY2d 471 [1997]; see also Trevett v City of Little Falls, 6 NY3d 884 [2006]).

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

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


text:
    Academic Health Professionals Insurance Association, Respondent, v M.Q. of New York, Inc., Appellant. M.Q. of New York, Inc., Appellant, v William P. Dillon, Individually and as Chairman of the Board of Governors and Executive Committee of Academic Health Professionals Insurance Association, et al., Respondents. In the Matter of M.Q. of New York, Inc., Appellant, v Gregory Serio, as Superintendent of Insurance of the State of New York, et al., Respondents. Medical Quadrangle, Inc., et al., Appellants, v Martin Kern et al., Respondents, et al., Defendant.
    Submitted November 13, 2006;
    decided November 21, 2006
   Appeal, insofar as taken from so much of the Appellate Division order as affirmed Supreme Court’s order in Matter of M.Q. of N.Y., Inc. v Serio and as affirmed so much of the order of Supreme Court dated August 20, 2004 as dismissed the complaint in Medical Quadrangle, Inc. v Kern as against all defendants except Michael Haskell, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved; appeal, insofar as taken from so much of the Appellate Division order as pertains to Michael Haskell in Medical Quadrangle, Inc. v Kern, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that as to Michael Haskell, the order does not finally determine the action within the meaning of the Constitution; appeal, insofar as taken from so much of the Appellate Division order as relates to Academic Health Professionals Ins. Assn. v M.Q. of N.Y., Inc. and M.Q. of N.Y., Inc. v Dillon, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that such portion of the Appellate Division order does not finally determine those actions within the meaning of the Constitution.


text:
    In the Matter of Christopher M.E., Respondent, v Linda S., Appellant.
    Submitted September 25, 2006;
    decided November 21, 2006
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the two-Justice dissent at the Appellate Division is not on a question of law (CPLR 5601 [a]). Motion for poor person relief and for the assignment of new counsel on the appeal taken as of right dismissed as academic.


text:
    Thomas Hutch Forrest, Jr., Appellant, v Berlin Central School District, Respondent.
    Submitted October 10, 2006;
    decided November 21, 2006
   Motion to dismiss appeal granted and appeal dismissed, with $400 costs and $100 costs of motion, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601).


text:
    In the Matter of Randolph Hinton, Appellant, v Jeanine Pirro, Respondent.
    Submitted September 11, 2006;
    decided November 21, 2006
   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:
    David M. Ledy et al., Appellants, v Jonathan Molin et al., Respondents, et al., Defendants.
    Submitted September 25, 2006;
    decided November 21, 2006
   Motion, insofar as it seeks leave to appeal from the February 2005 Appellate Division order, dismissed upon the ground that it does not lie, appellants previously having moved for leave to appeal to the Court of Appeals from the Appellate Division order from which leave to appeal is currently sought (5 NY3d 746 [2005]); motion, insofar as it seeks leave to appeal from the August 2006 Supreme Court order, dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution and thus does not constitute a final judgment within the meaning of CPLR 5602 (a) (1) (ii).


text:
    Parviz Noghrey, Appellant, v Town of Brookhaven et al., Respondents.
    Submitted September 25, 2006;
    decided November 21, 2006
   Motion for leave to appeal from the 2005 Appellate Division order dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Paul Palmieri, Appellant, v New York State Department of Environmental Conservation et al., Respondents.
    Submitted September 5, 2006;
    decided November 21, 2006
   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 denied.