text:
    The People of the State of New York, Respondent, v Unique Divine, Appellant.
    Submitted December 19, 2005;
    decided January 10, 2006
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 45 West 45th Street, 7th Floor, New York, NY 10036 assigned as counsel to the appellant on the appeal herein.

Judge Read taking no part.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York, Respondent, v Winston Nicholson, Appellant.
    Submitted December 19, 2005;
    decided January 10, 2006
   Motion by Honorable Richard A. Brown, Queens County District Attorney, for leave to file a brief amicus curiae on the appeal herein granted. Two copies of the brief may be served and 24 copies filed within seven days.

Judge Read taking no part.


text:
    The People of the State of New York, Appellant, v Stephen M. Pacer, Respondent.
    Submitted December 19, 2005;
    decided January 10, 2006
   Motion by New York State Association of Criminal Defense Lawyers et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.

Judge Read taking no part.


text:
    The People of the State of New York, Respondent, v Jamal Petty, Appellant.
    Submitted December 19, 2005;
    decided January 10, 2006
   Motion for assignment of counsel granted and Steven Banks, Esq., Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.

Judge Read taking no part.


text:
    In the Matter of Poughkeepsie Professional Firefighters’ Association, Local 596, IAFF, AFL-CIO-CLC, et al., Appellants, v New York State Public Employment Relations Board et al., Respondents.
    Submitted January 3, 2006;
    decided January 10, 2006
   Motion by New York State Conference of Mayors and Municipal Officials for leave to file a brief amicus curiae on the appeal herein granted. Two copies of the brief may be served and 24 copies filed within seven days.

Judge Read taking no part.


text:
    In the Matter of Poughkeepsie Professional Firefighters’ Association, Local 596, IAFF, AFL-CIO-CLC, et al., Appellants, v New York State Public Employment Relations Board et al., Respondents.
    Submitted December 27, 2005;
    decided January 10, 2006
   Motion by New York State Professional Firefighters Association, I.A.F.F., AFL-CIO for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.

Judge Read taking no part.


text:
    Bernard J. Sorrentino, Appellant, v Mike Maselly et al., Respondents.
    Submitted November 21, 2005;
    decided January 10, 2006
   Motion, insofar as it seeks leave to appeal from the Appellate Division order dismissing the appeal to that Court from the order of Supreme Court dismissing the complaint, dismissed upon the ground that appellant has failed to demonstrate timeliness as required by section 500.22 (b) (2) of the Rules of Practice of the Court of Appeals (22 NYCRR 500.22 [b] [2]); motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument, dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.

Judge Read taking no part.


text:
    David A. Sparks, Respondent, v Essex Homes of WNY, Inc., et al., Defendants. Essex Homes of WNY, Inc., Third-Party Plaintiff-Respondent, v Aluminum Gutters, Doing Business as Niagara Gutters, Third-Party Defendant-Appellant.
    Submitted November 28, 2005;
    decided January 10, 2006
   Motion to expand the record on appeal denied. Motion, insofar as it seeks leave to appeal from the Appellate Division order denying the motion to enlarge the record on appeal in that Court, 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.

Judge Read taking no part.


text:
    Tymeik Williams, Appellant, v Nassau County Medical Center et al., Respondents.
    Submitted January 3, 2006;
    decided January 10, 2006
   Motion by New York City Health and Hospitals Corporation for leave to file a brief amicus curiae on the appeal herein granted. Two copies of the brief may be served and 24 copies filed within seven days.

Judge Read taking no part.


text:
    In the Matter of Kenneth Cameron, Appellant, v John Cataldo et al., Respondents.
    Submitted November 21, 2005;
    decided January 12, 2006
   Motion, insofar as it seeks leave to appeal from the Appellate Division judgment dismissing the petition, dismissed as untimely (see CPLR 5513 [b]); motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Darnell H., a Child Alleged to be Abused and Neglected. Erie County Department of Social Services, Respondent; Rochelle C., Appellant.
    Submitted November 28, 2005;
    decided January 12, 2006
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]; see Eaton v State of New York, 76 NY2d 824 [1990]).


text:
    William Mitchell, Appellant, v State of New York, Respondent.
    Submitted November 7, 2005;
    decided January 12, 2006
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for poor person relief dismissed as academic.


text:
    William Mitchell, Appellant, v State of New York, Respondent.
    Submitted November 14, 2005;
    decided January 12, 2006
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Town of Orangetown et al., Respondents, v Orangetown Policemen’s Benevolent Association et al., Appellants.
    Submitted January 9, 2006;
    decided January 12, 2006
   Motion by New York State Conference of Mayors and Municipal Officials for leave to file a brief amicus curiae on the appeal herein granted. Two copies of the brief may be served and 24 copies filed within seven days.


text:
    In the Matter of Patrolmen’s Benevolent Association of the City of New York, Inc., Appellant, v New York State Public Employment Relations Board et al., Respondents.
    Submitted January 9, 2006;
    decided January 12, 2006
   Motion by New York State Conference of Mayors and Municipal Officials for leave to file a brief amicus curiae on the appeal herein granted. Two copies of the brief may be served and 24 copies filed within seven days.


text:
    In the Matter of Patrolmen’s Benevolent Association of the City of New York, Inc., Appellant, v New York State Public Employment Relations Board et al., Respondents.
    Submitted January 9, 2006;
    decided January 12, 2006
   Motion by Police Benevolent Association of the New York State Troopers Inc. et al. for leave to file a brief amici curiae on the appeal herein granted. Two copies of the brief may be served and 24 copies filed within seven days.


text:
    The People of the State of New York, Respondent, v Michael Nelson, Appellant.
    Submitted January 9, 2006;
    decided January 12, 2006
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Corey Smith, Appellant.
    Submitted January 9, 2006;
    decided January 12, 2006
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York ex rel. Ramon Alvarez, Appellant, v New York State Division of Parole et al., Respondents.
    Submitted September 26, 2005;
    decided January 12, 2006
   On the Court’s own motion, appeal transferred, without costs, 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 [bj [2]). Motion for poor person relief dismissed as academic.


text:
    In the Matter of Poughkeepsie Professional Firefighters’ Association, Local 596, IAFF, AFL-CIO-CLC, et al., Appellants, v New York State Public Employment Relations Board et al., Respondents.
    Submitted January 9, 2006;
    decided January 12, 2006
   Motion by Hartsdale Fire District et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    Riccardo-Jurgen Spadola, Appellant, v 260/261 Madison Equities Corp. et al., Respondents. (And Another Action.) (And a Third-Party Action.) Corporate Floors, Inc., Second Third-Party PlaintiffRespondent, v Accu Serv Floor Covering Management, Second Third-Party Defendant-Respondent-Appellant. (And Another Third-Party Action.)
    Submitted October 31, 2005;
    decided January 12, 2006
   Motion for leave to appeal by Riccardo-Jurgen Spadola denied. Cross motion for leave to appeal by Accu Serv Floor Covering Management dismissed upon the ground that as to that party the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Susan Bell, Also Known as Susan Smyth Bell, Individually and as Executor of Robert A. Bell, Also Known as Robert Bell, Deceased, Respondent, v New York City Transit Authority et al., Appellants.
    Submitted November 28, 2005;
    decided January 17, 2006
   Motion for leave to appeal dismissed upon the ground that appellants, having stipulated to an increase in damages at Supreme Court, are not parties aggrieved (CPLR 5511; see Plotkin v New York City Health & Hosps. Corp., 88 NY2d 917 [1996]).


text:
    Beth Israel Medical Center et al., Appellants, v Department of Health of the State of New York et al., Respondents, and Excellus Health Plan, Inc., Doing Business as Blue Cross and Blue Shield of Central New York, et al., Intervenors-Respondents.
    Submitted December 5, 2005;
    decided January 17, 2006
   Motion by Healthcare Association of New York State for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    In the Matter of Michael L. Goldman (Admitted as Michael Larry Goldman), a Suspended Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted January 17, 2006;
    decided January 17, 2006
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601).


text:
    The People of the State of New York, Appellant-Respondent, v Baumann & Sons Buses, Inc., Defendant-Respondent.
    Submitted December 27, 2005;
    decided January 17, 2006
   Motion to dismiss appeal denied.


text:
    In the Matter of Professional Staff Congress-City University of New York, Respondent, v New York State Public Employment Relations Board et al., Appellants.
    Submitted December 5, 2005;
    decided January 17, 2006
   Motion by the City 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.


text:
    In the Matter of Elizabeth Brilliant, Appellant, v David Gamache et al., Respondents, and William Beale, Appellant.
    Submitted January 31, 2006;
    decided February 7, 2006
   Motion for leave to appeal denied. Motion for a stay, etc., dismissed as academic.


author: Memorandum.

text:
    [ 844 NE2d 748, 811 NYS2d 294]
    Sylvia Mendel et al., Plaintiffs, and Birjees Barakat et al., Appellants, v Henry Phipps Plaza West, Inc., et al., Respondents, et al., Defendants.
    Decided February 9, 2006

      APPEARANCES OF COUNSEL

      Thomas C. Monaghan, Broad Channel, for appellants.

      Kramer Levin Naftalis & Frankel LLP, New York City (Michael J. Dell and Jeffrey L. Braun of counsel), for respondents.

      Council of the City of New York, New York City (Jeffrey Haber-man and Jay Damashek of counsel), amicus curiae.
   OPINION OF THE COURT

Memorandum.

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

In 1964, the City of New York adopted an Urban Renewal Plan for an area known as Bellevue South, from East 23rd to East 30th Streets in Manhattan, between First and Second Avenues. The plan, promulgated under title I of the Housing Act of 1949, provided for acquisition through condemnation of most of the land within the project area, and redevelopment for residential, institutional, public and semipublic use. The plan, as amended, called for “housing in the project area [which] shall be developed for occupancy by families of low and moderate income.” Other permitted uses were commercial space, a public park, community facilities, professional schools, a health laboratory and institutional parking. Under the redevelopers’ obligations provision, the plan required that “the redevelopers shall devote the land solely to the uses specified in this Urban Renewal Plan.” The requirements of the plan were to “remain in effect for a period of forty (40) years beginning on the date of approval of this Urban Renewal Plan by the Board of Estimate.” The Board of Estimate approved the Urban Renewal Plan on September 10, 1964.

In 1973, pursuant to a separate land disposition agreement (LDA) entered into by the City and defendant, limited-profit housing company Henry Phipps Plaza West (HPPW), and approved by the Board of Estimate, the City conveyed to HPPW a parcel of land within the Bellevue South boundaries for the purpose of constructing a residential apartment complex. The complex was to consist of eight buildings and 890-plus residential units. Under section 504 (a) of the LDA, HPPW agreed, in a covenant running with the land, to “devote the Housing Site ... to the uses specified in the Urban Renewal Plan.” The covenant was “to run for a period of forty (40) years from the date of approval by The City of New York, of the Urban Renewal Plan . . . and [was to] expire on September 10, 2004.”

Construction of the complex, which was completed in 1976, was financed through the Mitchell-Lama program (Private Housing Finance Law art II). As a Mitchell-Lama participant, HPPW received a state-assisted mortgage loan, a local real estate tax abatement and federal financial subsidies. In return, HPPW was subject to limitations on profits and regulation by the Division of Housing and Community Renewal (DHCR)— including regulations hmiting tenants to persons whose incomes did not exceed specified ceilings, and limiting the rents that could be charged to tenants (see e.g. Matter of KSLM-Columbus Apts., Inc. v New York State Div. of Hous. & Community Renewal, 5 NY3d 303, 308 [2005]).

The Mitchell-Lama law states that a limited-profit housing company—like HPPW—that is aided by a state loan made after May 1, 1959 may “voluntarily be dissolved, without the consent of [the State DHCR Commissioner] not less than twenty years after the occupancy date upon the payment in full of the remaining balance of principal and interest due and unpaid upon the mortgage or mortgages and of any and all expenses incurred in effecting such voluntary dissolution” (Private Housing Finance Law § 35 [2]). Pursuant to a final no-objection letter issued by DHCR, the complex withdrew from the Mitchell-Lama program on July 29, 2003 (see by contrast Matter of Columbus Park Corp. v Department of Hous. Preserv. & Deo. of City of N.Y, 80 NY2d 19 [1992] [DHCR opposed withdrawal]). DHCR concluded that the beneficial owner of HPPW, defendant Bellevue South Associates, had complied with DHCR’s as-of-right withdrawal regulations (9 NYCRR part 1750) and was entitled to dissolve HPPW and withdraw the complex from the Mitchell-Lama program.

Plaintiffs, a small group of tenants, commenced this action on April 15, 2003, seeking to enforce purported third-party beneficiary rights under the LDA. Specifically, plaintiffs maintained that the LDA required HPPW to remain in the Mitchell-Lama program until May 20, 2011 (40 years after May 20, 1971, the date of the third amended Urban Renewal Plan) or at least until September 10, 2004 (the expiration date of the covenant contained in section 504 [a] of the LDA). Plaintiffs also sought reformation of section 504 (a) of the LDA, to change the termination date of the covenant from September 10, 2004 to May 20, 2011, and further alleged that the LDA required HPPW to maintain the complex as housing for low- and moderate-income families. Plaintiffs’ claims, as amended, were dismissed by Supreme Court on the ground that plaintiffs lacked standing, and the Appellate Division affirmed, as do we.

Parties asserting third-party beneficiary rights under a contract must establish

“(1) the existence of a valid and binding contract between other parties, (2) that the contract was intended for [their] benefit and (3) that the benefit to [them] is sufficiently immediate, rather than incidental, to indicate the assumption by the contracting parties of a duty to compensate [them] if the benefit is lost” (Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 336 [1983]).

As both Supreme Court and the Appellate Division correctly determined, plaintiffs failed to establish that the LDA was intended for their benefit. Indeed, section 505 of the LDA explicitly negates any intent to permit its enforcement by third parties such as plaintiffs. We therefore conclude that plaintiffs lack standing to bring this action.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo and R.S. Smith concur; Judge Read taking no part.

Order affirmed, without costs, in a memorandum.

       A June 6, 2003 affidavit by Bellwest Management Corporation (the managing general partner of Bellevue South Associates) senior vice-president and general counsel Robert Pincus stated that of the 892 rental apartments, approximately 820 (92%) would be eligible, following withdrawal from Mitchell-Lama, to receive a subsidized rent under various plans. Six hundred sixty-four units would be eligible for section 8 enhanced vouchers (42 USC § 1437f [t]) administered by the New York City Department of Housing Preservation and Development on behalf of the United States Department of Housing and Urban Development. An additional 182 units would be eligible for a rental discount. On January 31, 2004, a settlement agreement was reached by the Tenants’ Association and defendants. That agreement, providing for various lease options (including the section 8 enhanced voucher plan) was binding on those tenants in good standing who signed a tenant acceptance form.


text:
    [ 844 NE2d 746, 811 NYS2d 292]
    The People of the State of New York, Respondent, v Joan Bongarzone-Suarrcy, Appellant.
    Decided February 9, 2006
    APPEARANCES OF COUNSEL

      Appellate Advocates, New York City (Steven R. Bernhard and Lynn W.L. Fahey of counsel), for appellant.

      Charles J. Hynes, District Attorney, Brooklyn (Leonard Job-love and Linda Breen of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

In 1998, defendant was questioned at the Highland and Kingston State Police barracks in connection with the Brooklyn murder of her husband eight years earlier. Suspicion had fallen on defendant after the suicide of her former lover. In the note he left behind, he explained that he had been the victim of defendant’s extortion; she had threatened to harm him if he did not continue to pay her. He feared that defendant might well follow through on this threat, since defendant had previously warned him that she had paid to have her husband killed in 1990. Questioned about the contents of the note, defendant was given a polygraph examination and stated that, while she had indeed told her former lover about murdering her husband, she had done so only to scare him, and that the statement had not in fact been true. Defendant passed the polygraph, and no charges were brought against her.

In 2001, defendant went to the Highland State Police barracks and volunteered to the trooper on duty that in 1990 she had paid her brother $20,000 to murder her husband, which he did. Tried for the homicide, defendant now claims that the admission of incriminating statements she made in 2001 violated her right to counsel. We disagree, and affirm her conviction.

At the suppression hearing, it was established that during the 1998 polygraph, an attorney had called the Kingston barracks and spoken to a police investigator, who in turn notified a Brooklyn detective investigating the 1990 murder. The attorney, who had previously been hired by defendant to represent her brother on an unrelated matter, was contacted by defendant’s sister upon defendant’s detention. In his communication with the investigator, the attorney said that he represented defendant, and asked both to speak to her and that the examination cease. As found by the suppression court, the detective interrupted the polygraph to inform defendant of the phone call, but defendant responded that because she hadn’t done anything wrong, she did not need an attorney.

Even assuming that, by virtue of the attorney’s call in 1998, defendant’s indelible right to counsel attached, the right was not violated by her 2001 interrogation. “Where a police officer does not know and cannot be charged with knowledge that the suspect has a lawyer, the officer has no obligation to refrain from asking questions” (People v Carranza, 3 NY3d 729, 730 [2004]). Although either actual or constructive knowledge by interrogating police officers suffices to perpetuate the indelible right to counsel once attached, neither existed here.

In assessing whether the police can be charged with knowledge—that is, whether they reasonably should have known of counsel’s entry—a number of factors should be considered: the length of the passage of time; whether a record of the earlier communication exists in the files of the police agency conducting the questioning; whether the failure of such record to exist was the result of any bad faith on the part of police; whether any of the same officers were involved in the earlier and later investigations; whether any action was taken against the suspect in the aftermath of the original investigation; and whether the entering lawyer continued to have any contact with prosecuting authorities on the matter after the initial communication.

Here, none of the investigators or detectives who received or were informed of the attorney’s 1998 phone call was involved in defendant’s interrogation a full three years later. Since no charges were brought against defendant as a result of the original investigation, the attorney had no occasion for any further involvement in the matter or contact with the police after his initial phone call. Moreover, the record reflects that the Highland State Police had, in the intervening years, destroyed their closed case file concerning defendant’s alleged extortion of her former lover—which presumably would have reflected the attorney’s phone call during defendant’s polygraph examination conducted at the Kingston barracks—in the regular course of business. Nor was any record of the 1998 interview of defendant (let alone of the attorney’s phone call during that interview) contained in the case file of the Brooklyn South Homicide Squad when the file was examined in 2001. On these facts, the police who questioned defendant in 2001 neither knew, nor reasonably should have known, of the attorney’s entry. That being so, any right to counsel that might have attached in 1998 did not prevent defendant from waiving counsel and speaking to police in 2001.

Because there is support in the record for the suppression court’s undisturbed finding that defendant was not in custody prior to the administration of Miranda warnings—a mixed question of law and fact—that issue is beyond our further review.

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

Order affirmed in a memorandum.


text:
    [ 845 NE2d 457, 812 NYS2d 26]
    The People of the State of New York, Respondent, v Unique Divine, Appellant.
    Decided February 9, 2006

      APPEARANCES OF COUNSEL

      Dewey Ballantine LLP, New York City (Molly Lehr and Kathryn C. Ellsworth of counsel), and Office of the Appellate Defender (Richard M. Greenberg and Risa Gerson of counsel) for appellant.

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

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed. Because there is record support for the Appellate Division finding of attenuation, the determination presents a mixed question of law and fact beyond our further review.

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


text:
    In the Matter of M.B. Mental Hygiene Legal Service, Appellant; Staten Island Developmental Disabilities Services Office et al., Respondents.
    Submitted February 6, 2006;
    decided February 9, 2006
   Motion by NYSARC, Inc. for leave to appear amicus curiae on the appeal herein denied as untimely (see Rules of Court of Appeals [22 NYCRR] § 500.23).


text:
    Ralph Neama et al., Appellants, v Town of Babylon, Commercial Garbage District No. 2, et al., Respondents.
    Submitted December 27, 2005;
    decided February 9, 2006
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that denied appellants’ motion for class action certification, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Patrolmen’s Benevolent Association of the City of New York, Inc., Appellant, v New York State Public Employment Relations Board et al., Respondents.
    Submitted January 17, 2006;
    decided February 9, 2006
   Motion to strike addendum C to appellant’s reply brief and references thereto in the reply brief denied.

Chief Judge Kaye taking no part.


text:
    In the Matter of Patrolmen’s Benevolent Association of the City of New York, Inc., Appellant, v New York State Public Employment Relations Board et al., Respondents.
    Submitted January 17, 2006;
    decided February 9, 2006
   Motion by Sergeants Benevolent Association for leave to file a brief amicus curiae on the appeal herein granted. Two copies of the brief may be served and 24 copies filed within seven days.

Chief Judge Kaye taking no part.


text:
    The People of the State of New York, Appellant, v Stephen M. Pacer, Respondent.
    Submitted February 6, 2006;
    decided February 9, 2006
   Motion for assignment of counsel granted and John E. Tyo, care of Zimmerman & Tyo, Esqs., Six East Main Street, Shorts-ville, New York 14548 assigned as counsel to the respondent on the appeal herein.


text:
    In the Matter of Steven B., Respondent. Administration for Children’s Services of the City of New York, Respondent; Makeba S., Appellant.
    Submitted February 6, 2006;
    decided February 9, 2006
   Motion for assignment of counsel granted and Howard M. Simms, Esq., 295 Greenwich Street 222, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.


text:
    In the Matter of George Wilson, Appellant, v Robert Dennison, as Chair of the New York State Board of Parole, Respondent.
    Submitted December 19, 2005;
    decided February 9, 2006
   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:
    [ 844 NE2d 751, 811 NYS2d 297]
    The People of the State of New York, Respondent, v Trevor Burns, Appellant.
    Decided February 14, 2006

      APPEARANCES OF COUNSEL

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

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

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant took part in a shootout in which he was wounded and the victim killed. Before implicating himself and two associates in the killing, he gave several different accounts of what had happened, including the claim that both he and the victim had been shot by a gang of Hispanic men.

At trial, the People disclosed a signed statement given to police by a declarant whose last-known address the People supplied. Declarant placed five armed Hispanic men a few New York City blocks away from the scene of the shootout on the same day and at roughly the same time. He stated that one of the armed men gave him three bags of heroin and told him to leave the area because “they” had to talk about “something [they were] going to do” that night. After declarant had walked about two blocks from the site of this encounter, he heard gunshots and sirens; he also saw the five men get into two cars. The next day, declarant happened upon one of the five men, who told him that “[e]verything was taken care of last night.”

In denying defendant’s request to admit this allegedly exculpatory hearsay statement under the exception for declarations against penal interest, the trial court did not err. The only portion of the statement that arguably fell within the exception (declarant’s acknowledgment that he possessed heroin) had no relevance to the issues at trial (see People v Geoghegan, 51 NY2d 45, 49 [1980] [when determining whether to admit a statement as declaration against penal interest, “only those parts which inculpate the declarant should be admitted”]).

Finally, there was no violation of defendant’s constitutional right to present a defense. The trial court precluded defendant from offering the hearsay statement through the testimony of a police officer to whom the statement had been made (which would have compounded the hearsay problem), but afforded defendant another way to elicit the information: the trial court offered defendant a “so ordered” subpoena for declarant to testify and the opportunity to make an offer of proof (see Delaware v Van Arsdall, 475 US 673, 679 [1986], quoting Delaware v Fensterer, 474 US 15, 20 [1985] [“(T)he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish”]; cf People v Corby, 6 NY3d 231 [2005] [precluding one avenue of cross-examination did not violate the defendant’s right to cross-examine witnesses]). In any event, because the hearsay statement lacked any indicia of reliability, defendant was not entitled to introduce it (see People v Robinson, 89 NY2d 648, 650 [1997] [defendant’s constitutional right to due process requires admission of hearsay evidence when declarant has become unavailable to testify and “the hearsay testimony is material, exculpatory and has sufficient indicia of reliability” (emphasis added)]).

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

Order affirmed in a memorandum.


text:
    ADC Orange, Inc., Appellant, v Coyote Acres, Inc., Respondent.
    Submitted December 5, 2005;
    decided February 14, 2006
   Motion, insofar as it seeks leave to appeal from that part of an Appellate Division order, dated July 18, 2005, that granted Coyote Acres, Inc.’s cross motion for summary judgment dismissing the complaint and on its first counterclaim, granted; motion, insofar as it seeks leave to appeal from the remainder of that Appellate Division order and a second Appellate Division order, dated July 18, 2005, dismissed upon the ground that the Court of Appeals does not have jursidiction to entertain it (see CPLR 5602).


text:
    Evanston Insurance Company, Respondent, v Po Wing Hong Food Market, Inc., Defendant and Third-Party Plaintiff-Appellant. Sterling & Sterling, Inc., Third-Party Defendant-Respondent.
    Submitted December 5, 2005;
    decided February 14, 2006
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that denied the motion to strike Sterling & Sterling, Inc.’s brief, 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:
    Lee Long, Appellant, v State of New York, Respondent.
    Submitted December 5, 2005;
    decided February 14, 2006
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed the denial of renewal, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise granted.


text:
    The People of the State of New York, Respondent, v John Taylor, Appellant.
    Submitted January 17, 2006;
    decided February 14, 2006
   Motion to bifurcate capital appeal denied.


text:
    Pepi Schafler, Formerly Known as Pepi Summer, Appellant, v HSBC Bank USA, Formerly Known as Marine Midland Bank, N.A., et al., Respondents.
    Submitted December 19, 2005;
    decided February 14, 2006
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    In the Matter of Laura D. Blackburne, as Justice of the Supreme Court, Queens County, Petitioner. State Commission on Judicial Conduct, Respondent.
    Submitted February 14, 2006;
    decided February 16, 2006
   Motion by National Association for the Advancement of Colored People for leave to file a brief amicus curiae on the request for review herein granted and the proposed brief is accepted as filed.


text:
    In the Matter of Laura D. Blackburne, as Justice of the Supreme Court, Queens County, Petitioner. State Commission on Judicial Conduct, Respondent.
    Submitted February 14, 2006;
    decided February 16, 2006
   Motion by Queens County Bar Association et al. for leave to file a brief amici curiae on the request for review herein granted. Two copies of the brief may be served and 24 copies filed within seven days.


text:
    In the Matter of Zoraida Melendez, Respondent, v Brian J. Wing, as Commissioner of the State of New York Office of Temporary and Disability Assistance, Appellant, et al., Respondents.
    Submitted November 28, 2005;
    decided February 16, 2006
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and is not an order of the type provided for in CPLR 5602 (a) (2).


text:
    Maria Morejon, Appellant, v Rais Construction Company et al., Respondents, et al., Defendants.
    Submitted February 14, 2006;
    decided February 16, 2006
   Motion by Defense Association of New York, Inc. for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    The People of the State of New York, Respondent, v Luis Burgos-Santos, Appellant.
    Submitted February 14, 2006;
    decided February 16, 2006
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no civil appeal lies from the order of the Appellate Division entered in this criminal proceeding (see NY Const, art VI, § 3 [b]; CPLR 5601; CPL 450.90).


text:
    The People of the State of New York, Respondent, v Leonard Conforti, Also Known as Martin Cohen, Appellant.
    Submitted February 14, 2006;
    decided February 16, 2006
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no civil appeal lies from an order of the Appellate Division entered in a criminal action or proceeding (see NY Const, art VI, § 3 [b]; CPLR 5601; CPL 450.90).


text:
    The People of the State of New York, Respondent, v Joseph Swinton, Appellant.
    Submitted February 14, 2006;
    decided February 16, 2006
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Silva Swinton, Appellant.
    Submitted February 14, 2006;
    decided February 16, 2006
   Motion for assignment of counsel granted and Kevin Costello, Esq., 43-31 194th Street, Flushing, New York 11358 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Paul Topolski, Appellant.
    Submitted February 6, 2006;
    decided February 16, 2006
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no civil appeal lies from an order or judgment entered in a criminal action (see NY Const, art VI, § 3 [b]; CPLR 5601; CPL 450.90).


text:
    The People of the State of New York ex rel. Ellis Eiland, Appellant, v Thomas Poole, as Superintendent of Five Points Correctional Facility, Respondent.
    Submitted February 6, 2006;
    decided February 16, 2006
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies to the Court of Appeals from the order of the individual Justice of the Appellate Division (see NY Const, art VI, § 3 [b]; CPLR 5601).


text:
    The People of the State of New York ex rel. Ellis Eiland, Appellant, v Thomas Poole, as Superintendent of Five Points Correctional Facility, Respondent.
    Submitted February 6, 2006;
    decided February 16, 2006
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal lies to the Court of Appeals from the order of the individual Justice of the Appellate Division (see NY Const, art VI, § 3 [b]; CPLR 5601).


text:
    In the Matter of Mac Truong, a Disbarred Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted February 14, 2006;
    decided February 16, 2006
   Appeal, insofar as taken from the Appellate Division order of disbarment, dismissed, without costs, by the Court of Appeals, sua sponte, as untimely (see CPLR 5513 [a]); appeal, insofar as taken from the Appellate Division order denying the motion to vacate, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution.


text:
    Lois Voyticky et al., Appellants, v Jim J. Duffy et al., Respondents.
    Submitted December 19, 2005;
    decided February 16, 2006
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed the denial of appellants’ motion for leave to amend the complaint, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    [ 845 NE2d 1268, 812 NYS2d 438]
    Irving Malawer, Respondent, v New York City Transit Authority et al., Appellants.
    Decided February 21, 2006

      APPEARANCES OF COUNSEL

      Steve S. Efron, New York City (Renee L. Cyr of counsel), for appellants.

      John J. Appell, New York City, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative. Defendants owed a duty to plaintiff to stop at a place from which plaintiff could safely disembark and leave the area (see Miller v Fernan, 73 NY2d 844, 846 [1988]). A triable issue of fact exists whether defendants breached that duty.

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

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


text:
    In the Matter of Rodney Bellony, Appellant, v Cheryl Chambers et al., Respondents.
    Submitted February 14, 2006;
    decided February 21, 2006
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the issues presented have become moot.


text:
    In the Matter of Reggie Caswell, Appellant, v Patrick O’Flynn, as Sheriff of Monroe County Jail, Respondent.
    Submitted January 3, 2006;
    decided February 21, 2006
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no appeal lies to the Court of Appeals from the order of the individual Justice of the Appellate Division (see NY Const, art VI, § 3 [b]; CPLR 5601). Motion for leave to appeal dismissed upon the ground that it does not lie to the Court of Appeals from the order of the individual Justice of the Appellate Division (see NY Const, art VI, § 3 [b]; CPLR 5602).


text:
    Mary Doe, Appellant, v Community Health Plan et al., Respondents.
    Submitted December 27, 2005;
    decided February 21, 2006
   On the Court’s own motion, appeal, insofar as taken from that portion of the Appellate Division order that dismissed appeals from orders of Supreme Court that, respectively, denied reargument and conditionally dismissed the complaint, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; appeal otherwise dismissed upon the ground that no substantial constitutional question is directly involved. Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that dismissed appeals from orders of Supreme Court that, respectively, denied reargument and conditionally dismissed 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 Entergy Nuclear Indian Point 2, LLC, et al., Appellants, v New York State Department of Environmental Conservation et al., Respondents.
    Submitted January 3, 2006;
    decided February 21, 2006
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Supreme Court’s order denying appellants’ motion for reconsideration, 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:
    William Hurley, Respondent, v Ralph Urban, Appellant, et al., Defendants.
    Submitted February 14, 2006;
    decided February 21, 2006
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Fourth Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).


text:
    Huron Group, Inc., et al., Respondents, v George E. Pataki, as Governor of the State of New York, et al., Defendants, and Town of Cheektowaga, Appellant.
    Submitted December 27, 2005;
    decided February 21, 2006
   Motion to dismiss appeal granted and the appeal dismissed with $400 costs and $100 costs of motion upon the ground that the issues presented have become moot.


text:
    Marianne J. Kelly, Respondent, v John M. Kelly, Appellant.
    Submitted November 28, 2005;
    decided February 21, 2006
   Motion for reconsideration of this Court’s October 27, 2005 dismissal order denied [see 5 NY3d 847]. Motion, insofar as it seeks leave to appeal from the Appellate Division order that modified Supreme Court’s April 2004 order and remitted for further proceedings, dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of PCK Development Company, LLC, Appellant, v Assessor of the Town of Ulster et al., Respondents. (And Two Other Related Proceedings.)
    Submitted December 27, 2005;
    decided February 21, 2006
   Motion by the Upstate New York Chapter of the Appraisal Institute for leave to appear amicus curiae on the motion for leave to appeal herein granted and the affidavit of Susan Baldwin is accepted as filed.


text:
    The People of the State of New York, Respondent, v David Allen, Appellant.
    Submitted February 14, 2006;
    decided February 21, 2006
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no civil appeal lies from the order of the Appellate Division entered in this criminal proceeding (see NY Const, art VI, § 3 [b]; CPLR 5601; CPL 450.90).


text:
    The People of the State of New York, Respondent, v Darius Fort, Appellant.
    Submitted January 3, 2006;
    decided February 21, 2006
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no civil appeal lies from the order entered in this criminal proceeding (see NY Const, art VI, § 3 [b]; CPLR 5601; CPL 450.90).


text:
    The People of the State of New York, Respondent, v Jose Marrero, Also Known as Jose Morrero, Appellant.
    Submitted January 30, 2006;
    decided February 21, 2006
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no civil appeal lies from the order of the Appellate Division entered in this criminal proceeding (see NY Const, art VI, § 3 [b]; CPLR 5601; CPL 450.90).


text:
    Eli Raitport, Appellant, v Consolidated Edison Company of New York, Respondent.
    Submitted February 14, 2006;
    decided February 21, 2006
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Second 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:
    Samuel Schwartz, Appellant, v Chatchavan Suebsanguan, Defendant, and Gordon D. Lutchman et al., Respondents.
    Submitted December 27, 2005;
    decided February 21, 2006
   Motion, insofar as it seeks leave to appeal as against Gordon D. Dutchman, Metropolitan Jewish Geriatric Nursing Home Company, Inc., Dr. Cicora and Maimonides Medical Center, dismissed as untimely (see CPDR 5514); motion for leave to appeal otherwise denied.


text:
    Arthur G. Soldinger, Appellant, v Elfriede Soldinger, Respondent.
    Submitted January 3, 2006;
    decided February 21, 2006
   Motion for leave to appeal dismissed as untimely (see CPDR 5513 [b]).


text:
    Pamela Vega et al., Appellants, v Stimsonite Corporation et al., Respondents.
    Submitted January 17, 2006;
    decided February 21, 2006
   Motion for leave to appeal dismissed as untimely (see CPDR 5513 [b]).


text:
    In the Matter of Arthur Venne, Respondent, v Carol Sanford, as Supervisor of the Town of Nassau, et al., Respondents, and Alexander F. Clement et al., Appellants.
    Submitted February 22, 2006;
    decided February 27, 2006
   Motion for leave to appeal denied. Motion for a stay dismissed as academic. Cross motion to vacate stay granted.


text:
    In the Matter of Laura D. Blackburne, as Justice of the Supreme Court, Queens County, Petitioner. State Commission on Judicial Conduct, Respondent.
    Submitted March 6, 2006;
    decided March 23, 2006
   Motion by Association of Justices of the Supreme Court of the State of New York for leave to appear amicus curiae on the request for review herein granted only to the extent that the proposed brief is accepted as filed.


text:
    Robert Colavito, Appellant, v New York Organ Donor Network, Inc., et al., Respondents.
    Submitted March 17, 2006;
    decided March 23, 2006
   Certification of questions by the United States Court of Appeals for the Second Circuit, pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), accepted and the issues presented are to be considered after briefing and argument.

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


text:
    Daniel Hernandez et al., Appellants, v Victor L. Robles, Respondent.
    Submitted February 27, 2006;
    decided March 23, 2006
   Motion by Eliot Spitzer, Attorney General of the State of New York, for an order pursuant to Executive Law § 71, permitting movant to file a brief and to participate in oral argument of the appeal, granted in each respect.

Judge Rosenblatt taking no part.


text:
    Amber-Ann Louise Kardas et al., Plaintiffs, and Ashley Thibault, Appellant, v Union Carbide Corporation et al., Respondents, et al., Defendants.
    Submitted December 5, 2005;
    decided March 23, 2006
   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.

Judge Rosenblatt taking no part.


text:
    Arnold Joseph Mars, Respondent-Appellant, v Andrea R. Mars, Respondent. Harold A. Mayerson, Esq., Nonparty Appellant-Respondent.
    Submitted January 17, 2006;
    decided March 23, 2006
   Motion and cross 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.

Judge R.S. Smith taking no part.


text:
    The People of the State of New York, Respondent, v Patricio Bautista, Appellant.
    Submitted March 20, 2006;
    decided March 23, 2006
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Jose Cosme Pizarro, Appellant.
    Submitted March 20, 2006;
    decided March 23, 2006
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Carlos Ramos, Appellant.
    Submitted March 20, 2006;
    decided March 23, 2006
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Appellant, v Mednan Redzeposki, Respondent.
    Submitted March 20, 2006;
    decided March 23, 2006
   Motion for assignment of counsel granted and Steven Banks, Esq., Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the respondent on the appeal herein.


text:
    The People of the State of New York, Respondent, v Ubaldo Romero, Appellant.
    Submitted March 6, 2006;
    decided March 23, 2006
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Thomas Utsey, Appellant.
    Submitted February 27, 2006;
    decided March 23, 2006
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place Suite 1601, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Charlie Vega, Appellant.
    Submitted March 20, 2006;
    decided March 23, 2006
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    In the Matter of Thomas Riley, Appellant, v Glenn S. Goord, as Commissioner of Correctional Services, Respondent.
    Submitted December 19, 2005;
    decided March 23, 2006
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for poor person relief, etc., dismissed as academic.


text:
    In the Matter of Steven B., Respondent. Administration for Children’s Services of the City of New York, Respondent; Makeba S., Appellant.
    Submitted March 20, 2006;
    decided March 23, 2006
   Motion for assignment of counsel granted and Louise Belulovich, Esq., 411 East .57th Street, 14C, New York, NY 10022 assigned as counsel to respondent Steven B. on the appeal herein.


text:
    In the Matter of Robert Ward et al., Appellants, v Eliot Spitzer, Respondent.
    Submitted January 9, 2006;
    decided March 23, 2006
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Anonymous, an Infant. John William Z. et al., Respondents; Frederick C., Appellant.
    Submitted January 23, 2006;
    decided March 28, 2006
   Motion for leave to appeal dismissed for failure to demonstrate timeliness as required by section 500.22 (b) (2) of the Rules of Practice of the Court of Appeals (22 NYCRR 500.22 [b] [2]).


text:
    In the Matter of Arnaldo R., a Person Alleged to be a Juvenile Delinquent, Respondent. Presentment Agency, Appellant.
    Submitted March 6, 2006;
    decided March 28, 2006
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the two-Justice dissent at the Appellate Division is not on a question of law (CPLR 5601 [a]).


text:
    Boslow Family Limited Partnership, Appellant, v Glickenhaus & Co., Respondent.
    Submitted January 9, 2006;
    decided March 28, 2006
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed the denial of appellant’s motion to renew and reargue, dismissed upon the ground that such part of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise granted.


text:
    In the Matter of Felix M. Robert Ernest D., Respondent; Felix Gilberto M., Appellant.
    Submitted January 23, 2006;
    decided March 28, 2006
   Motion for leave to appeal dismissed for failure to demonstrate timeliness as required by section 500.22 (b) (2) of the Rules of Practice of the Court of Appeals (22 NYCRR 500.22 [b] [2]).


text:
    Andre Greene, Appellant, v City of New York, Respondent.
    Submitted January 23, 2006;
    decided March 28, 2006
   Motion for leave to appeal dismissed upon the ground that it does not lie (see CPLR 5602). Motion for poor person relief dismissed as academic.


text:
    In the Matter of Jeffrey McG., Appellant.
    Submitted January 23, 2006;
    decided March 28, 2006
   Motion for leave to appeal dismissed for failure to demonstrate timeliness as required by section 500.22 (b) (2) of the Rules of Practice of the Court of Appeals (22 NYCRR 500.22 [b] [2]).


text:
    In the Matter of Daniel Jones, Appellant, v New York State Division of Parole, Respondent.
    Submitted January 9, 2006;
    decided March 28, 2006
   Motion for leave to appeal dismissed upon the ground that the issues presented have become moot. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Thomas Riley, Appellant, v Ronald W. Moscicki, Respondent.
    Submitted February 21, 2006;
    decided March 28, 2006
   Motion for reargument denied [see 6 NY3d 703]. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Michael Rodriguez, Appellant, v New York State Division of Parole, Respondent.
    Submitted January 9, 2006;
    decided March 28, 2006
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Midori Shimamoto, as Administratrix of the Estate of Bart Schwartz, Deceased, et al., Respondents, v S&F Warehouses, Inc., et al., Defendants, and Simon, Meyrowitz, Meyrowitz & Schlussel, Appellant. (And a Third-Party Action.)
    Submitted March 6, 2006;
    decided March 28, 2006
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the State Constitution (NY Const, art VI, § 3 [b] [3], [4]) and the CPLR (CPLR 5601 [c]; 5602 [b] [1]) do not authorize a grant of leave to defendant on a certified question in these circumstances (see Maynard v Greenberg, 82 NY2d 913 [1994]).


text:
    [ 850 NE2d 622, 817 NYS2d 575]
    The People of the State of New York, Respondent, v Matthew Smith, Appellant.
    Decided March 30, 2006

      APPEARANCES OF COUNSEL

      Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria LLP, Buffalo (Paul J. Cambria, Jr., and Roger W. Wilcox, Jr., of counsel), for appellant.

      David W. Foley, District Attorney, Mayville (Tracey A. Brunecz of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

After a bench trial, defendant was convicted of rape in the first degree and burglary in the second degree. Initially, defendant claims that his waiver of a jury trial did not comport with constitutional and statutory requisites (see NY Const, art I, § 2; CPL 320.10 [2]). The record indicates that defendant executed a written waiver of a jury trial in open court which was approved by the trial judge. The circumstances surrounding the waiver, moreover, support the conclusion that it was knowing, intelligent and voluntary.

Next, defendant asserts that his waiver was ineffective since the trial judge did not inquire as to his understanding regarding the waiver of a jury trial. The record reflects, however, that in defendant’s presence the trial court inquired of defendant’s counsel concerning his client’s understanding of the rights waived. Although an allocution by the trial judge eliciting defendant’s full understanding of the importance of the right being waived would have been better practice, no particular catechism is required to establish the validity of a jury trial waiver. The inquiry here, though minimal, was sufficient to establish that defendant understood the ramifications of such waiver (see People v Page, 88 NY2d 1 [1996]).

Finally, defendant contends that there was legally insufficient evidence from which the trier of fact could find him guilty of rape in the first degree (Penal Law § 130.35 [2]) and burglary in the second degree (Penal Law § 140.25 [2]). A “verdict is supported by sufficient evidence . . . [when] there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion . . . [which] as a matter of law satisf[ies] the proof and burden requirements for every element of the crime charged” (People v Bleakley, 69 NY2d 490, 495 [1987]). Contrary to defendant’s assertions, and viewing the evidence in the light most favorable to the People, as we must (see People v Contes, 60 NY2d 620, 621 [1983]), a rational person could conclude that the trial evidence was legally sufficient to support his conviction. The testimony of the victim, which was corroborated by other witnesses and by defendant himself, in conjunction with the forensic evidence, permitted the finding of defendant’s guilt of both crimes.

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

Order affirmed in a memorandum.


text:
    Joseph Clark, Appellant, v David Trois et al., Respondents.
    Submitted January 17, 2006;
    decided March 30, 2006
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed the denial of appellant’s motion to amend the complaint, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of John L. Eadie et al., Appellants, v Town Board of the Town of North Greenbush et al., Respondents.
    Submitted March 27, 2006;
    decided March 30, 2006
   Motion by the Gallogly respondents, treated as a motion to limit issues raised on appeal, denied. Motion for a stay of the Appellate Division order pending disposition of the appeal herein granted.

Judge Read taking no part.


text:
    Daniel Hernandez et al., Appellants, v Victor L. Robles, as City Clerk of the City of New York, Respondent.
    Submitted March 27, 2006;
    decided March 30, 2006
   Motion by New York State Catholic Conference for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.

Judge Rosenblatt taking no part.


text:
    Town of Mount Pleasant, Respondent, v Legion of Christ, Inc., Appellant.
    Submitted March 27, 2006;
    decided March 30, 2006
   Motion by the Becket Fund for Religious Liberty for leave to file a brief amicus curiae on the appeal herein granted. Two copies of the brief may be served and 24 copies filed within 10 days.


text:
    The People of the State of New York, Respondent, v Egbert Grant, Appellant.
    Submitted March 27, 2006;
    decided March 30, 2006
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place Suite 1601, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.


text:
    James S. Denio, as Adult Guardian of the Person and Property of Sarah J. Denio, Pursuant to Article 81 of the Mental Hygiene Law, Respondent-Appellant, v State of New York, Appellant-Respondent.
    Submitted April 3, 2006;
    decided April 4, 2006
   Motion by City of New York for leave to file a brief amicus curiae on the appeal herein granted. Two copies of the brief may be served and 24 copies filed within 10 days.


text:
    James S. Denio, as Adult Guardian of the Person and Property of Sarah J. Denio, Pursuant to Article 81 of the Mental Hygiene Law, Respondent-Appellant, v State of New York, Appellant-Respondent.
    Submitted March 27, 2006;
    decided April 4, 2006
   Motion by New York City Housing Authority for leave to file a brief amicus curiae on the appeal herein granted. Two copies of the brief may be served and 24 copies filed within 10 days.


text:
    In the Matter of Ira S., Respondent, v Lauren S., Respondent. In the Matter of the Custody of Max S. and Another, Infants. Lauren S., Respondent; New York City Administration for Children’s Services, Respondent. Law Guardian, Appellant.
    Submitted March 27, 2006;
    decided April 4, 2006
   Motion for leave to appeal dismissed upon the ground that appellant, having taken no appeal to the Appellate Division, may not appeal to the Court of Appeals from the Appellate Division order of affirmance.


text:
    Mail Boxes Etc. USA, Inc., Respondent, v Rupert Higgins et al., Appellants.
    Submitted January 17, 2006;
    decided April 4, 2006
   On the Court’s own motion, appeal, insofar as taken on behalf of H.T.A., Inc. by Rupert Higgins, dismissed, without costs, upon the ground that Rupert Higgins is not H.T.A., Inc.’s authorized legal representative (see CPLR 321 [a]); appeal, insofar as taken by Rupert Higgins on his own behalf, dismissed, without costs, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution. Motion for a stay etc. dismissed as academic.


text:
    In the Matter of Robert P. Meegan, Jr., as President of Buffalo Police Benevolent Association, et al., Appellants, v Anthony Masiello, as Mayor of the City of Buffalo, et al., Respondents.
    Submitted March 20, 2006;
    decided April 4, 2006
   Motion by the National Education Association of New York for leave to appear amicus curiae on the motion for leave to appeal herein granted and the memorandum of law is accepted as filed.


text:
    Northeast Wine Development, LLC, Doing Business as All Star Wine & Spirits, Appellant, v Service-Universal Distributors, Inc., Respondent, et al., Defendant.
    Submitted January 23, 2006;
    decided April 4, 2006
   Motion for leave to appeal, expressly limited to so much of the Appellate Division order as affirmed the dismissal of the complaint, granted.


text:
    Northeast Wine Development, LLC, Doing Business as All Star Wine & Spirits, Appellant, v Service-Universal Distributors, Inc., Respondent, et al., Defendant.
    Submitted February 14, 2006;
    decided April 4, 2006
   Motion by Empire Liquor Store Association, Inc. for leave to appear amicus curiae on the motion for leave to appeal herein granted and the memorandum of law is accepted as filed.


text:
    Sung Hwan Co., Ltd., Appellant, v Rite Aid Corporation, Respondent.
    Submitted March 6, 2006;
    decided April 4, 2006
   Motion by Rite Aid Corporation to supplement the record on appeal denied. Cross motion by Sung Hwan Co., Ltd. to strike references in Rite Aid Corporation’s brief to the “supplemental record on appeal” granted and said references are deemed stricken.


text:
    In the Matter of Mac Truong, a Disbarred Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted March 27, 2006;
    decided April 4, 2006
   Motion for reconsideration of this Court’s February 16, 2006 dismissal order denied [see 6 NY3d 799]. Motion, insofar as it seeks leave to appeal from the Appellate Division order of disbarment, dismissed as untimely (CPLR 5513 [b]); motion, insofar as it seeks leave to appeal from the Appellate Division order denying the motion to vacate, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of the Claim of Benjamin Velez, Appellant, v Modern Linens & Towels et al., Respondents. Workers’ Compensation Board, Respondent.
    Submitted March 13, 2006;
    decided April 4, 2006
   Motion for reargument denied [see 6 NY3d 708]. Motion for poor person relief dismissed as academic.


text:
    [ 849 NE2d 942, 816 NYS2d 719]
    In the Matter of City of New York et al., Respondents, v New York City Civil Service Commission, Respondent, and Michael A. Ciacciullo, Appellant. In the Matter of Michael A. Ciacciullo, Appellant, v Raymond W. Kelly, as Police Commissioner of the City of New York, et al., Respondents.
    Argued March 21, 2006;
    decided May 2, 2006

      APPEARANCES OF COUNSEL

      Worth Longworth & London, LLP, New York City (Howard B. Sterinbach of counsel), for appellant.

      Michael A. Cardozo, Corporation Counsel, New York City (Cheryl Payer, Stephen J. McGrath and Eric Eichenholtz of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

Following several examinations demonstrating a psychological condition related to job stress, in 1992 petitioner was placed on ordinary disability retirement as a New York City Housing Authority police officer. In 1998 petitioner sought reinstatement as a police officer with the New York City Police Department (NYPD) (which in 1995 had merged with the Housing Authority Police Department). During the years of his retirement, petitioner neither sought nor obtained employment of any kind. After reviewing the reports of a number of doctors concerning petitioner’s psychological condition, the New York City Employee Retirement System (NYCERS) medical board in 1999 concluded that petitioner was no longer disabled and certified him to the Department of Citywide Administrative Services (DCAS) for reinstatement.

Pursuant to its regular candidate screening process, the NYPD referred petitioner to a psychologist to determine his fitness for duty as a police officer. After examining petitioner and reviewing his medical history, the psychologist reported that he had “continued problems with stress tolerance,” that he posed “too high a risk to carry a fire arm” as a police officer, and that “because of his vulnerability to stress, which could lead to a recurrence of disabling psychiatric symptoms,” he was not qualified for the work of a police officer. By letter dated December 22, 2000 the NYPD notified petitioner that he had been found psychologically unfit for the position of police officer. Petitioner appealed that determination to the New York City Civil Service Commission.

Prior to the Civil Service Commission hearing, at the instance of the NYPD, a second psychologist examined petitioner regarding his fitness for duty. According to that psychologist, petitioner’s “underlying personality disorder has not remitted but has only been muted by [his] current unstressed lifestyle.” The second expert, like the first, reported that petitioner was unfit for a full-duty police officer position, and that if he were to return to active police duty there was a “significant risk that serious psychological symptoms [would] return.”

At the hearing before the Civil Service Commission, DCAS placed into evidence the reports of both psychologists, as well as the testimony of the second psychologist that petitioner showed continued signs of psychiatric disorder when placed under stress, and argued that petitioner was unfit for police service due to the risk of recurrence of his psychological problems. Petitioner testified on his own behalf, describing his work history and his daily activities since retirement—basically, gardening, jogging, food shopping, maintenance of his house in South Carolina and the reinstatement litigation—and relied on the reports of doctors who had examined him between 1987 and 1999 to determine whether he suffered from a mental disability.

With one dissenting member, the Civil Service Commission panel reversed the NYPD’s unfitness determination and ordered petitioner reinstated, concluding that “[t]he evidence clearly shows that [petitioner] does not have any psychological disorders.” The dissenter noted that petitioner had “presented no evidence that he would be able to handle the daily stresses of the position of Police Officer if he was restored to full-duty” and had “not submitted sufficient evidence that he is psychologically fit to perform the duties of a Police Officer.”

Petitioner then commenced this article 78 proceeding to compel his reinstatement, and DCAS filed a cross-petition to annul the Commission’s decision. Supreme Court transferred the petitions to the Appellate Division, which unanimously granted municipal petitioners’ petition and annulled the Civil Service Commission’s determination. The Appellate Division concluded that the Commission had applied the wrong standard of review; that it “is not empowered to decide the matter de novo, the only powers reserved to it being those of an appeals board to hear and decide appeals by persons aggrieved by DCAS’s determinations”; and that the Commission had erroneously failed to grant deference to the agency’s determination (20 AD3d 347, 348 [1st Dept 2005]).

Having failed to object to the authority of the Civil Service Commission to hear the matter anew—indeed, having itself presented new evidence at the hearing—DCAS cannot now complain that the Commission had no power to decide the matter de novo. As we noted in Matter of Garayua v New York City Police Dept. (68 NY2d 970, 972 [1986])—squarely on point—the agency “charted [its] own procedural course and cannot now be heard to complain because the Civil Service Commission made findings and exercised its own discretion on the basis of the facts placed before it.”

The sole question before us therefore is whether the Commission’s reinstatement determination was rational. While the Commission had evidence that petitioner was no longer psychologically disabled, there was no evidence that—given his background and lack of any employment for a decade (or more)—he was fit for the stresses of police work. DCAS adduced medical evidence of his future unfitness while petitioner offered no medical evidence to rebut that proof and support his future fitness. There was thus a failure of proof on the question of future fitness, a basis on which to disqualify petitioner (see Civil Service Law § 50 [4] [b]), and the reinstatement determination was not rational.

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

Judgment affirmed, with costs, in a memorandum.

       DCAS is the municipal agency empowered to administer the civil service laws, including those regarding the qualifications of candidates for employment (see NY City Charter § 813; see also Matter of Hughes v Doherty, 5 NY3d 100, 105 [2005]). DCAS has delegated this authority with respect to medical qualification of police officer candidates to the NYPD.


text:
    [ 850 NE2d 11, 817 NYS2d 197]
    In the Matter of Charles P. Myles, Jr.
    Decided May 2, 2006
   OPINION OF THE COURT

On the Court’s own motion, it is determined that Honorable Charles E Myles, Jr. is suspended without pay, effective immediately, from his office of Justice of the Esperance Town Court, Schoharie County, pursuant to New York Constitution, article VI, § 22 (f), (g) and Judiciary Law § 44 (8) (b), (c). Justice Myles specifically requested that if he were suspended, the suspension be without pay.

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


text:
    [ 849 NE2d 945, 816 NYS2d 722]
    Brendan B. Keavey, Appellant, v New York State Dormitory Authority, Respondent.
    Decided May 2, 2006

      APPEARANCES OF COUNSEL

      Collins & Maxwell, Buffalo (Alan D. Voos of counsel), for appellant.

      Rodgers & Coppola, LLP, Buffalo (Patricia S. Walker of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

The Appellate Division properly dismissed plaintiffs Labor Law § 240 (1) and § 241 (6) causes of action. The act of falling into a five- to six-inch gap between insulation boards, which were stacked eight-feet tall, is not a gravity-related accident encompassed by Labor Law § 240 (1) (see Toefer v Long Is. R.R., 4 NY3d 399 [2005]; Rocovich v Consolidated Edison Co., 78 NY2d 509 [1991]). Further, plaintiff failed to demonstrate the applicability of any section of the Industrial Code.

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

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


text:
    In the Matter of Richard J. Calle (Admitted as Richard John Calle), a Disbarred Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted February 21, 2006;
    decided May 2, 2006
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Patricia Curto, Appellant, v Zittel’s Dairy Farm et al., Respondents.
    Submitted March 20, 2006;
    decided May 2, 2006
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of the Estate of George J. Ferrara, Deceased. Salvation Army, Appellant; Dominick Ferrara et al., Respondents.
    Submitted April 3, 2006;
    decided May 2, 2006
   Motion by Eliot Spitzer, Attorney General of the State of New York, for an order permitting movant to file a brief and to participate in oral argument of the appeal, granted in each respect.


text:
    In the Matter of Shawn Green, Appellant, v Donald Selsky et al., Respondents.
    Submitted February 27, 2006;
    decided May 2, 2006
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Daniel Hernandez et al., Appellants, v Victor L. Robles, Respondent.
    Submitted April 10, 2006;
    decided May 2, 2006
   Motion by New York State Conservative Party for leave to file a brief amicus curiae on the appeal herein granted. Two copies of the brief may be served and 24 copies filed within seven days.

Judge Rosenblatt taking no part.


text:
    Daniel Hernandez et al., Appellants, v Victor L. Robles, Respondent.
    Submitted April 24, 2006;
    decided May 2, 2006
   Motion by City Action Coalition for leave to file a brief amicus curiae on the appeal herein granted. Two copies of the brief may be served and 24 copies filed within seven days.

Judge Rosenblatt taking no part.


text:
    Daniel Hernandez et al., Appellants, v Victor L. Robles, Respondent. Sylvia Samuels et al., Appellants, v New York State Department of Health et al., Respondents.
    Submitted April 24, 2006;
    decided May 2, 2006
   Motion by Lesbian, Gay, Bisexual and Transgender Law Association of Greater New York, Inc. for leave to file a brief amicus curiae on the appeals herein granted and the proposed brief is accepted as filed.

Judge Rosenblatt taking no part.


text:
    Daniel Hernandez et al., Appellants, v Victor L. Robles, Respondent. Sylvia Samuels et al., Appellants, v New York State Department of Health et al., Respondents.
    Submitted April 24, 2006;
    decided May 2, 2006
   Motion by New York County Lawyers’ Association et al. for leave to appear amici curiae on the appeals herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief may be served and 24 copies filed within seven days.

Judge Rosenblatt taking no part.


text:
    Daniel Hernandez et al., Appellants, v Victor L. Robles, Respondent. Sylvia Samuels et al., Appellants, v New York State Department of Health et al., Respondents.
    Submitted April 24, 2006;
    decided May 2, 2006
   Motion by Gay & Lesbian Advocates & Defenders for leave to file a brief amicus curiae on the appeals herein granted. Two copies of the brief may be served and 24 copies filed within seven days.

Judge Rosenblatt taking no part.


text:
    Daniel Hernandez et al., Appellants, v Victor L. Robles, Respondent. Sylvia Samuels et al., Appellants, v New York State Department of Health et al., Respondents.
    Submitted April 24, 2006;
    decided May 2, 2006
   Motion by Association to Benefit Children et al. for leave to appear amici curiae on the appeals herein granted only to the extent that the proposed brief is accepted as filed.

Judge Rosenblatt taking no part.


text:
    Daniel Hernandez et al., Appellants, v Victor L. Robles, Respondent. Sylvia Samuels et al., Appellants, v New York State Department of Health et al., Respondents.
    Submitted April 24, 2006;
    decided May 2, 2006
   Motion by American Psychological Association et al. for leave to appear amici curiae on the appeals herein granted only to the extent that the proposed brief is accepted as filed.

Judge Rosenblatt taking no part.


text:
    Daniel Hernandez et al., Appellants, v Victor L. Robles, Respondent. Sylvia Samuels et al., Appellants, v New York State Department of Health et al., Respondents.
    Submitted April 24, 2006;
    decided May 2, 2006
   Motion by Women’s Bar Association of the State of New York et al. for leave to appear amici curiae on the appeals herein granted only to the extent that the proposed brief is accepted as filed.

Judge Rosenblatt taking no part.


text:
    Daniel Hernandez et al., Appellants, v Victor L. Robles, Respondent. Sylvia Samuels et al., Appellants, v New York State Department of Health et al., Respondents.
    Submitted April 24, 2006;
    decided May 2, 2006
   Motion by Academy for Jewish Religion et al. for leave to file a brief amici curiae on the appeals herein granted. Two copies of the brief may be served and 24 copies filed within seven days. Judge Rosenblatt taking no part.


text:
    Daniel Hernandez et al., Appellants, v Victor L. Robles, Respondent. Sylvia Samuels et al., Appellants, v New York State Department of Health et al., Respondents.
    Submitted April 24, 2006;
    decided May 2, 2006
   Motion by Empire State Pride Agenda et al. for leave to file a brief amici curiae on the appeals herein granted and the proposed brief is accepted as filed.

Judge Rosenblatt taking no part.


text:
    Daniel Hernandez et al., Appellants, v Victor L. Robles, Respondent. Sylvia Samuels et al., Appellants, v New York State Department of Health et al., Respondents.
    Submitted April 24, 2006;
    decided May 2, 2006
   Motion by Association of the Bar of the City of New York et al. for leave to file a brief amici curiae on the appeals herein granted and the proposed brief is accepted as filed.

Judge Rosenblatt taking no part.


text:
    Daniel Hernandez et al., Appellants, v Victor L. Robles, Respondent. In the Matter of Elissa Kane et al., Appellants, v John Marsolais, as Albany City Clerk, et al., Respondents. Sylvia Samuels et al., Appellants, v New York State Department of Health et al., Respondents. Jason Seymour et al., Appellants, v Julie Holcomb, as City Clerk of the City of Ithaca, et al., Respondents.
    Submitted April 24, 2006;
    decided May 2, 2006
   Motion by Alicia Ouellette et al. for leave to file a brief amici curiae on the appeals herein granted and the proposed brief is accepted as filed.

Judge Rosenblatt taking no part.


text:
    Daniel Hernandez et al., Appellants, v Victor L. Robles, Respondent. In the Matter of Elissa Kane et al., Appellants, v John Marsolais, as Albany City Clerk, et al., Respondents. Sylvia Samuels et al., Appellants, v New York State Department of Health et al., Respondents. Jason Seymour et al., Appellants, v Julie Holcomb, as City Clerk of the City of Ithaca, et al., Respondents.
    Submitted April 24, 2006;
    decided May 2, 2006
   Motion by Parents, Families & Friends of Lesbians and Gays, Inc., et al., for leave to file a brief amici curiae on the appeals herein granted and the proposed brief is accepted as filed.

Judge Rosenblatt taking no part.


text:
    In the Matter of Robert P. Meegan, Jr., et al., Appellants, v Anthony Masiello et al., Respondents.
    Submitted April 3, 2006;
    decided May 2, 2006
   Motion by Syracuse Police Benevolent Association for leave to appear amicus curiae on the motion for leave to appeal herein dismissed as academic.


text:
    In the Matter of William Mitchell, Appellant, v James Hudson, Respondent.
    Submitted February 14, 2006;
    decided May 2, 2006
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York, Respondent, v Shawn Kennedy, Appellant.
    Submitted April 3, 2006;
    decided May 2, 2006
   Motion by New York State Association of Criminal Defense Lawyers for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief may be served and 24 copies filed within seven days.


text:
    The People of the State of New York, Respondent, v Robert Romero, Appellant.
    Submitted April 17, 2006;
    decided May 2, 2006
   Motion for assignment of counsel granted and Lawrence Fleischer, Esq., care of Gotlin and Jaffe, Esqs., 100 Lafayette Street, Suite 404, New York, NY 10013 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Ezikel Ross, Appellant.
    Submitted April 24, 2006;
    decided May 2, 2006
   Motion for assignment of counsel granted and David C. Schopp, Esq., Legal Aid Bureau of Buffalo, Inc., 237 Main Street Suite 1602, Buffalo, New York 14203 assigned as counsel to the appellant on the appeal herein.


text:
    Kim Ragland, Appellant, v State of New York, Respondent.
    Submitted March 6, 2006;
    decided May 2, 2006
   Motion for reargument of motion for leave to appeal denied [see 6 NY3d 706]. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Shondel J., Respondent, v Mark D., Appellant.
    Submitted April 27, 2006;
    decided May 2, 2006
   Motion to vacate this Court’s April 19, 2006 preclusion order granted.


text:
    [ 850 NE2d 19, 817 NYS2d 204]
    Taynisha Baez, Appellant, v Imamally Rahamatali et al., Respondents.
    Decided May 4, 2006
    APPEARANCES OF COUNSEL

      Pollack, Pollack, Isaac & De Cicco, New York City (Brian J. Isaac of counsel), and Corpina, Piergrossi, Overzat & Klar, LLP, for appellant.

      Baker, McEvoy, Morrissey & Moskovits, P.C., New York City (Holly E. Peck of counsel), for John Smith, respondent.

      Morris Duffy Alonso & Faley, New York City (Yolanda L. Ayala of counsel), for Nestor Torres, respondent.

      Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York City (Nickolas G. Spiliotis of counsel), for Imamally Rahamatali, respondent.
   OPINION OF THE COURT

Memorandum.

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

Defendants met their initial burden of establishing that plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102 (d) (see Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). In opposition, plaintiff failed to provide an objective medical basis supporting the conclusion that she sustained a serious injury (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-351 [2002]). Moreover, plaintiff failed to come forward with evidence that her current alleged need for surgery is causally related to the automobile accident (see Pommells v Perez, 4 NY3d 566, 572, 580 [2005]). Summary judgment was therefore properly granted to defendants.

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

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