text:
    [962 NE2d 771, 939 NYS2d 280]
    In the Matter of Robert Walsh, Appellant, v Nicholas Scoppetta, as Fire Commissioner of the City of New York and as Chairman of the Board of Trustees of the New York City Fire Department, Article 1-B Pension Fund, et al, Respondents.
    Argued November 14, 2011;
    decided December 20, 2011
    APPEARANCES OF COUNSEL

      Ungaro & Cifuni, New York City (Nicholas G. Cifuni and Robert A. Ungaro of counsel), for appellant.

      Michael A. Cardozo, Corporation Counsel, New York City (Paul T. Rephen and Leonard Koerner of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

On New Year’s Eve in 2003, petitioner Robert Walsh, a firefighter in the New York City Fire Department, got into a “loud and heated” argument with a fellow firefighter in the kitchen of the firehouse. Their dispute, fueled by the prohibited consumption of alcohol, escalated from mutual taunting and provocative insults to assault when the other firefighter hit petitioner over the head from behind with a metal chair, knocking him to the floor.

Petitioner suffered traumatic brain injuries in the New Year’s Eve brawl in the firehouse. He was subsequently diagnosed with a postconcussional disorder, entailing “sensory nerve dysfunction on his face and leg, headaches, and memory, concentration and sleep disturbance.” In May 2005, the Fire Commissioner filed an application for ordinary disability retirement on petitioner’s behalf with the New York City Fire Depart- • ment Pension Fund, which is administered by a Board of Trustees. In September 2007, petitioner filed for accidental disability retirement, which provides greater benefits than ordinary disability retirement. An applicant is eligible for accidental disability retirement when the Pension Fund’s Medical Board determines and certifies to the Board of Trustees that

“such member is physically or mentally incapacitated for the performance of city-service as a natural and proximate result of an accidental injury received in such city-service while a member, and that such disability was not the result of wilful negligence on the part of such member and that such member should be retired” (Administrative Code of City of NY § 13-353).

In March 2008, the Medical Board recommended to the Board of Trustees that petitioner be granted ordinary rather than accidental medical disability, and in April 2008, the Board deadlocked on the choice. As a result, petitioner’s application for accidental disability retirement was denied, and he was retired for ordinary disability instead (see Matter of Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139, 144-145 [1997] [when the “Medical Board finds (a) firefighter disabled for performance of duty and the Board of Trustees becomes deadlocked . . . , and is thus unable to pass by majority vote a resolution retiring the firefighter for ordinary or accidental disability, by a time-honored procedural practice the application for accidental disability retirement is denied and the lesser ordinary disability benefits are awarded”]).

In August 2008, petitioner commenced this CPLR article 78 proceeding against respondent Fire Commissioner, the Pension Fund, the Board of Trustees and the City of New York (collectively, the City), seeking to annul the Board’s determination denying him a line-of-duty accidental disability retirement. Supreme Court denied the petition, stating that it could not “find, as a matter of law, that petitioner’s disability was the natural and proximate result of a service related accident and thus, finds that the Board of Trustees['] determination that petitioner’s assault was not an accident was rationally based and was not arbitrary or capricious and, therefore, cannot be judicially disturbed.” The Appellate Division affirmed (73 AD3d 1192 [2d Dept 2010]), as do we.

We may not set aside the Board of Trustees’ denial of accidental retirement on the basis of a tie vote “[u]nless it can be determined as a matter of law on the record that the disability was the natural and proximate result of a service-related accident” (Matter of Canfora v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 60 NY2d 347, 352 [1983]). That is plainly not the case here, where petitioner’s injuries resulted solely from an altercation with a fellow firefighter rather than his performance of any job duties. Consequently, we need not consider and do not decide whether, or under what circumstances, injuries caused by the intentional act of a third party are accidental within the meaning of section 13-353 of the Administrative Code.

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

Order affirmed, with costs, in a memorandum.


source: Caselaw Access Project

license: Public Domain

text:
    Maninder Bhugra, Appellant, v Massachusetts Casualty Insurance Company et al., Respondents.
    Submitted November 7, 2011;
    decided December 20, 2011
    Reported below, 2011 NY Slip Op 68561(U).
   Motion for reconsideration of this Court’s September 20, 2011 dismissal order denied [see 17 NY3d 850 (2011)].


text:
    William E. Burkhart, Jr., Appellant, v Steven V. Modica et al., Respondents.
    Submitted November 7, 2011;
    decided December 20, 2011
    Reported below, 81 AD3d 1356.
   Motion for leave to appeal etc. denied.


text:
    In the Matter of the Foreclosure of Tax Liens by County of Schuyler. County of Schuyler, Respondent; Edward Solomon Jr., Respondent, and Solomon Financial Center, Inc., Appellant. Margaret E. Starbuck, as County Treasurer of the County of Schuyler, et al., Respondents.
    Submitted November 7, 2011;
    decided December 20, 2011
    Reported below, 83 AD3d 1243.
   Motion for reargument of motion for leave to appeal denied [see 17 NY3d 850 (2011)].


text:
    Paul Eldridge, Respondent, v Carmel Central School District Board of Education et al., Appellants.
    Submitted November 7, 2011;
    decided December 20, 2011
    Reported below, 82 AD3d 1147.
   Motion for leave to appeal, insofar as made by the Carmel Central School District Board of Education, dismissed upon the ground that the Board is not a party aggrieved (see CPLR 5511); motion for leave to appeal otherwise dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Deborah Etzion, Respondent, v Rafael Etzion, Appellant, et al., Defendants.
    Submitted November 14, 2011;
    decided December 20, 2011
    Reported below, 84 AD3d 1015.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    JLG Architectural Products, LLC, Appellant, v WDF, Inc., Respondent, et al., Defendants. (And a Third-Party Action.)
    Submitted November 7, 2011;
    decided December 20, 2011
    Reported below, 87 AD3d 681.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    L&L Associates Holding Corp., Respondent, v Joseph A.F. Sadowski, Appellant, et al., Defendants.
    Submitted November 14, 2011;
    decided December 20, 2011
    Reported below, 2011 NY Slip Op 84844(U).
   Motion for leave to appeal dismissed upon the ground that it does not lie (see CPLR 5602). Motion for a stay dismissed as academic. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Lastanzea L. and Others, Infants. Oneida County Department of Social Services, Respondent; Lakesha L., Appellant.
    Submitted November 7, 2011;
    decided December 20, 2011
    Reported below, 87 AD3d 1356.
   Motion, insofar as it seeks leave to appeal from the Appellate Division order that affirmed Family Court’s denial of the motion to vacate, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for poor person relief dismissed as academic.


text:
    Nella Manko, Appellant, v Lenox Hill Hospital, Respondent.
    Decided December 20, 2011
    Reported below, 2011 NY Slip Op 77315(U).
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Margaret Regan Smith, on Behalf of Hunter L, an Infant, Respondent, v Dawn F.B., Appellant. Richard L, Nonparty Respondent.
    Submitted November 14, 2011;
    decided December 20, 2011
    Reported below, 88 AD3d 729.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Yan Ping Xu, Appellant, v City of New York, Sued Herein as New York City Department of Health and Mental Hygiene, Respondent.
    Submitted November 7, 2011;
    decided December 20, 2011
    Reported below, 82 AD3d 559.
   Motion, insofar as it seeks leave to appeal from that portion 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. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Albany Law School et al., Respondents-Appellants, v New York State Office of Mental Retardation and Developmental Disabilities et al., Appellants-Respondents.
    Submitted January 3, 2012;
    decided January 5, 2012
    Reported below, 81 AD3d 145.
   Motion by NYSARC, Inc. for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    William B. Clarke, Respondent, v Rafael Rodriguez, Appellant.
    Submitted November 7, 2011;
    decided January 5, 2012
    Reported below, 73 AD3d 677.
   Motion for reargument dismissed as untimely (see Rules of Ct of Appeals [22 NYCRR] § 500.24 [b]) [see 16 NY3d 815 (2011)].


text:
    Lisa L. Dever, Appellant, v Mark DeVito et al., Respondents.
    Submitted September 26, 2011;
    decided January 5, 2012
    Reported below, 84 AD3d 1539.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Global Reinsurance Corporation-U.S. Branch, Formerly Known as Gerling Global Reinsurance Corporation-U.S. Branch, Respondent, v Equitas Ltd. et al., Appellants.
    Submitted January 3, 2012;
    decided January 5, 2012
    Reported below, 82 AD3d 26.
   Motion by Society of Lloyd’s for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 19 copies filed within seven days.


text:
    In the Matter of Hailey ZZ., a Child Alleged to be Permanently Neglected. Tompkins County Department of Social Services, Respondent; Ricky ZZ., Appellant.
    Submitted December 12, 2011;
    decided January 5, 2012
    Reported below, 85 AD3d 1265.
   Motion by Legal Aid Bureau of Buffalo, Inc. for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 19 copies filed within seven days.


text:
    Hudson Valley Federal Credit Union, Appellant, v New York State Department of Taxation and Finance et al., Respondents.
    Submitted January 3, 2012;
    decided January 5, 2012
    Reported below, 85 AD3d 415.
   Motion by Credit Union Association of New York et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 19 copies filed within seven days.


text:
    Hudson Valley Federal Credit Union, Appellant, v New York State Department of Taxation and Finance et al., Respondents.
    Submitted January 3, 2012;
    decided January 5, 2012
    Reported below, 85 AD3d 415.
   Motion by National Association of Federal Credit Unions for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 19 copies filed within seven days.


text:
    The People of the State of New York, Respondent, v Emil Best, Appellant.
    Submitted December 12, 2011;
    decided January 5, 2012
    Reported below, 31 Misc 3d 141(A).
   Motion for assignment of counsel granted and Kent V Moston, Esq., Legal Aid Society of Nassau County, One Helen Keller Way, Hempstead, New York 11550 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Christopher Clark, Appellant.
    Submitted December 19, 2011;
    decided January 5, 2012
    Reported below, 88 AD3d 527.
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Alberto de Luna, Appellant.
    Submitted December 19, 2011;
    decided January 5, 2012
    Reported below, 86 AD3d 433.
   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 Marek Hyra, Appellant.
    Submitted December 27, 2011;
    decided January 5, 2012
    Reported below, 29 Misc 3d 143(A).
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Danny Martin, Appellant.
    Submitted January 3, 2012;
    decided January 5, 2012
    Reported below, 88 AD3d 473.
   Motion for assignment of counsel granted and Steven Banks, Esq., the Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Lonnie R. Meckwood, Appellant.
    Submitted December 19, 2011;
    decided January 5, 2012
    Reported below, 86 AD3d 865.
   Motion for assignment of counsel granted and Brent R. Stack, Esq., care of Fitzsimmons, Mack & Mills, P.C., 3223 Church Street, PO Box 811, Valatie, New York 12184 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Paul Tillman, Appellant.
    Submitted December 12, 2011;
    decided January 5, 2012
    Reported below, 82 AD3d 509.
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Keith Washington, Appellant.
    Submitted December 12, 2011;
    decided January 5, 2012
    Reported below, 85 AD3d 1303.
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Tyrone Watson, Appellant.
    Submitted December 27, 2011;
    decided January 5, 2012
    Reported below, 82 AD3d 1276.
   Motion for assignment of counsel granted and Steven Banks, Esq., the Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York ex rel. Shaun McManus, Appellant, v Martin F. Horn, Commissioner of the New York City Department of Corrections, Respondent.
    Submitted January 3, 2012;
    decided January 5, 2012
    Reported below, 77 AD3d 571.
   Motion by New York Civil Liberties Union et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 19 copies filed within seven days.


text:
    In the Matter of Kellyann Toale, Appellant, v Michael Caravella, Respondent.
    Submitted November 14, 2011;
    decided January 5, 2012
    Reported below, 86 AD3d 576.
   Motion for leave to appeal dismissed upon the ground that appellant has failed to demonstrate timeliness as required by Rules of the Court of Appeals (22 NYCRR) § 500.22 (b) (2).


text:
    In the Matter of John Wayman et al., Respondents, v Kelly Ramos, Appellant, et al., Respondent.
    Submitted November 14, 2011;
    decided January 5, 2012
    Reported below, 88 AD3d 1237.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Lafayette D. Young, Jr., a Justice of the Macomb Town Court, St. Lawrence County, Petitioner. State Commission on Judicial Conduct, Respondent.
    Submitted December 27, 2011;
    decided January 5, 2012
   Motion to waive strict compliance with certain requirements concerning the record on review herein granted to the extent that consideration of the determination of the Commission on Judicial Conduct may be prosecuted upon 10 copies of the record on review.


text:
    In the Matter of the Estate of Armenak Ajamian, Deceased. Alice Ajamian, as Administrator of the Estate of Armenak Ajamian, Deceased, Respondent; Robert Ajamian, Appellant; Troy Savings Bank et al., Respondents.
    Submitted November 21, 2011;
    decided January 10, 2012
    Reported below, 2011 NY Slip Op 86009(U).
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Anonymous, an Attorney and Counselor-at-Law, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted November 21, 2011;
    decided January 10, 2012
   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:
    Echostar Satellite L.L.C., Appellant, v ESPN Inc. et al., Respondents.
    Submitted November 28, 2011;
    decided January 10, 2012
    Reported below, 85 AD3d 584.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Kenneth Entler, Appellant, v Eric Koch et al., Defendants, and Boy Scouts of America, Respondent.
    Submitted November 21, 2011;
    decided January 10, 2012
    Reported below, 85 AD3d 1098.
   Motion, insofar as it seeks reargument of appellant’s motion for leave to appeal from the June 2011 Appellate Division order, denied [see 17 NY3d 898 (2011)]; motion, insofar as it seeks leave to appeal from the November 2011 stipulation treated as a final judgment, denied.


text:
    Yvette Huff, Respondent, v Anita L. Rodriguez, Formerly Known as Anita L. Rosario, et al., Appellants.
    Decided January 10, 2012
    Reported below, 88 AD3d 1274.
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order sought to be reviewed does not necessarily affect the final judgment as required by CPLR 5601 (d) (see Karger, Powers of the New York Court of Appeals § 9:5, at 312 [3d ed rev]).


text:
    Gurumurthy Kalyanaram, Appellant, v New York Institute of Technology, Respondent.
    Submitted December 5, 2011;
    decided January 10, 2012
    Reported below, 79 AD3d 418.
   Motion for reargument of motion for leave to appeal denied [see 17 NY3d 712 (2011)].


text:
    Frank D. Maki, Appellant, v Bassett Healthcare et al., Respondents.
    Submitted November 14, 2011;
    decided January 10, 2012
    Reported below, 85 AD3d 1366.
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed the portion of the Supreme Court order granting respondents’ motion for summary judgment and dismissing the complaint, denied; motion for leave to appeal otherwise dismissed upon the ground that the remaining part of the Appellate Division order does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of New York State Urban Development Corporation, Doing Business as Empire State Development Corporation, Respondent, to Acquire in Fee Simple Certain Real Property Currently Owned by Fallsite, LLC and Known as 232 Sixth Street, City of Niagara Falls, and Others, Together with All Compensable Interests Therein Currently Owned by Fallsite, LLC, et al., and Any Other Condemnees Who Are Currently Unknown. Fallsite, LLC, et al., Appellants.
    Submitted November 21, 2011;
    decided January 10, 2012
    Reported below, 85 AD3d 1723.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Carol Rickles, Appellant, v Michael Rickles, Respondent.
    Submitted November 28, 2011;
    decided January 10, 2012
    Reported below, 88 AD3d 780.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Sunrise Harbor Realty, LLC, Appellant, v 35th Sunrise Corp., Respondent, et al., Defendants. (And a Third-Party Action.)
    Submitted November 28, 2011;
    decided January 10, 2012
    Reported below, 86 AD3d 562.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    [962 NE2d 278, 938 NYS2d 853]
    Maryann Imperato et al., Respondents, v Mount Sinai Medical Center et al., Appellants.
    Decided January 12, 2012

      APPEARANCES OF COUNSEL

      Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York City (Richard E. Lerner of counsel), for appellants.

      Arnold E. DiJoseph, P.C., New York City (Arnold E. DiJoseph, III, of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs. The certified question should be answered by stating that the preclusion order was properly vacated.

Under the circumstances of this case, the Appellate Division correctly determined that plaintiffs demonstrated the existence of a meritorious claim for purposes of avoiding preclusion. Specifically, the expert witness disclosure submitted by plaintiffs pursuant to CPLR 3101 (d) (1) (i) detailed the expert medical opinion evidence supporting the claim.

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

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


text:
    In the Matter of Brittany Annette M., a Child Alleged to be Permanently Neglected. Danielle McC., Appellant; Episcopal Social Services, Respondent.
    Submitted November 28, 2011;
    decided January 12, 2012
    Reported below, 88 AD3d 466.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Damian G. and Another, Infants. Oneida County Department of Social Services, Respondent; Jacquelyn M., Appellant, et al., Respondent.
    Submitted October 31, 2011;
    decided January 12, 2012
    Reported below, 88 AD3d 1268.
   Motion for leave to appeal granted. Motion for poor person relief granted.


text:
    Hudson Valley Federal Credit Union, Appellant, v New York State Department of Taxation and Finance et al., Respondents.
    Submitted January 9, 2012;
    decided January 12, 2012
    Reported below, 85 AD3d 415.
   Motion by Federal Housing Finance Agency for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    In the Matter of Marion C.W., a Person Alleged to be Incapacitated. Lisa K. et al., Appellants; Steven Maguire et al., Respondents. Fern Finkel et al., Nonparty Respondents.
    Submitted November 28, 2011;
    decided January 12, 2012
    Reported below, 83 AD3d 1087, 1089.
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the proceeding within the meaning of the Constitution.


text:
    Modern Art Services, Ltd., et al., Appellants, v OCA Long Island City, LLC, Respondent.
    Submitted November 21, 2011;
    decided January 12, 2012
    Reported below, 84 AD3d 1040.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of the Estate of Sandra Murray, Deceased. Jerome Murray, Respondent; Ivan O. Kline, Appellant, et al., Respondents.
    Submitted November 21, 2011;
    decided January 12, 2012
    Reported below, 84 AD3d 106; 2011 NY Slip Op 85698(U).
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument or, in the alternative, leave to appeal to the Court of Appeals, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    New York State Psychiatric Association, Inc., et al., Respondents, v New York State Department of Health, Appellant.
    Submitted September 12, 2011;
    decided January 12, 2012
    Reported below, 71 AD3d 852.
   Motion to strike addendum to appellant’s reply brief and references thereto in appellant’s reply brief granted and this material is deemed stricken.


text:
    Erica L. Niemann et al., as Coadministrators of the Estate of Timothy W. Niemann, Deceased, Appellants, v St. Joseph’s Hospital Health Center et al., Respondents, et al., Defendants.
    Submitted November 28, 2011;
    decided January 12, 2012
    Reported below, 87 AD3d 1395.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Bruce Ovitz, Appellant, v Bloomberg L.P. et al., Respondents.
    Submitted January 9, 2012;
    decided January 12, 2012
    Reported below, 77 AD3d 515.
   Motion by Sirius XM Radio Inc. for leave to appear amicus 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 James Extale, Appellant.
    Submitted January 9, 2012;
    decided January 12, 2012
    Reported below, 78 AD3d 1519.
   Motion by District Attorneys Association of the State of New York for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    The People of the State of New York, Respondent, v Calvin L. Harris, Appellant.
    Submitted December 19, 2011;
    decided January 12, 2012
    Reported below, 88 AD3d 83.
   Motion for waiver of strict compliance with the requirements of the Rules of Practice of the Court of Appeals granted only to the extent that the appeal may be prosecuted upon the original file and an original and seven copies of appellant’s appendix.


text:
    The People of the State of New York, Respondent, v Juan Jose Peque, Also Known as Juan Jose Peque Sicajan, Appellant.
    Submitted January 9, 2012;
    decided January 12, 2012
    Reported below, 88 AD3d 1024.
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York ex rel. Vincent Artis, Appellant, v James Kralik et al., Respondents.
    Submitted November 21, 2011;
    decided January 12, 2012
    Reported below, 2011 NY Slip Op 66570(U); 2011 NY Slip Op 77485(U).
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of John Richard, Appellant, v Mary Batroney et al., Respondents.
    Submitted November 28, 2011;
    decided January 12, 2012
    Reported below, 2011 NY Slip Op 77201(U); 2011 NY Slip Op 83848(U).
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the proceeding within the meaning of the Constitution.


text:
    Caroline Commisso, Appellant, v Steven G. Orshan et al., Respondents.
    Submitted December 19, 2011;
    decided January 17, 2012
    Reported below, 85 AD3d 845.
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Supreme Court’s denial of appellant’s motion to renew, 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:
    Arlene S. Garland, as Executrix of Richard T. Shanor and Ganelle M. Shanor, Deceased, Appellant, v RLI Insurance Company, Respondent, et al., Defendant.
    Submitted December 5, 2011;
    decided January 17, 2012
    Reported below, 79 AD3d 1576.
   Motion for leave to appeal dismissed upon the ground that the judgment sought to be appealed from does not finally determine the action within the meaning of the Constitution. The December 2008 Supreme Court order was the final paper in this action.


text:
    The Goldman Sachs Group, Inc., Respondent, et al., Plaintiff, v Almah LLC, Appellant.
    Submitted December 5, 2011;
    decided January 17, 2012
    Reported below, 85 AD3d 424.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    GS Plasticos Limitada, Appellant, v Bureau Veritas, Respondent, et al., Defendant.
    Submitted December 5, 2011;
    decided January 17, 2012
    Reported below, 80 AD3d 511.
   Motion for reargument of motion for leave to appeal denied with $100 costs and necessary reproduction disbursements [see 17 NY3d 714 (2011)].


text:
    In the Matter of Jahquavius W. Orange County Department of Social Services, Respondent; Quanteria H., Appellant. (Proceeding No. 1.). In the Matter of Jeremiah W. Orange County Department of Social Services, Respondent; Quanteria H., Appellant. (Proceeding No. 2.)
    Submitted November 14, 2011;
    decided January 17, 2012
    Reported below, 86 AD3d 576.
   Motion for leave to appeal dismissed for failure to demonstrate timeliness as required by Rules of the Court of Appeals (22 NYCRR) § 500.22 (b) (2).


text:
    In the Matter of Jatie P., a Neglected Child. Franklin County Department of Social Services, Respondent; Joseph Q., Appellant. (And Another Related Proceeding.)
    Submitted December 12, 2011;
    decided January 17, 2012
    Reported below, 88 AD3d 1178.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Kai Lin, Appellant, v Strong Health et al., Respondents. (And Another Action.)
    Submitted December 5, 2011;
    decided January 17, 2012
    Reported below, 82 AD3d 1585 (Appeal Nos. 1 and 2).
   Motion for reargument of motion for leave to appeal denied [see 17 NY3d 899 (2011)].


text:
    Nives Montero, Respondent, v Carlos Montero, Appellant.
    Submitted November 7, 2011;
    decided January 17, 2012
    Reported below, 85 AD3d 986; 2011 NY Slip Op 83116CU).
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument or, in the alternative, leave to appeal to the Court of Appeals, dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Lijo Panghat, M.D., Appellant, v New York Downtown Hospital, Respondent.
    Submitted December 5, 2011;
    decided January 17, 2012
    Reported below, 85 AD3d 473.
   Motion for relief ancillary to the motion for leave to appeal herein dismissed upon the ground that it does not lie.


text:
    The People of the State of New York ex rel. Ronald Jackson, Appellant, v Mark L. Bradt, as Superintendent of Elmira Correctional Facility, et al., Respondents.
    Submitted December 5, 2011;
    decided January 17, 2012
   Motion for leave to appeal dismissed upon the ground that this motion for leave to appeal does not lie from the order of the individual Justice of the Appellate Division (see NY Const, art VI, § 3 [b]; CPLR 5602).


text:
    In the Matter of John Richard, Appellant, v Christopher Lindquist et al., Respondents.
    Submitted November 28, 2011;
    decided January 17, 2012
    Reported below, 2011 NY Slip Op 83849(U).
   Motion, insofar as it seeks leave to appeal from the September 2011 Appellate Division order, 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:
    Sarah Schottenstein, Appellant, v Windsor Tov, LLC, et al., Respondents, et al., Defendants.
    Submitted November 21, 2011;
    decided January 17, 2012
    Reported below, 85 AD3d 546.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Osqugama F. Swezey, Appellant, v Merrill Lynch, Pierce, Fenner & Smith Inc., Respondent. Philippine National Bank et al., Intervenors-Respondents.
    Submitted December 5, 2011;
    decided January 17, 2012
    Reported below, 87 AD3d 119.
   Motion to enlarge the record denied.


text:
    Maria Swezey, Appellant, v Montague Rehab & Pain Management, P.C., et al., Defendants, and Shama Rasool et al., Respondents.
    Submitted November 21, 2011;
    decided January 17, 2012
    Reported below, 84 AD3d 779.
   Motion, insofar as it seeks leave to appeal from the Appellate Division order affirming Supreme Court’s judgment dismissing the complaint, denied; motion, insofar as it seeks leave to appeal from the other Appellate Division orders, dismissed upon the ground that such orders do not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of the Claim of William B. Taylor, Appellant, v Rochester City School District et al., Respondents. Workers’ Compensation Board, Respondent.
    Submitted December 12, 2011;
    decided January 17, 2012
    Reported below, 2011 NY Slip Op 75976(U).
   Motion for reargument of motion for leave to appeal denied [see 17 NY3d 894 (2011)].


text:
    [963 NE2d 1232, 940 NYS2d 531]
    In the Matter of Daniel Williams, Appellant, v Brian Fischer, Commissioner of the Department of Correctional Services, Respondent.
    Argued January 9, 2012;
    decided February 9, 2012

      APPEARANCES OF COUNSEL

      Prisoners’ Legal Services of New York, Albany (James M. Bogin and Karen Murtagh-Monks of counsel), for appellant.

      Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco, Martin A. Hotvet, Andrea Oser and Barbara D. Underwood of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Petitioner Daniel Williams, an inmate at the Elmira Correctional Facility, was served with a misbehavior report charging him with violating prison rules prohibiting assault and violent conduct. These charges arose from an attack on an inmate who suffered numerous cutting wounds while he was in the “laundry corridor,” which he passed through on his way back to his cell block from the package room. The attack occurred at 10:30 a.m. Following a tier III disciplinary hearing, the hearing officer found petitioner guilty of the charges. He assessed a penalty of 12 months in the Special Housing Unit, and recommended 12 months’ loss of good time. The hearing officer relied principally on detailed information from a confidential informant.

After an unsuccessful administrative appeal, petitioner brought this CPLR article 78 proceeding. He argued that the hearing officer did not make a meaningful independent assessment of the confidential information’s reliability, and improperly declined to call as a witness a correction officer who petitioner thought might corroborate his testimony that he had returned from the infirmary to his cell at 9:30 a.m., an hour before the assault occurred. The Appellate Division confirmed the determination and dismissed the petition, concluding that “[t]he misbehavior report, the hearing testimony and the confidential testimony and documents reviewed by the Hearing Officer in camera provide[d] substantial evidence to support the determination of guilt” (75 AD3d 706 [3d Dept 2010]).

We now affirm. Information from a confidential informant may constitute substantial evidence to support a prison disciplinary determination so long as the hearing officer makes an independent assessment of the informant’s reliability. In the circumstances of this case, the hearing officer adequately questioned the correction officer who interviewed the confidential informant so as to gauge the basis for the informant’s knowledge of the assault and his reliability (see Matter of Abdur Raheem v Mann, 85 NY2d 113, 120-121 [1995]). The inquiry established that the confidential account was detailed and specific; that there were valid reasons to conclude that the informant was reliable; and that there was no reason to think that the informant was motivated by a promise of reward from the prison officials or a personal vendetta against petitioner. Further, the hearing officer did not abuse his discretion when he declined to call as a witness the additional correction officer from whom petitioner sought testimony. The correction officer responsible for monitoring inmate movement to and from petitioner’s cell block on the day in question testified that he does not maintain a written record of the time when an inmate issued a pass comes back to the cell block, and that he did not recall seeing petitioner return. In any event, as the hearing officer observed, testimony about petitioner’s whereabouts at 9:30 a.m. would not preclude his presence in the “laundry corridor” at 10:30 a.m.

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

Judgment affirmed, without costs, in a memorandum.


text:
    [963 NE2d 1234, 940 NYS2d 533]
    In the Matter of the Claim of Kathleen F. Cappellino, Appellant, v Baumann & Sons Bus Company et al., Respondents. Workers’ Compensation Board, Respondent.
    Argued January 5, 2012;
    decided February 9, 2012

      APPEARANCES OF COUNSEL

      Law Office of Joel M. Gluck, Brooklyn (Joel M. Gluck of counsel), for appellant.

      Cherry, Edson & Kelly, LLP, Carle Place (David W. Faber of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the case remitted to that court to remand to the Workers’ Compensation Board for further proceedings in accordance with the following memorandum.

John Cappellino was employed by Baumann & Sons Bus Company as a bus driver. In July 2000, while supervising a van and bus wash, he suffered a fatal heart attack. Claimant, the decedent’s wife, brought a claim for death benefits under the Workers’ Compensation Law.

A Workers’ Compensation Law Judge found that the employer failed to file its notice of controversy (C-7) within 25 days of the mailing of the notice that the case had been indexed, as required by Workers’ Compensation Law § 25 (2) (b). That provision provides, in relevant part, as follows:

“Failure to file the notice of controversy within the prescribed twenty-five day time limit shall bar the employer and its insurance carrier from pleading that the injured person was not at the time of the accident an employee of the employer, or that the employee did not sustain an accidental injury, or that the injury did not arise out of and in the course of the employment.”

Nevertheless, a hearing was held at which a physician retained by the employer was permitted to testify that, in his opinion, decedent’s work activity was not a precipitating cause of his death. That was error.

On appeal, the Workers’ Compensation Board found that the employer’s physician provided contrary medical evidence to the claimant’s proof and demonstrated a significant issue as to the accuracy of the factual history relied upon by the claimant’s doctor. Based on this finding, it concluded that further development of the issue of causal relationship was warranted and the case was referred to an Impartial Specialist, who considered, among other things, the testimony of the employer’s physician. The Impartial Specialist opined that the “evidence for causal relation to work” was inadequate. Both the Workers’ Compensation Board and the Appellate Division later relied on these findings in holding that decedent’s death was not causally related to his work.

Here, there is an undisputed finding that the employer untimely filed the notice of controversy and there was no showing of good cause or other reason to excuse the failure. Thus, the employer should have been precluded from offering its physician’s testimony to dispute claimant’s evidence on the issue of causation. The Board must determine, without regard to the employer’s proof, whether claimant, in the first instance, demonstrated that the decedent’s death was work-related.

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

Order reversed, etc.


text:
    Altshuler Shaham Provident Funds, Ltd., Appellant, v GML Tower LLC, et al., Defendants, and The Pike Company, Inc., et al., Respondents.
    Submitted December 12, 2011;
    decided February 9, 2012
    Reported below, 83 AD3d 1563.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Andrew William V. Westchester County Department of Social Services, Respondent; Chantal Jean G., Appellant. (And Another Proceeding.)
    Submitted December 12, 2011;
    decided February 9, 2012
    Reported below, 2011 NY Slip Op 63243(U).
   Motion for reargument of motion for leave to appeal denied [see 17 NY3d 947 (2011)].


text:
    Danielle Biton, Appellant, et al., Plaintiff, v Aloft Corporate Travel, Inc., et al., Respondents.
    Submitted November 7, 2011;
    decided February 9, 2012
    Reported below, 2008 NY Slip Op 79906(U).
   Motion for reargument of motion for leave to appeal denied [see 17 NY3d 844 (2011)].


text:
    Danielle Biton et al., Appellants, v Ameena Meer et al., Respondents.
    Submitted November 7, 2011;
    decided February 9, 2012
    Reported below, 2010 NY Slip Op 60102(U).
   Motion for reargument of motion for leave to appeal denied [see 17 NY3d 845 (2011)].


text:
    Crystal Biton, Also Known as Saphyre Redford, et al., Appellants, v State Farm Insurance Company et al., Respondents.
    Submitted November 7, 2011;
    decided February 9, 2012
    Reported below, 2008 NY Slip Op 88892(U).
   Motion for reargument of motion for leave to appeal denied [see 17 NY3d 845 (2011)].


text:
    Crystal Biton, Also Known as Saphyre Bedford, Appellant, v Joe Turco et al., Respondents.
    Submitted November 7, 2011;
    decided February 9, 2012
    Reported below, 2008 NY Slip Op 88890(U).
   Motion for reargument of motion for leave to appeal denied [see 17 NY3d 845 (2011)].


text:
    In the Matter of Michael Lesher, Appellant, v Charles J. Hynes, as District Attorney of Kings County, New York, et al., Respondents.
    Submitted January 23, 2012;
    decided February 9, 2012
    Reported below, 80 AD3d 611.
   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.


text:
    The People of the State of New York, Respondent, v Trevis D. Baker, Appellant. (Appeal No. 1.)
    Submitted February 6, 2012;
    decided February 9, 2012
    Reported below, 82 AD3d 1656.
   Motion for assignment of counsel granted and Timothy P. Donaher, Esq., Monroe County Public Defender, 10 N. Fitzhugh Street, Rochester, New York 14614 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Trevis D. Baker, Appellant. (Appeal No. 2.)
    Submitted February 6, 2012;
    decided February 9, 2012
    Reported below, 82 AD3d 1657.
   Motion for assignment of counsel granted and Timothy P. Donaher, Esq., Monroe County Public Defender, 10 N. Fitzhugh Street, Rochester, New York 14614 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Robert Barksdale, Appellant.
    Submitted February 6, 2012;
    decided February 9, 2012
    Reported below, 2011 NY Slip Op 72276(U).
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Dale Bradley, Appellant.
    Submitted January 23, 2012;
    decided February 9, 2012
    Reported below, 83 AD3d 1444.
   Motion for assignment of counsel granted and Timothy P. Donaher, Esq., Monroe County Public Defender, 10 N. Fitzhugh Street, Rochester, New York 14614 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Donald M. Dove, Appellant.
    Submitted January 17, 2012;
    decided February 9, 2012
    Reported below, 89 AD3d 1153.
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Corey Gamble, Appellant.
    Submitted January 9, 2012;
    decided February 9, 2012
    Reported below, 72 AD3d 544.
   Motion to supplement pro se appendix granted.


text:
    The People of the State of New York, Appellant, v Brandon McFadden, Respondent.
    Submitted February 6, 2012;
    decided February 9, 2012
    Reported below, 87 AD3d 554.
   Motion for assignment of counsel granted and Lynn W.L. Fahey, 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 Darnell Norton, Appellant.
    Submitted January 23, 2012;
    decided February 9, 2012
    Reported below, 87 AD3d 1310.
   Motion for assignment of counsel granted and Timothy P. Donaher, Esq., Monroe County Public Defender, 10 N. Fitzhugh Street, Rochester, New York 14614 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Michael Palmer, Appellant.
    Submitted February 6, 2012;
    decided February 9, 2012
    Reported below, 88 AD3d 676.
   Motion for poor person relief granted.


text:
    The People of the State of New York, Respondent-Appellant, v Christopher Perino, Appellant-Respondent.
    Submitted January 17, 2012;
    decided February 9, 2012
    Reported below, 76 AD3d 466.
   Motion to supplement the record denied.


text:
    The People of the State of New York, Respondent, v Daniel Vasquez, Appellant.
    Submitted January 17, 2012;
    decided February 9, 2012
    Reported below, 87 AD3d 1042.
   Motion for assignment of counsel granted and Lynn W.L. Fahey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Samuel Walker, Appellant.
    Submitted January 30, 2012;
    decided February 9, 2012
    Reported below, 88 AD3d 1287.
   Motion for assignment of counsel granted and David C. Schopp, Esq., the 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:
    The People of the State of New York, Respondent, v Carl Watson, Appellant.
    Submitted January 23, 2012;
    decided February 9, 2012
    Reported below, 84 AD3d 1126.
   Motion for assignment of counsel granted and Lynn W.L. Fahey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Morris B. Yuson, Appellant.
    Submitted January 23, 2012;
    decided February 9, 2012
    Reported below, 83 AD3d 1502.
   Motion for assignment of counsel granted and Timothy P. Donaher, Esq., Monroe County Public Defender, 10 N. Fitzhugh Street, Rochester, New York 14614 assigned as counsel to the appellant on the appeal herein.


text:
    Freda Gates Pozefsky, Appellant, v Richard T. Aulisi et al., Respondents, et al., Defendants.
    Submitted December 5, 2011;
    decided February 9, 2012
    Reported below, 79 AD3d 467; 2011 NY Slip Op 62755(U).
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    In the Matter of Benjamin Seegars, Appellant, v Brian S. Fischer, as Commissioner of Correctional Services, et al., Respondents.
    Submitted October 24, 2011;
    decided February 9, 2012
    Reported below, 84 AD3d 1653.
   Motion for reargument of motion for leave to appeal denied [see 17 NY3d 711 (2011)].


text:
    Jill Williams et al., Respondents, v State of New York, Appellant.
    Submitted February 6, 2012;
    decided February 9, 2012
    Reported below, 84 AD3d 412.
   Motion by Marvin Bernstein, Director of Mental Hygiene Legal Service, First Judicial Department, et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 19 copies filed within seven days.


text:
    In the Matter of World Trade Center Bombing Litigation. Steering Committee et al., Respondents, v The Port Authority of New York and New Jersey, Appellant.
    Submitted October 31, 2011;
    decided February 9, 2012
    Reported below, 51 AD3d 337.
   Motion for reargument denied with $100 costs and necessary reproduction disbursements [see 17 NY3d 428 (2011)].

Concur: Judges Ciparick, Graffeo, Read, Pigott, Jones, Prudenti and Mercure.

Taking no part: Chief Judge Lippman and Judge Smith.

       Designated pursuant to NY Constitution, article VI, § 2.


text:
    Pinhas Zachery, Respondent, v Crystal Biton, Appellant.
    Submitted November 7, 2011;
    decided February 9, 2012
    Reported below, 2010 NY Slip Op 60092(U).
   Motion for reargument of motion for leave to appeal denied [see 17 NY3d 850 (2011)].


text:
    [963 NE2d 785, 940 NYS2d 208]
    VBH Luxury, Incorporated, Plaintiff, v 940 Madison Associates LLC, Defendant and Third-Party Plaintiff-Respondent. Excelsior Insurance Company, Third-Party Defendant-Appellant, et al., Third-Party Defendant.
    Decided February 14, 2012

      APPEARANCES OF COUNSEL

      Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York City (Richard E. Lerner and Judy C. Selmeci of counsel), for third-party appellant.

      Baker & Hostetler LLP, New York City (David Einhorn of counsel), for third-party respondent.
   OPINION OF THE COURT

Memorandum.

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

Third-party plaintiff landlord 940 Madison Associates LLC is an additional insured under a commercial general liability policy issued by third-party defendant Excelsior Insurance Company to plaintiff tenant VBH Luxury, Inc. “only with respect to liability arising out of the ownership, maintenance or use of that part of the premises leased to [tenant].” Although landlord would be entitled to a defense in an action commenced against it by a third party for an injury suffered on the leased premises (see ZKZ Assoc. v CNA Ins. Co., 89 NY2d 990, 991 [1997]), the policy does not provide coverage for liability to its co-insured for damage to property owned, rented, or occupied by the insured (see Insurance Corp. of N.Y. v Cohoes Realty Assoc., L.P., 50 AD3d 1228, 1229-1230 [3d Dept 2008]; Utica Mut. Ins. Co. v Watertown Indus. Ctr. Local Dev. Corp., 9 AD3d 836, 837 [4th Dept 2004], Iv denied 11 AD3d 1053 [4th Dept 2004]). Thus, Excelsior was not obligated to defend landlord in the underlying action.

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

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


text:
    Cheneise E. Carey, Appellant, v Empire Paratransit Corp. et al., Respondents.
    Submitted December 27, 2011;
    decided February 14, 2012
    Reported below, 85 AD3d 520.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    The Empire Center for New York State Policy, Appellant, v New York City Police Pension Fund, Respondent.
    Submitted December 19, 2011;
    decided February 14, 2012
    Reported below, 88 AD3d 520.
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    The Empire Center for New York State Policy, Appellant, v New York City Police Pension Fund, Respondent.
    Submitted December 27, 2011;
    decided February 14, 2012
    Reported below, 88 AD3d 520.
   Motion by the Albany Times Union et al. for leave to file a brief amici curiae on the motion for leave to appeal herein denied.


text:
    Bernard H. Glatzer, Appellant, v Bear, Stearns & Co., Inc., et al., Respondents.
    Decided February 14, 2012
    Reported below, 2011 NY Slip Op 85629(U).
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Shawn Green, Appellant, v State of New York, Respondent.
    Submitted December 27, 2011;
    decided February 14, 2012
    Reported below, 2011 NY Slip Op 88906(U).
   Motion, insofar as it seeks leave to appeal from the Court of Claims judgment, dismissed upon the ground that it does not lie (see CPLR 5602); motion, insofar as it seeks leave to appeal from the Appellate Division order denying appellant’s motion for reargument, 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:
    Elizabeth O’Connor Little et al., Appellants, v New York State Task Force on Demographic Research and Reapportionment et al., Defendants, and Michael Bailey et al., Intervenors-Respondents.
    Decided February 14, 2012
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Third Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).


text:
    Marko S., Also Known as Marko Alexander S., Also Known as Marko A., Respondent, v Heather S., Also Known as Heather Kim S., Appellant.
    Submitted December 27, 2011;
    decided February 14, 2012
    Reported below, 2011 NY Slip Op 77742(D).
   Motion for reargument and other relief denied [see 17 NY3d 900 (2011)].


text:
    In the Matter of Nechama Markovici, Appellant, v Lazar Markovici, Respondent.
    Submitted December 27, 2011;
    decided February 14, 2012
    Reported below, 2011 NY Slip Op 89469(D).
   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. Motions for poor person relief and a stay dismissed as academic.


text:
    Charles McKie, Appellant, v Adam Saheed et al., Defendants, and Flagstar Bank, FSB, Respondent.
    Submitted December 19, 2011;
    decided February 14, 2012
    Reported below, 2011 NY Slip Op 88539(D).
   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 a stay and ancillary relief dismissed as academic.


text:
    In the Matter of M.G.M. Insulation, Inc., et al., Appellants, v Colleen C. Gardner, as Commissioner of Labor, Respondent.
    Submitted December 5, 2011;
    decided February 14, 2012
    Reported below, 86 AD3d 812.
   Motion by the Empire State Chapter of the Associated Builders and Contractors, 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, and for leave to file a brief amicus curiae on the appeal herein granted, three copies of the brief to be served and an original and 19 copies filed within 30 days.


text:
    In the Matter of M.G.M. Insulation, Inc., et al., Appellants, v Colleen C. Gardner, as Commissioner of Labor, Respondent.
    Submitted December 5, 2011;
    decided February 14, 2012
    Reported below, 86 AD3d 812.
   Motion by the Firemen’s Association of the State of New York for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed, and for leave to file a brief amicus curiae on the appeal herein granted, three copies of the brief to be served and an original and 19 copies filed within 30 days.


text:
    In the Matter of M.G.M. Insulation, Inc., et al., Appellants, v Colleen C. Gardner, as Commissioner of Labor, Respondent.
    Submitted December 5, 2011;
    decided February 14, 2012
    Reported below, 86 AD3d 812.
   Motion by Associated General Contractors of New York State, LLC for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed, and for leave to file a brief amicus curiae on the appeal herein granted, three copies of the brief to be served and an original and 19 copies filed within 30 days.


text:
    Michael Mulgrew, as President of the United Federation of Teachers, Local 2, American Federation of Teachers, AFL-CIO, on Behalf of All Represented Employees in the City School District of the City of New York, Appellant, v Board of Education of the City School District of the City of New York et al., Respondents. Dow Jones & Company, Inc., et al., Intervenors-Respondents.
    Submitted December 27, 2011;
    decided February 14, 2012
    Reported below, 87 AD3d 506.
   Motion by New York State United Teachers for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed, and for leave to file a brief amicus curiae on the appeal herein dismissed as academic.


text:
    In the Matter of Nathan O., Respondent, v Jennifer P. et al., Appellants. (And Another Related Proceeding.)
    Submitted December 19, 2011;
    decided February 14, 2012
    Reported below, 88 AD3d 1125.
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    The People of the State of New York ex rel. Julio C. Borrele, Appellant, v New York State Board of Parole, Respondent.
    Submitted January 9, 2012;
    decided February 14, 2012
    Reported below, 85 AD3d 1515.
   Motion for reargument of motion for leave to appeal denied [see 17 NY3d 718 (2011)].


text:
    In the Matter of State of New York, Respondent, v C.B., Appellant.
    Submitted December 5, 2011;
    decided February 14, 2012
    Reported below, 88 AD3d 599.
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


text:
    [964 NE2d 399, 941 NYS2d 28]
    Jennifer D. Martino, Respondent, v Michael A. Stolzman, Respondent, and Michael Oliver et al., Appellants. (Action No. 1.) Judith A. Rost, Respondent, v Michael A. Stolzman et al., Respondents, and Michael Oliver et al., Appellants. (Action No. 2.)
    Argued January 9, 2012;
    decided February 16, 2012

      APPEARANCES OF COUNSEL

      Hagelin Kent LLC, Buffalo (Victor M. Wright of counsel), for appellants in the first and second above-entitled actions.

      Chiacchia & Fleming LLP, Hamburg (Lisa A. Poch, Sarah P. Rera and Daniel J. Chiacchia of counsel), for Jennifer D. Martino, respondent in the first above-entitled action.

      Kenney Shelton Liptak Nowak LLP, Buffalo (Amanda L. Machacek of counsel), for Michael A. Stolzman, respondent in the first and second above-entitled actions.

      Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of counsel), for Judith A. Rost, respondent in the second above-entitled action.

      Barth Sullivan Behr, Buffalo (Sarah P Rera of counsel), for Gina L. Avino and another, respondents in the second above-entitled action.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be reversed, with costs, the Oliver defendants’ motion for summary judgment granted, the complaint in action No. 1 and the amended complaint in action No. 2 dismissed against them, and the certified question answered in the negative.

On the evening of December 31, 2006 and into January 1, 2007, Michael and Susan Oliver (the Olivers) hosted a New Year’s Eve party at their home in Gasport, New York. Michael Stolzman, and his friend, Judith Rost, attended the party and consumed alcohol. At approximately 12:30 a.m., Stolzman left the party and got into his truck, with Rost in the passenger seat. Stolzman backed his truck out of the Olivers’ driveway onto the main road and collided with an oncoming vehicle driven by Jennifer Martino. Martino sustained severe injuries, including a dislocated ankle and leg fractures. Rost also suffered severe injuries, including fractures of her hip, pelvis, and spine, an amputated finger, and herniated discs. Following the accident, a test revealed that Stolzman had a blood alcohol content of .14%, nearly twice the legal limit. He later pleaded guilty to driving while intoxicated (see Vehicle and Traffic Law § 1192 [3]).

Martino and Rost commenced separate actions against various defendants including the Olivers alleging, as relevant here, claims for a violation of the Dram Shop Act (General Obligations Law § 11-101) and common-law negligence. Essentially, Martino and Rost allege in their respective complaints that the Olivers served Stolzman an unreasonable amount of alcohol rendering him intoxicated and failed to control Stolzman while he was on their property. Martino and Rost also allege that the Olivers had a duty to warn Stolzman that, as he exited their driveway, vehicles parked on the road adjacent to the driveway may obstruct the view.

The Olivers filed one motion as to both actions, seeking dismissal of the Dram Shop Act claims and summary judgment as to the common-law negligence claims. Supreme Court denied the Olivers’ motion in its entirety. The Olivers appealed the order, and the parties agreed to consolidate the appeals and have them perfected in one record.

The Appellate Division, with two Justices dissenting in part, modified the order by granting the Olivers’ motion to dismiss the Dram Shop Act claims in both actions, and as so modified, affirmed (see Martino v Stolzman, 74 AD3d 1764, 1765 [4th Dept 2010]). In affirming Supreme Court’s denial of the Olivers’ motion for summary judgment as to the common-law negligence claims, the majority concluded that “there is an issue of fact whether the Olivers knew or should have known that Stolzman left the party in a dangerous state of intoxication” (id. at 1766). The majority also opined that “[t]he Olivers both had an opportunity to control or at least to guide Stolzman as he exited their driveway,” observing that the Olivers had “acknowledged that sightlines near the end of their driveway were limited at the time of the accident” (id. at 1767).

The dissenting Justices would have granted the Olivers’ motion for summary judgment as to the common-law negligence claims (see id.). The dissenters concluded that the Olivers had no duty to prevent Stolzman “from leaving their house or to assist him in pulling out of their driveway in his vehicle” (id.).

The same panel of the Appellate Division granted the Olivers’ motion for leave to appeal to this Court (see Martino v Stolzman, 79 AD3d 1832 [4th Dept 2010]), and certified this question: “Was the order of this Court entered June 11, 2010 properly made?” We now reverse and answer the certified question in the negative.

It has long been the rule in New York that “[l]andowners in general have a duty to act in a reasonable manner to prevent harm to those on their property” (D’Amico v Christie, 71 NY2d 76, 85 [1987]). “In particular, they have a duty to control the conduct of third persons on their premises when they have the opportunity to control such persons” (id.). Here, the Olivers were no longer in a position to control Stolzman when he entered his vehicle and drove away. Furthermore, we agree with the dissenting Justices at the Appellate Division that “requiring social hosts to prevent intoxicated guests from leaving their property would inappropriately expand the concept of duty” (Martino, 74 AD3d at 1767).

We also conclude that the Olivers had no duty to assist Stolzman as he pulled out of their driveway, or otherwise warn him that vehicles parked along the road next to the driveway may obstruct the view when exiting. Of course, “a landowner’s duty to warn of a latent, dangerous condition on his property is a natural counterpart to his duty to maintain his property in a reasonably safe condition” (Galindo v Town of Clarkstown, 2 NY3d 633, 636 [2004]). In this case, the vehicles parked adjacent to the Olivers’ driveway did not create a latent or dangerous condition on the Olivers’ property. That the Olivers may have been aware of this potential obstruction did not create a duty on their part to assist or warn Stolzman (see Pulka v Edelman, 40 NY2d 781, 785 [1976], rearg denied 41 NY2d 901 [1977] [“(f)oreseeability should not be confused with duty”]).

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

Order, insofar as appealed from, reversed, etc.


text:
    [963 NE2d 1257, 940 NYS2d 556]
    Christine M. Stuto, Appellant, v Gregory G. Kerber et al., Defendants, and William J. McNeary III et al., Respondents.
    Argued January 10, 2012;
    decided February 16, 2012
    APPEARANCES OF COUNSEL

      Cooper, Erving, Savage LLP, Albany (Phillip G. Steck of counsel), for appellant.

      Driver Greene, LLP, Albany (John D. Hoggan, Jr., of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff Christine M. Stuto was employed by Wurld Media, Inc., a corporation organized under the laws of the State of Delaware. In May 2006, after encountering financial difficulties, Wurld Media stopped paying plaintiffs salary. She continued working, however, in the hope that the corporation’s financial position would improve. It did not, and the corporation closed. Plaintiff thereafter obtained a judgment against Wurld Media for unpaid wages and commenced this action against Wurld Media’s 10 largest shareholders to recover the unpaid wages pursuant to Business Corporation Law § 630. Supreme Court granted the motion of three defendant shareholders to dismiss the complaint on the ground that the statute does not apply to foreign corporations, and the Appellate Division affirmed.

We agree with the courts below that the plain language and history of Business Corporation Law § 630 (see Armstrong v Dyer, 268 NY 671 [1935]), as well as other relevant portions of the Business Corporation Law (see Business Corporation Law § 102 [a] [4], [7]; § 1319), reveal that section 630 applies to only domestic corporations, and not to foreign corporations.

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Albany Law School et al., Respondents-Appellants, v New York State Office of Mental Retardation and Developmental Disabilities et al., Appellants-Respondents.
    Submitted February 14, 2012;
    decided February 16, 2012
    Reported below, 81 AD3d 145.
   Motion by National Disability Rights Network, Inc. et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 19 copies filed within seven days.


text:
    Maria Auqui et al., Respondents, v Seven Thirty One Limited Partnership et al., Appellants.
    Submitted February 6, 2012;
    decided February 16, 2012
    Reported below, 83 AD3d 407.
   Motion by Consolidated Edison Company of New York, Inc. for leave to appear amicus curiae on the appeal herein denied.

Chief Judge Lippman taking no part.


text:
    Thomas E. Dombrowski, Respondent, v Raymond W. Bulson, Appellant.
    Submitted February 14, 2012;
    decided February 16, 2012
    Reported below, 79 AD3d 1587.
   Motion by Ganpat Ramcharran for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 19 copies filed within seven days.


text:
    Betty Floyd, Appellant, v State of New York Division of Human Rights, Respondent.
    Submitted December 27, 2011;
    decided February 16, 2012
    Reported below, 2010 NY Slip Op 85297(U).
   Motion for reargument denied [see 17 NY3d 899 (2011)].


text:
    Kathryn Jordan, Appellant, v Bates Advertising Holdings, Inc., Formerly Known as AC & R Advertising, Inc., Respondent.
    Submitted December 19, 2011;
    decided February 16, 2012
    Reported below, 2011 NY Slip Op 88663(U).
   Motion for leave to appeal dismissed upon the ground that it does not lie (see CPLR 5602 [a]).

Chief Judge Lippman taking no part.


text:
    Cary Kittner, Individually and as Assignee of Stuart Quimby, et al., Appellants, v Eastern Mutual Insurance Company, Respondent.
    Submitted January 9, 2012;
    decided February 16, 2012
    Reported below, 80 AD3d 843.
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    In the Matter of Chandra LaSonde et al., Respondents, v Norman Seabrook et al., Appellants.
    Submitted December 27, 2011;
    decided February 16, 2012
    Reported below, 89 AD3d 132.
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    In the Matter of Eyal Ovadia et al., Appellants, v Office of the Industrial Board of Appeals et al., Respondents.
    Submitted February 14, 2012;
    decided February 16, 2012
    Reported below, 81 AD3d 457.
   Motion by Mason Tenders’ District Council of Greater New York & Long Island et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 19 copies filed within seven days.


text:
    Scott M. Pankoff, Appellant, v Lisa B. Pankoff, Respondent.
    Submitted December 12, 2011;
    decided February 16, 2012
    Reported below, 84 AD3d 690.
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument or, in the alternative, leave to appeal to the Court of Appeals, dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    The People of the State of New York, Respondent, v Mickey Cass, Appellant.
    Submitted January 30, 2012;
    decided February 16, 2012
    Reported below, 79 AD3d 768.
   Motion for removal of assigned counsel and permission to proceed pro se on appeal denied. Motion to enlarge the record on appeal denied.


text:
    The People of the State of New York, Appellant, v Randolfo Diaz, Respondent.
    Submitted February 14, 2012;
    decided February 16, 2012
    Reported below, 85 AD3d 1047.
   Motion for assignment of counsel granted and Lynn W.L. Fahey, 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 Martin Heidgen, Appellant.
    Submitted January 23, 2012;
    decided February 16, 2012
    Reported below, 87 AD3d 1016.
   Motion for assignment of counsel granted and Jillian S. Harrington, Esq., PO Box 6006, Monroe Township, New Jersey 08831 assigned as counsel to the appellant on the appeal herein. Motion for waiver of strict compliance with the requirements of the Rules of Practice of the Court of Appeals granted only to the extent that the appeal may be prosecuted upon the original file and an original and nine copies of appellant’s brief and appendix.


text:
    The People of the State of New York, Respondent, v Martin Heidgen, Appellant.
    Submitted February 14, 2012;
    decided February 16, 2012
    Reported below, 87 AD3d 1035.
   Motion for assignment of counsel granted and Jillian S. Harrington, Esq., PO Box 6006, Monroe Township, New Jersey 08831 assigned as counsel to the appellant on the appeal herein. Motion for waiver of strict compliance with the requirements of the Rules of Practice of the Court of Appeals granted only to the extent that the appeal may be prosecuted upon the original file and an original and nine copies of appellant’s brief and appendix.


text:
    The People of the State of New York, Respondent, v Arleme Nesbitt, Appellant.
    Submitted February 14, 2012;
    decided February 16, 2012
    Reported below, 89 AD3d 447.
   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 Vincent Rodriguez, Appellant.
    Submitted. February 14, 2012;
    decided February 16, 2012
    Reported below, 88 AD3d 557.
   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 Mikal Smith, Appellant.
    Submitted February 14, 2012;
    decided February 16, 2012
    Reported below, 87 AD3d 920.
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    In the Matter of the Estate of Kevin W. Stanley, Deceased. Diane R. Stanley, Appellant; Lawrence J. Mattar, Esq., et al., Respondents. In the Matter of the Estate of Kathleen A. Stanley, Deceased. Richard T. Stanley, Appellant; Lawrence J. Mattar, Esq., et al., Respondents.
    Submitted November 28, 2011;
    decided February 16, 2012
   On the Court’s own motion, appeal by Diane R. Stanley dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. On the Court’s own motion, appeal by Richard T. Stanley dismissed, without costs, upon the ground that appellant is not a party aggrieved. Motion for leave to appeal, insofar as made by Diane R. Stanley, denied; motion for leave to appeal, insofar as made by Richard T. Stanley, dismissed upon the ground that said appellant is not a party aggrieved.


text:
    Ricky D. West et al., Appellants-Respondents, v Mark Hogan et al., Respondents-Appellants. (And a Third-Party Action.)
    Submitted December 19, 2011;
    decided February 16, 2012
    Reported below, 88 AD3d 1247.
   On the Court’s own motion, appeal by defendants dismissed, without costs, upon the ground that the Appellate Division order appealed from does not finally determine the action within the meaning of the Constitution. Motion by plaintiffs for leave to appeal dismissed upon the ground that the Appellate Division order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Plaintiffs’ stipulation to a reduction in damages as an alternative to a new trial is invalid under the circumstances of this case and leaves the action pending for a new trial. Plaintiffs stipulated to the reduced amount in lieu of a new trial on punitive damages, purporting to reserve a right to challenge the stipulated amount of damages on appeal. By operation of law, plaintiffs cannot so provide. A stipulation in such circumstances makes the damage award nonappealable by plaintiffs (see Dudley v Perkins, 235 NY 448, 457 [1923]). Thus, under these circumstances, plaintiffs’ stipulation must be rejected. Either a new unconditional stipulation by plaintiffs accepting the reduced damage award must be filed or the parties must proceed to a new trial on punitive damages.


text:
    [965 NE2d 958, 942 NYS2d 456]
    James L. Melcher, Appellant, v Apollo Medical Fund Management L.L.C. et al., Respondents.
    Decided February 21, 2012

      APPEARANCES OF COUNSEL

      Patterson Belknap Webb & Tyler LLP, New York City (Stephen P. Younger of counsel), for appellant.

      Windels Marx Lane & Mittendorf, LLP, New York City (Scott R. Matthews of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be reversed, with costs, the appeals by plaintiff that were dismissed in the October 2010 order of the Appellate Division reinstated, and the case remitted to the Appellate Division for further proceedings in accordance with this memorandum.

In its October 2010 order, brought up for review on this appeal, the Appellate Division sua sponte dismissed plaintiffs appeals without articulating the basis for its order. We conclude that dismissal was an abuse of discretion. No grounds for dismissing the appeals appear tenable from the record. Plaintiff timely perfected his appeals under the First Department’s rules, and the court did not give plaintiff adequate notice if it shortened the time period for him to perfect the appeals. On this record, the appeals could not have been properly dismissed for failure to comply with the court’s orders. Accordingly, plaintiffs appeals that were dismissed by the October 2010 Appellate Division order should be reinstated and the case remitted to the Appellate Division to consider the merits of those appeals. In light of this remittal, we do not reach the other issue raised by plaintiff on this appeal.

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

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


text:
    In the Matter of Alexander John B. and Another, Children Alleged to be Abandoned. Cynthia A., Appellant; Cardinal McCloskey Services et al., Respondents.
    Submitted January 3, 2012;
    decided February 21, 2012
    Reported below, 87 AD3d 927.
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Family Court’s denial of the motion to vacate, dismissed upon the ground that such portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Cynthia A. Bell, Appellant, v 24-26 East 82nd Street Corporation et al., Respondents.
    Submitted January 9, 2012;
    decided February 21, 2012
    Reported below, 2011 NY Slip Op 75563(U).
   Motion to dismiss appeal granted and appeal, insofar as taken against defendants Carter Ledyard & Milburn LLP, Ronald Spencer, Davis Polk & Wardwell LLL Ogden Lewis and Larry Jacobs, dismissed as untimely (see CPLR 5513 [a]); appeal otherwise dismissed upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Lee Bordeleau et al., Respondents, v State of New York et al., Appellants.
    Submitted January 23, 2012;
    decided February 21, 2012
    Reported below, 74 AD3d 1688.
   Motion for reargument denied with $100 costs and necessary reproduction disbursements [see 18 NY3d 305 (2011)].


text:
    In the Matter of Christopher James A., a Child Alleged to be Neglected. Anne Elizabeth Pierre L., Appellant; New Alternatives for Children, Inc., Respondent.
    Submitted January 17, 2012;
    decided February 21, 2012
    Reported below, 90 AD3d 515.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Kathleen M. Clark, Respondent, v Michael J. Clark, Appellant.
    Submitted January 9, 2012;
    decided February 21, 2012
    Reported below, 88 AD3d 1095; 85 AD3d 1350.
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the proceedings within the meaning of the Constitution.


text:
    Gennady Gorelik, Appellant, v Elena Gorelik, Respondent.
    Submitted December 12, 2011;
    decided February 21, 2012
    Reported below, 85 AD3d 859; 85 AD3d 856; 71 AD3d 730; 71 AD3d 729; 2011 NY Slip Op 85548(U); 2011 NY Slip Op 85547(U).
   On the Court’s own motion, appeal, insofar as taken from that part of the June 14, 2011 Appellate Division order that affirmed the February 22, 2010 Supreme Court judgment, dismissed without costs, upon the ground that no substantial constitutional question is directly involved; appeal otherwise dismissed upon the ground that the remaining part of the June 14, 2011 Appellate Division order, and the other orders appealed from, do not finally determine the action within the meaning of the Constitution. Motion for a stay dismissed as academic. Motion for poor person relief dismissed as academic.


text:
    Yvette Huff, Respondent, v Anita L. Rodriguez, Formerly Known as Anita L. Rosario, et al., Appellants.
    Submitted January 17, 2012;
    decided February 21, 2012
    Reported below, 88 AD3d 1274.
   Motion for leave to appeal denied with $100 costs and necessary reproduction disbursements. Motion for a stay dismissed as academic.


text:
    John Holdings, Inc., Appellant, v Nick & Duke, LLC, et al., Respondents, et al., Defendants.
    Submitted January 23, 2012;
    decided February 21, 2012
    Reported below, 83 AD3d 444; 2011 NY Slip Op 90384(U).
   Motion, insofar as it seeks leave to appeal from that portion of the November 2011 Appellate Division order denying appellant’s motion for reargument/renewal or, in the alternative, leave to appeal to the Court of Appeals, 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:
    Nizam Peter Kettaneh et al., Appellants, v Board of Standards and Appeals of the City of New York et al., Respondents. Landmark West! Inc. et al., Appellants, v Board of Standards and Appeals of the City of New York et al., Respondents.
    Submitted December 19, 2011;
    decided February 21, 2012
    Reported below, 85 AD3d 620; 2011 NY Slip Op 87169(U).
   Motion by Nizam Peter Kettaneh et al. insofar as it seeks leave to appeal from the Appellate Division order denying re-argument or, in the alternative, leave to appeal to the Court of Appeals, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion by Landmark West! Inc. et al. for leave to appeal denied.


text:
    Deborah Rae Lamb et al., Appellants, v Governor for New York State et al., Respondents.
    Decided February 21, 2012
    Reported below, 90 AD3d 716.
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    LZG Realty, LLC, et al., Respondents, v H.D.W. 2005 Forest, LLC, Appellant, and Eli Weinstein, et al., Respondents, et al., Defendants. (And Other Actions.)
    Submitted January 3, 2012;
    decided February 21, 2012
    Reported below, 87 AD3d 727.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the actions within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v Tobias Boyland, Appellant.
    Submitted January 23, 2012;
    decided February 21, 2012
    Reported below, 79 AD3d 1658.
   Motion to vacate this Court’s December 29, 2011 dismissal order granted [see 18 NY3d 856 (2011)].


text:
    In the Matter of Troy Sand & Gravel Company, Inc., et al., Appellants, v Town of Nassau et al., Respondents.
    Submitted January 3, 2012;
    decided February 21, 2012
    Reported below, 89 AD3d 1178.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action/proceeding within the meaning of the Constitution and is not an order of thé type provided for in CPLR 5602 (a) (2).


text:
    2470 Cadillac Resources, Inc., et al., Appellants, v DHL Express (USA), Inc., Respondent, et al., Defendant.
    Submitted January 9, 2012;
    decided February 21, 2012
    Reported below, 84 AD3d 697.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Vincent David Urban, Respondent, v City of Albany, Appellant.
    Submitted January 9, 2012;
    decided February 21, 2012
    Reported below, 90 AD3d 1132.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Zechariah J., a Child Alleged to be Neglected. Orange County Department of Social Services, Respondent; Valrick J., Appellant.
    Submitted January 23, 2012;
    decided February 21, 2012
    Reported below, 84 AD3d 1087.
   Motion for reargument of motion for leave to appeal denied [see 18 NY3d 802 (2011)].


text:
    [965 NE2d 959, 942 NYS2d 457]
    The People of the State of New York, Appellant, v Jason Mack, Respondent.
    Argued February 16, 2012;
    decided March 22, 2012

      APPEARANCES OF COUNSEL

      Cyrus R. Vance, Jr., District Attorney, New York City (Vincent W. Rivellese and Hilary Hassler of counsel), for appellant.

      Dratel & Mysliwiec, P.C., New York City (Alice L. Fontier of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

During the morning rush hour on March 22, 2002, a teenage girl on her way to school got on a packed subway train in Manhattan. She stood just inside the train’s door as a tall and “very heavy” man “pushed himself in so [that] he was behind” her. Once the doors closed and the train started to move, the girl felt some “weird movements” on her lower back, which she attributed to the swaying of the train and the press of passengers. When she turned in the man’s direction, though, the touching sensation stopped; it resumed when she turned back around. She tried to “move more to [her] right” to avoid this man, but she was hemmed in by the crush of commuters. The man left the train one station after he got on. When the girl eventually got off the train, she noticed semen on her jeans and coat. Upon her arrival at school, she reported the incident to school officials, who called the police.

Although the police developed a DNA profile from the semen on the girl’s clothing right away, a suspect was not immediately identified. Then in 2007, defendant Jason Mack’s DNA was added to the State’s DNA data bank. An employee of the Office of the Chief Medical Examiner of the City of New York matched the DNA recovered from the girl’s clothing to defendant’s genetic profile. Defendant was subsequently charged by the grand jury with one count of first-degree sexual abuse (a class D felony) for the acts committed against the girl, as well as a count of third-degree sexual abuse (a class B misdemeanor) for an incident in 2006 involving another victim.

Defendant asked Supreme Court to inspect the grand jury minutes and to dismiss or reduce the first-degree count, arguing that the evidence did not establish the use of force. As relevant here, a person is guilty of first-degree sexual abuse “when he or she subjects another person to sexual contact . . . [b]y forcible compulsion” (Penal Law § 130.65 [1]); and forcible compulsion “means to compel by . . . use of physical force” (Penal Law § 130.00 [8] [a]). By contrast, “[a] person is guilty of [third-degree sexual abuse] when he or she subjects another person to sexual contact without the latter’s consent,” with an exception not at issue in this case (Penal Law § 130.55).

By decision and order dated September 22, 2008, Supreme Court concluded that “the mere close presence of many other passengers in the train [was] not sufficient to establish the requisite use of forcible compulsion.” The judge therefore reduced the count of first-degree sexual abuse in the indictment to third-degree sexual abuse. After the People re-presented the case, defendant was again indicted for first-degree sexual abuse for the encounter on March 22, 2002. He once more asked Supreme Court to inspect the grand jury minutes and to dismiss or reduce the new charge of first-degree sexual abuse on the ground of insufficient evidence of forcible compulsion. By decision and order dated January 29, 2009, the judge found that “the evidence showed that defendant sexually touched the complainant[,] but failed to establish the requisite use of forcible compulsion.” Accordingly, Supreme Court dismissed the one-count indictment, observing that the People could still prosecute defendant for this incident under the reduced charge in the original indictment.

Upon the People’s appeal, the Appellate Division affirmed, with two Justices dissenting (76 AD3d 877 [1st Dept 2010]). The court remarked that “[w]hile the conduct described in the grand jury presentation was reprehensible,” the evidence established only “the use of stealth to commit the crime,” not “the use of physical force” (id. at 879). The dissenters considered the proof sufficient to make out a prima facie case, analogizing the facts to robberies where defendants and their accomplices act together to create a “human wall” to intimidate or block a victim. A Justice of the Appellate Division granted the People leave to appeal, and we now affirm.

Here, there was no coordinated action by defendant and other passengers to hedge in the victim. Rather, the crowded conditions in the subway car merely masked and facilitated the unwanted sexual contact alleged. The sexual contact itself is the only physical force that defendant may be said to have deployed against his victim. This is not enough to establish that the sexual contact was “compelled] by . . . use of physical force.”

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

Order affirmed in a memorandum.


text:
    [967 NE2d 1159, 944 NYS2d 714]
    The People of the State of New York, Respondent, v Padraic Keating, Appellant.
    Argued February 9, 2012;
    decided March 22, 2012

      APPEARANCES OF COUNSEL

      Lauren G. Klein, Nantucket, Massachusetts, for appellant.

      Daniel M. Donovan, Jr., District Attorney, Staten Island (Anne Grady and Morrie I. Kleinbart of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant appeals, pursuant to permission granted by a Judge of this Court, from an Appellate Division order denying his application for coram nobis relief. This application seeks relief based solely on defendant’s claim that he was denied effective assistance of appellate counsel.

Defendant, who struck and killed a young mother while driving drunk, was convicted of murder in the second degree, manslaughter in the second degree, vehicular manslaughter in the first degree, vehicular manslaughter in the second degree, two counts of operating a motor vehicle while intoxicated, and two counts of leaving the scene of an accident. At his jury trial, the court permitted the admission of a videotape of defendant consenting to a blood test. During the videotape, in response to being asked whether he would consent to a blood test, defendant responded “Yes ... I will not release the police department or the doctors from responsibility of the needle breaking off in my arm, et cetera et cetera, but I will take the test.” Defense counsel asked that the tape be stopped after defendant’s consent, arguing that the remainder was not relevant and would be prejudicial. The court ruled that it was probative “of what his mind set was before the accident” and thus admissible.

We reject defendant’s contention that he was deprived of effective assistance of counsel when his appellate counsel failed to raise, on direct appeal, the issue of the trial court’s admission of the videotape, an arguably prejudicial piece of evidence (People v Stultz, 2 NY3d 277 [2004]). Although there are “cases in which a single failing in an otherwise competent performance is so ‘egregious and prejudicial’ as to deprive a defendant of his constitutional right[,] . . . [s]uch cases are rare” (People v Turner, 5 NY3d 476, 480 [2005]). Indeed, these cases have involved issues that are “clear-cut” and “dispositive” (id. at 481). Here, the issue of the admission of defendant’s videotaped consent to a blood test is a matter of discretion for the trial court. Moreover, appellate counsel’s error, if it was one, was not egregious and is unlikely to have been prejudicial. As defendant points out, an argument might have been made, at the time defendant’s brief on direct appeal was submitted in 2000, that the admission of the videotape was error because, under then-accepted law, evidence as to defendant’s remorse or the lack of it may have been irrelevant to the presence or absence of “circumstances evincing a depraved indifference to human life” (Penal Law § 125.25 [2]; see People v Roe, 74 NY2d 20, 27 [1989] [evidence of defendant’s mental state “beside the point”]; People v De George, 73 NY2d 614, 621 [1989] [evidence of defendant’s post-event emotional condition “has little relevance”]). But the argument was by no means “clear-cut” (see People v Gomez, 65 NY2d 9, 12 [1985] [a “callous” remark held to be “evidence of depraved indifference”]). Indeed, we do not think the argument would have prevailed. It certainly cannot be said that its omission from defendant’s appellate brief was inconsistent with the conduct of “a reasonably competent appellate attorney” (People v Borrell, 12 NY3d 365, 368 [2009]). The parties have cited no case in which a similar argument—that evidence of defendant’s emotional state was improperly admitted to show depraved indifference—was made, successfully or unsuccessfully, on appeal. Thus, the Appellate Division correctly denied defendant’s motion for coram nobis relief.

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

Order affirmed in a memorandum.

       The issue raised in this application for a writ of error coram nobis had not been raised in prior applications. Defendant filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of New York in 2003. Most recently in April 2010, the proceeding was stayed to permit defendant to exhaust this claim in state court.


text:
    In the Matter of Raymond Alvarez, Appellant, v New York State Division of Parole, Chairman, Respondent.
    Submitted November 28, 2011;
    decided March 22, 2012
    Reported below, 85 AD3d 1468.
   Motion to vacate this Court’s October 24, 2011 dismissal order denied (see 17 NY3d 901 [2011]).


text:
    Juliette DeJoie Cadichon et al., Appellants, v Thomas Facelle, M.D., et al., Respondents.
    Submitted January 17, 2012;
    decided March 22, 2012
    Reported below, 71 AD3d 520.
   Motions for reargument denied with $100 costs and necessary reproduction disbursements [see 18 NY3d 230 (2011)].


text:
    Chazon, LLC, Respondent, v Margaret Maugenest, Appellant, et al., Defendants.
    Submitted March 19, 2012;
    decided March 22, 2012
    Reported below, 81 AD3d 769.
   Motion by Lower Manhattan Loft Tenants for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 19 copies filed within seven days.


text:
    In the Matter of Chinese Staff and Workers’ Association et al., Appellants, v Amanda M. Burden, as Director of the New York City Department of City Planning, et al., Respondents.
    Submitted March 19, 2012;
    decided March 22, 2012
    Reported below, 88 AD3d 425.
   Motion by Natural Resources Defense Council et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Paul Eldridge, Respondent, v Carmel Central School District Board of Education et al., Appellants.
    Submitted January 17, 2012;
    decided March 22, 2012
    Reported below, 82 AD3d 1147.
   Motion for reargument of motion for leave to appeal denied [see 18 NY3d 853 (2011)].