text:
    [866 NE2d 1032, 834 NYS2d 704]
    The People of the State of New York, Respondent, v Jonathan Dean, Appellant.
    Decided April 3, 2007

      APPEARANCES OF COUNSEL

      Jaime C. Louridas, Schenectady, for appellant.

      Kevin C. Kortright, District Attorney, Fort Edward (Katherine G. Henley of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by directing that defendant’s sentences run concurrently, and as so modified, affirmed.

Defendant was indicted on August 10, 2004, in a seven-count indictment charging him with unlawful surveillance in the second degree, endangering the welfare of a child, four counts of possessing a sexual performance by a child, and promoting a sexual performance by a child. The charges were based both on videotapes found in defendant’s possession containing footage of his and a neighbor’s children, and on digital photographs found on defendant’s computer depicting sexual conduct involving children. As to each count, the indictment described the conduct forming the basis for the allegations, but only generally stated that each act was performed “during the month of July, 2004.” While the August 10 indictment was pending, the grand jury handed down a second indictment, charging defendant with seven additional counts of possessing a sexual performance by a child. In satisfaction of both indictments, defendant pleaded guilty to three counts of possessing a sexual performance by a child (as set forth in the August 10 indictment), and pursuant to agreement was sentenced to three terms of 1 to 3 years, to run consecutively.

Defendant now claims that the consecutive sentences were illegal, as the court did not have facts before it to support a determination that he took possession of each of the digital images at a separate time. A trial court may impose consecutive sentences when “the facts demonstrate that the defendant’s acts underlying the crimes are separate and distinct” (People v Ramirez, 89 NY2d 444, 451 [1996]; see Penal Law § 70.25). In ascertaining the existence of such facts, “where defendant has pleaded guilty to one or more counts alleged in the indictment, [the People] may rely on the allegations of those counts as well as the facts adduced at the allocution” (People v Laureano, 87 NY2d 640, 644 [1996]). As the People did not include the date and time of each of the allegedly separate acts of downloading the digital images set forth in the indictment, or include such facts in defendant’s plea allocution, the court was without authority to impose consecutive sentences.

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

Order modified in accordance with the memorandum herein and, as so modified, affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    [866 NE2d 448, 834 NYS2d 503]
    Lottie Branham, Appellant, v Loews Orpheum Cinemas, Inc., Respondent, et al., Defendants.
    Decided April 3, 2007

      APPEARANCES OF COUNSEL

      Dubow & Smith, Bronx (Michael Dubow of counsel), for appellant.

      Congdon, Flaherty, O’Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale (Kathleen D. Foley of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The Appellate Division order should be affirmed with costs and the certified question not answered upon the ground that it is unnecessary. Viewing the evidence in the light most favorable to plaintiff, as we must on defendant’s motion for summary judgment (see Fundamental Portfolio Advisors, Inc. v Tocqueville Asset Mgt., L.P., 7 NY3d 96 [2006]), defendant Loews demonstrated its entitlement to summary judgment dismissing the complaint against it. In opposition, plaintiff failed to adduce sufficient evidence that Loews had actual or constructive notice of the transient obstruction — a boy sitting in the aisle — or that the lighting in the theater was inadequate (see Piacquadio v Recine Realty Corp., 84 NY2d 967 [1994]; Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; see also Gilson v Metropolitan Opera, 5 NY3d 574 [2005]).

Chief Judge Kaye 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:
    [866 NE2d 1030, 834 NYS2d 702]
    Carol W. Zorn, Appellant, v Rita K. Gilbert et al., Respondents.
    Decided April 3, 2007
    APPEARANCES OF COUNSEL

      Robert M. Cohen, Ballston Lake, for appellant.

      Housman & Associates, P.C., New York City (Brian J. Divney of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, without costs, by reinstating the legal malpractice cause of action and remitting to Supreme Court for consideration of issues raised by defendants on the motion to dismiss but not reached by that court and, as so modified, affirmed.

Defendants moved to dismiss the complaint alleging, in part, that plaintiffs legal malpractice cause of action was barred by the statute of limitations. An action to recover damages arising from legal malpractice must be commenced within three years after accrual (see CPLR 214 [6]; 203 [a]). “The continuous representation doctrine tolls the statute of limitations . . . where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim” (McCoy v Feinman, 99 NY2d 295, 306 [2002]; see also Shumsky v Eisenstein, 96 NY2d 164, 167-168 [2001]). Plaintiffs cause of action accrued, at the latest, on December 4, 1997, when a judgment of divorce was entered in the underlying action (see McCoy, 99 NY2d at 305). Defendants’ representation of plaintiff in the underlying action ended, at the earliest, in June 1998. Inasmuch as this action was commenced in May 2001, the Appellate Division erred in holding that plaintiff’s cause of action alleging legal malpractice was time-barred (see McCoy, 99 NY2d at 305; Shumsky, 96 NY2d at 167-168). Issues regarding plaintiffs other causes of action, decided by the courts below, are not raised before us.

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

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order modified, without costs, by reinstating the legal malpractice cause of action and remitting to Supreme Court, Westchester County, for further proceedings in accordance with the memorandum herein and, as so modified, affirmed.


text:
    Gregory Boomer, Appellant, v James E. Gross, Respondent.
    Submitted March 26, 2007;
    decided April 3, 2007
   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:
    441 East 57th Street, LLC, Respondent, v 447 East 57th Street Corp., Appellant.
    Submitted February 20, 2007;
    decided April 3, 2007
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    In the Matter of John Indelicato, Appellant, v Town of Lloyd et al., Respondents.
    Submitted March 26, 2007;
    decided April 3, 2007
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Richard E. Kaplan, Appellant, v Timothy Julian, as Mayor of the City of Utica, et al., Respondents.
    Submitted March 26, 2007;
    decided April 3, 2007
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    NYCTL 1998-2 Trust et al., Respondents, v Zoila Lucinda Avila, Appellant, et al., Defendants. RSL Holdings, LLC, Nonparty Respondent.
    Submitted February 5, 2007;
    decided April 3, 2007
   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 People of the State of New York, Respondent, v Howard Harris, Appellant.
    Submitted March 26, 2007;
    decided April 3, 2007
   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:
    In the Matter of the Estate of Rose BB., Deceased. Richard BB., Respondent; Louis BB., Appellant. (And Another Related Proceeding.)
    Submitted March 26, 2007;
    decided April 3, 2007
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.

Judge Graffeo taking no part.


text:
    Mark Sherman, Respondent, v Helene Spielman Sherman, Appellant.
    Submitted March 26, 2007;
    decided April 3, 2007
   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 Charles Stewart, Appellant, v David S. Hartnett, as Cortland County District Attorney, et al., Respondents.
    Submitted March 26, 2007;
    decided April 3, 2007
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Thomas B., an Infant. Chautauqua County Department of Social Services, Appellant; Lisa B., Respondent.
    Submitted March 5, 2007;
    decided April 3, 2007
   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 pending disposition of the appeal dismissed as academic.


text:
    In the Matter of Anonymous, for Admission to Practice as an Attorney and Counselor-at-Law, Appellant.
    Submitted March 12, 2007;
    decided April 3, 2007
   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.

Chief Judge Kaye taking no part.


text:
    Bryant Villatoro et al., Respondents, v Ambassador Apartments, Inc., et al., Appellants, et al., Respondent.
    Submitted February 13, 2007;
    decided April 3, 2007
   Motion by Alfred S. Friedman Management Corp. for leave to appeal dismissed upon the ground that as to said appellant the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion by Ambassador Apartments, Inc. for leave to appeal denied.


text:
    [866 NE2d 1041, 834 NYS2d 713]
    The People of the State of New York, Respondent, v William E. Miller, Appellant.
    Argued March 27, 2007;
    decided April 26, 2007

      APPEARANCES OF COUNSEL

      Edward J. Nowak, Public Defender, Rochester {David M. Abbatoy, Jr., of counsel), for appellant.

      Michael C. Green, District Attorney, Rochester {Stephen X. O’Brien of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed. Defendant’s argument that he did not receive a hearing in accordance with due process of law is unpreserved for our review. We do not accept defendant’s contention that the error here, if any, constitutes a mode of proceedings error.

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


text:
    David Beneke, Individually and as Trustee of the J. David Beneke Trust, Appellant, v Town of Santa Clara et al., Respondents.
    Submitted February 26, 2007;
    decided April 26, 2007
   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:
    Kiley Blackman, Appellant, v Barbara Stagno et al., Respondents.
    Submitted February 26, 2007;
    decided April 26, 2007
   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:
    Frank J. Blangiardo, Respondent, v Richard Horstmann, Appellant, and Nassau Point Property Owners Association, Inc., Respondent, et al., Defendant.
    Submitted February 20, 2007;
    decided April 26, 2007
   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 Consolidated Edison Company of New York, Inc., Respondent, v City of New York et al., Appellants.
    Submitted April 23, 2007;
    decided April 26, 2007
   Motion by the Association of Towns of the State of New York et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Eleanor Goldstein, Respondent, v Jonathon D. Jones et al., Appellants, and Michelle Stuhl et al., Respondents.
    Submitted February 5, 2007;
    decided April 26, 2007
   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:
    J.A.O. Acquisition Corp. et al., Appellants, v Jeffrey D. Stavitsky et al., Defendants, and First Union National Bank, Formerly Known as CoreStates Bank, N.A., Respondent. (And a Third-Party Action.)
    Submitted March 26, 2007;
    decided April 26, 2007
   Motion for reargument denied [see 8 NY3d 144],


text:
    Duane C. Kendle, Appellant, v Town of Amsterdam et al., Respondents.
    Submitted February 20, 2007;
    decided April 26, 2007
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain this motion for leave to appeal from the Appellate Division order where the appeal to the Appellate Division was from a County Court order entered on an appeal in this action commenced in the City Court of the City of Amsterdam (see NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]).


text:
    Kookmin Bank, in Its Own Right and as Assignee of Sun Jin Dia-tools & Equipment Industrial Company Limited, Respondent, v Sexton Dia-tools, Inc., Defendant, and Woori America Bank, Formerly Known as Hanvit America Bank, Appellant.
    Submitted January 29, 2007;
    decided April 26, 2007
   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:
    Manhattanville College, Appellant, v James John Romeo Consulting Engineer, P.C., et al., Respondents, et al., Defendants.
    Submitted April 2, 2007;
    decided April 26, 2007
   Motion for reargument of motion for leave to appeal denied [see 8 NY3d 852].


text:
    The People of the State of New York, Respondent, v Charles Fludd, Appellant.
    Submitted April 23, 2007;
    decided April 26, 2007
   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 Temel Greene, Appellant.
    Submitted April 2, 2007;
    decided April 26, 2007
   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 Anthony Hill, Appellant.
    Submitted April 2, 2007;
    decided April 26, 2007
   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 Matthew Jones, Appellant.
    Submitted April 23, 2007;
    decided April 26, 2007
   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 Anthony R. Porter, Appellant.
    Submitted April 9, 2007;
    decided April 26, 2007
   Motion for assignment of counsel granted and Timothy E Murphy, Esq., 260 East Avenue, Lockport, New York 14094 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York ex rel. William Mitchell, Appellant, v William Lape, as Superintendent of Marcy Correctional Facility, et al., Respondents.
    Submitted March 19, 2007;
    decided April 26, 2007
   Motion for reargument denied [see 8 NY3d 876].


text:
    Margarita Rivera, Respondent, v Katte Anilesh, D.D.S., et al., Defendants, and Indu Anilesh, D.D.S., Appellant.
    Submitted April 9, 2007;
    decided April 26, 2007
   Motion by FOJP Service Corporation for leave to file a brief amicus curiae on the appeal herein denied as untimely (see Rules of Prac of Ct of Appeals [22 NYCRR] § 500.23).


text:
    Transport Workers Union of America Local 100 AFL-CIO et al., Appellants, v Alan G. Schwartz et al., Respondents, et al., Defendants.
    Submitted January 22, 2007;
    decided April 26, 2007
   Motion for reargument of motion for leave to appeal denied [see 7 NY3d 922]. Motion for leave to appeal denied.


text:
    In the Matter of Victoria H., Appellant. Onondaga County Attorney, Respondent.
    Submitted February 26, 2007;
    decided April 26, 2007
   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 County of Westchester et al., Appellants, v Board of Trustees of State University of New York, Respondent.
    Submitted April 16, 2007;
    decided April 26, 2007
   Motion by Board of Trustees of Nassau Community College 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:
    [872 NE2d 231, 840 NYS2d 545]
    The People of the State of New York, Respondent, v Alfonso Dukes, Appellant.
    Argued March 28, 2007;
    decided May 1, 2007
    APPEARANCES OF COUNSEL

      Mitch Kessler, Cohoes, for appellant.

      Robert M. Carney, District Attorney, Schenectady (Alfred D. Chapleau of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

We agree with defendant’s contention that County Court improperly dismissed a sworn juror over his objection. Pursuant to CPL 270.35 (1), a court may not dismiss a sworn juror unless it has determined that he or she is “grossly unqualified to serve in the case” — that is, only “ ‘when it becomes obvious that a particular juror possesses a state of mind which would prevent the rendering of an impartial verdict’ ” (People v Buford, 69 NY2d 290, 298 [1987]). We underscore once again that, in reaching this determination, the trial court, after a probing and tactful inquiry of each allegedly unqualified juror,

“should carefully consider the juror’s answers and demeanor to ascertain whether her state of mind will affect her deliberations. The trial court’s reasons for its ruling should be placed on the record. In concluding that a juror is grossly unqualified, the court may not speculate as to possible partiality of the juror based on her equivocal responses. Instead, it must be convinced that the juror’s knowledge will prevent her from rendering an impartial verdict” (id. at 299).

Here, County Court failed to abide by this standard. After complainant testified at trial, juror number three informed the court that she and complainant may have worked in the same nursing center and, although she was unsure, she had some recollection that he was fired for an incident involving a gun. She told the court and counsel, however, she was “100 percent sure” she could remain impartial and would not allow this information to influence her decision because she “didn’t know [complainant] very well and [she] wasn’t involved in the incident that happened.” She also stated that she would not mention this to the other jurors.

Despite these assurances, the People sought the juror’s removal. Over defendant’s objection, the court dismissed the juror in favor of an alternate, reasoning that, although she honestly meant that she would be able to remain impartial, at worst “what I’m doing is substituting one qualified juror for another qualified juror.” On this record, the juror’s dismissal was improper, and thus defendant is entitled to a new trial. The court failed to determine that juror number three was grossly unqualified — or indeed, unqualified at all.

Defendant’s contention that his conviction was not supported by sufficient evidence is without merit. In light of the relief ordered, we do not reach his remaining contentions.

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

Order, insofar as appealed from, reversed, etc.


text:
    Appalachian Insurance Company, Respondent, v General Electric Company, Appellant, and Riunione Adriatica DiSicurta, Also Known as Adriatic Insurance Company et al., Respondents, et al., Defendants. (And a Third-Party Action.)
    Submitted April 2, 2007;
    decided May 1, 2007
   Motion for reargument and to amend the opinion and remittitur denied [see 8 NY3d 162].

Judges Read and Jones taking no part.


text:
    Lance Bing, Appellant, v Fairfield Presidential Management Corp., Also Known as Presidential Fairfield Corp., et al., Respondents. Fairfield Presidential Associates, Respondent, v Lance Bing, Appellant.
    Submitted March 12, 2007;
    decided May 1, 2007
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain this motion for leave to appeal from the order of the Appellate Division entered in these actions commenced in the Civil Court of the City of New York (see NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]).


text:
    In the Matter of Debraun M., a Child Alleged to he Neglected. Administration for Children’s Services, Respondent; Walter C., Appellant. (Proceeding No. 1.) In the Matter of Jermaine M., a Child Alleged to be Neglected. Administration for Children’s Services, Respondent; Walter C., Appellant. (Proceeding No. 2.)
    Submitted February 13, 2007;
    decided May 1, 2007
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceedings within the meaning of the Constitution.


text:
    In the Matter of Asem Eldaghar, Appellant, v New York City Housing Authority et al., Respondents.
    Submitted April 2, 2007;
    decided May 1, 2007
   Motion for reargument of motion for leave to appeal denied [see 8 NY3d 804].


text:
    Gabriel Capital, L.P., et al., Appellants, v CAIB Investment-bank AG., Respondent, et al., Defendant.
    Submitted January 29, 2007;
    decided May 1, 2007
   Motion for reargument of motion for leave to appeal denied [see 7 NY3d 922].


text:
    In the Matter of the Foreclosure of Tax Liens by Proceeding In Rem Pursuant to Article 11 of Real Property Law by County of Herkimer, Respondent; Terry R. Jones, Appellant, et al., Respondent.
    Submitted March 12, 2007;
    decided May 1, 2007
   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:
    Island Recycling Corp. et al., Appellants, v New York State Department of Taxation and Finance et al., Respondents.
    Submitted February 16, 2007;
    decided May 1, 2007
   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:
    Long Island Lighting Company, Plaintiff, and KeySpan Corporation, Appellant, v Allianz Underwriters Insurance Company et al., Defendants, and Century Indemnity Company et al., Respondents.
    Submitted April 23, 2007;
    decided May 1, 2007
   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 (see jBurke v Crosson, 85 NY2d 10, 18 n 5 [1995]).


text:
    Raman Mann, an Infant, by His Guardian ad Litem, George S. Akst, et al., Respondents, v Cooper Tire Company et al., Appellants, et al., Defendants.
    Submitted January 29, 2007;
    decided May 1, 2007
   Motion for reargument of motion for leave to appeal denied with $100 costs and necessary reproduction disbursements [see 7 NY3d 718].


text:
    In the Matter of Christopher Mapp, Respondent, v Gregory Burnham, as Chief Technology Officer of Port Authority of New York & New Jersey, et al., Appellants.
    Submitted April 9, 2007;
    decided May 1, 2007
   Motion to dismiss the appeal herein denied.


text:
    In the Matter of Melvin J., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Submitted March 19, 2007;
    decided May 1, 2007
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]; Eaton v State of New York, 76 NY2d 824 [1990]). Motion for poor person relief dismissed as academic.


text:
    In the Matter of Miguel M.-R.B. Graham-Windham, Inc., Respondent; Monique B., Appellant.
    Submitted March 5, 2007;
    decided May 1, 2007
   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:
    Leonora Moran, Appellant, v Regency Savings Bank, F.S.B., et al., Defendants, and Rosenfeld, Bernstein & Tannenhauser, as Trustee, Respondent. Barry Siskin, Esq., Nonparty Appellant.
    Submitted April 9, 2007;
    decided May 1, 2007
   Motion for reargument of motion for leave to appeal denied [see 8 NY3d 868]. Cross motion for the imposition of sanctions denied.


text:
    Donald J. O’Mara III et al., Respondents, v Town of Wappinger, Appellant.
    Submitted April 23, 2007;
    decided May 1, 2007
   Certification of question by the United States Court of Appeals for the Second Circuit, pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NCYRR 500.27), accepted and the issues presented are to be considered after briefing and argument.

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


text:
    The People of the State of New York ex rel. Roy Green, Appellant, v Joseph T. Smith, as Superintendent of Shawangunk Correctional Facility, Respondent.
    Submitted April 2, 2007;
    decided May 1, 2007
   Motion for reargument denied [see 8 NY3d 806], Motion for poor person relief dismissed as academic.


text:
    Ryszard Pilch, Appellant, v Board of Education of City of New York et al., Respondents.
    Submitted February 26, 2007;
    decided May 1, 2007
   Motion for reargument granted and, upon reargument, motion for leave to appeal denied [see 8 NY3d 828].


text:
    State of New York Higher Education Services Corporation, Respondent, v Suzy J. Sparozic, Appellant.
    Submitted February 20, 2007;
    decided May 1, 2007
   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:
    Urban Justice Center et al., Appellants, v Eliot Spitzer, as Governor of the State of New York, et al., Respondents.
    Submitted February 10, 2007;
    decided May 1, 2007
   Motion to substitute Governor Eliot Spitzer in place of former Governor George Pataki as a party defendant herein granted. On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    In the Matter of David Watts et al., Appellants, v New York State Department of Environmental Conservation et al., Respondents.
    Submitted April 16, 2007;
    decided May 1, 2007
   Motion by the Village of Saltaire for leave to file an affirmation amicus curiae on the motion for leave to appeal herein granted and the affirmation is accepted as filed.


text:
    [868 NE2d 185, 836 NYS2d 505]
    The People of the State of New York, Appellant, v Juan Castillo, Respondent.
    Argued March 29, 2007;
    decided May 3, 2007

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney, New York City {Michael S. Morgan and. Morrie I. Kleinbart of counsel), for appellant.

      Office of the Appellate Defender, New York City {Jonathan Marvinny, Richard M. Greenberg and Sara Gurwitch of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was indicted for various crimes, including criminal possession of a controlled substance in the first degree and two counts of robbery in the first degree under Penal Law § 160.15 (4), arising out of a robbery of a known drug dealer in Manhattan.

Penal Law § 160.15 provides that “[a] person is guilty of robbery in the first degree when he forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime” commits one of the acts further specified in subdivisions (1) through (4). As relevant here, Penal Law § 160.15 (4) requires the “[d]isplay [of] what appears to be a . . . firearm.”

Pursuant to a plea agreement, defendant pleaded guilty to the drug charge and robbery in the first degree under Penal Law § 160.15 (2) — not charged in the indictment — which requires that defendant forcibly steal property while “armed with a deadly weapon.” His allocution made no mention of the display element of Penal Law § 160.15 (4).

Under CPL 220.10 (4), when an indictment charges two or more offenses in separate counts, defendant may plead guilty, with permission of the court and the People, to one or more of the offenses charged and/or lesser included offenses of any of the offenses charged. In People v Johnson (89 NY2d 905, 907 [1996]), we observed that the provisions of CPL article 220 are “in some respects . . . jurisdictional in nature because of constitutional implications” referring to article I, § 6 of the New York Constitution. We cautioned that the limited exceptions to CPL article 220 “should not be extended ... to a plea to a crime ... of equal or higher grade or degree to the crimes charged” (id. at 908). We reaffirmed this principle in People v Keizer (100 NY2d 114, 119 [2003]), stating that “a jurisdictional defect was implicated when the defendant pleaded guilty to charges equal to or higher than those for which he was indicted” (see also People v Martinez, 285 AD2d 387 [1st Dept 2001]).

As conceded by the People, Penal Law § 160.15 (2) is not a lesser included offense of Penal Law § 160.15 (4), neither by statute nor by the enumerated scenarios of CPL 220.20 (see also CPL 1.20 [37]; CPL 220.10). Although the subdivisions of Penal Law § 160.15 share the common element of forcible stealing, each encompasses a distinct additional element. It is irrelevant that underlying facts may exist to support more than one subdivision, as only one was charged in the indictment.

As defendant was not charged with robbery under Penal Law § 160.15 (2) and it is not a lesser included offense of Penal Law § 160.15 (4), the plea was jurisdictionally defective and properly vacated.

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

Order affirmed in a memorandum.


text:
    [868 NE2d 186, 836 NYS2d 506]
    Nick Pavlou et al., Appellants, v City of New York, Respondent, et al., Defendant and Third-Party Plaintiff. Felix Industries, Inc., Third-Party Defendant-Respondent. (And Another Action.)
    Decided May 3, 2007

      APPEARANCES OF COUNSEL

      Hancock & Estabrook, Syracuse (Alan J. Pierce of counsel), for appellants.

      Quirk and Bakalor, PC., New York City (Timothy J. Keane of counsel), for respondent.

      Lester Schwab Katz & Dwyer, LLP, New York City {John Sandercock of counsel), for Felix Industries, Inc., third-party defendant-respondent.

      Callan, Koster, Brady & Brennan, LLP, Uniondale {Michael P. Kandler of counsel), for Hampton C.F. Corp., third-party defendant-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.

In this personal injury case arising from the collapse of a crane on a construction site, the jury found that the operation of the crane with an excess load, in violation of Industrial Code (12 NYCRR) § 23-8.2 (g) (2) (iii), amounted to negligence but that this was not a proximate cause of the injury suffered by plaintiff. Experts testified at trial that the crane had a preexisting crack that made it unsafe to operate with any load. The jury’s finding that the collapse was caused by the defect in the crane, and not the size of the load, was therefore supported by record evidence. Based on the proof, issues of negligence and causation were not inextricably interwoven in this case and the jury verdict, which did not apportion any liability to the City of New York, was not inconsistent (cf. Marine Midland Bank v Russo Produce Co., 50 NY2d 31, 41 [1980]). Because the Appellate Division did not abuse its discretion when it reversed Supreme Court’s order granting a new trial, further consideration of plaintiffs’ arguments is beyond our review power (see Levo v Greenwald, 66 NY2d 962, 963 [1985]). Finally, in this procedural context, this Court may not review the December 2002 nonfinal Appellate Division order (300 AD2d 120 [2002]) on this appeal from the June 2005 order (see Weinberg v Hertz Corp., 69 NY2d 979, 981 [1987]; CPLR 5713, 5501 [a] [1]).

Chief Judge Kaye 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:
    [868 NE2d 187, 836 NYS2d 507]
    Craig Clementoni, Appellant, v Consolidated Rail Corporation, Also Known as Conrail, et al., Defendants, and Paul Skowron, as Voluntary Administrator of the Estate of Raymond Skowron, Deceased, et al., Respondents.
    Argued March 27, 2007;
    decided May 3, 2007

      APPEARANCES OF COUNSEL

      Paul William Beltz, PC., Buffalo (Debra A. Norton of counsel), for appellant.

      Gibson, McAskill & Crosby, LLP, Buffalo (C. Christopher Bridge and Tara N.K. Cross of counsel), for Harold M. Gardner and another, respondents.

      O’Neill, Feeley & Brownell, Buffalo (Michael T. Feeley of counsel), for Paul Skowron, respondent.
   OPINION OF THE COURT

Memorandum.

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

This appeal arises out of the collision of an automobile driven by plaintiff Craig Clementoni and a train operated by the Consolidated Rail Corporation (Conrail). The accident occurred at around 6:00 p.m. on September 27, 1994, as plaintiff was driving across a set of railroad tracks at an unmarked grade crossing intersecting a private gravel road owned by Raymond and Gertrude Skowron in northeast Erie County. Conrail owned and maintained the tracks and the 50-foot wide right-of-way in which they were centered. The right-of-way was a slightly raised pathway, with paved approaches connecting to the gravel road on either side of the tracks. Defendants Harold M. and Patricia Gardner owned property bordering the right-of-way at the crossing.

On September 16, 1997, plaintiff sued Conrail, the railroad engineer operating the train, the Skowrons and the Gardners to recover for his injuries. As relevant to this appeal, plaintiff alleged that the Skowrons negligently failed to warn him of the hazard of oncoming trains by erecting signs, gates or warning signals at the crossing; he contended that trees and other foliage on the Gardners’ property obstructed his view of the oncoming train. Defendants moved for summary judgment, which Supreme Court denied without opinion. The Appellate Division, with two Justices dissenting, reversed Supreme Court’s order, granted the motions, and dismissed the complaint and the cross claims against these defendants.

“[A]s a general matter, [a landowner] owes no duty to warn or to protect others from a defective or dangerous condition on neighboring premises, unless the [landowner] ha[s] created or contributed to it” (Galindo v Town of Clarkstown, 2 NY3d 633, 636 [2004]). Here, the grade crossing had existed since at least 1939, long before the Skowrons purchased the property. In Galindo, we left open “the possibility that some dangers from neighboring property might be so clearly known to the landowner, though not open or obvious to others, that a duty to warn would arise” (id. at 637 [emphasis added]). The Skowrons, however, had “no reason to expect that [plaintiff] would not observe the hazard or any conceivable risk associated with it” (Tagle v Jakob, 97 NY2d 165, 170 [2001]). Plaintiff assumed that the tracks were actively used by Conrail’s trains. He testified that he stopped and looked in both directions for oncoming trains and proceeded cautiously each time he approached the tracks, which he uneventfully drove across three times on September 27, 1994 before the accident. As for the Gardners, a landowner is generally not liable for the existence of uncut vegetation obstructing the view of motorists at an intersection (see Prosser and Keaton, Torts § 57 at 390 [5th ed]).

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of the Estate of Abraham XX., Deceased. Kathleen XX., as Administrator of the Estate of Abraham XX., Deceased, Appellant; State of New York, Respondent.
    Submitted March 12, 2007;
    decided May 3, 2007
   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.

Judge Graffeo taking no part.


text:
    Mitchell Benesowitz, Appellant, v Metropolitan Life Insurance Company et al., Respondents.
    Submitted April 30, 2007;
    decided May 3, 2007
   Motion by the Life Insurance Council of New York, Inc. for leave to appear amicus curiae on consideration of the certified question herein granted only to the extent that the proposed brief is accepted as filed.


text:
    Mitchell Benesowitz, Appellant, v Metropolitan Life Insurance Company et al., Respondents.
    Submitted April 30, 2007;
    decided May 3, 2007
   Motion by American Council of Life Insurers et al. for leave to appear amici curiae on consideration of the certified question herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief may be served and 24 copies filed within seven days.


text:
    In the Matter of Consolidated Edison Company of New York, Inc., Respondent, v City of New York et al., Appellants.
    Submitted April 30, 2007;
    decided May 3, 2007
   Motion by Nassau County for leave to file a brief amicus curiae on the appeal herein denied as untimely (see Rules of Prac of Ct of Appeals [22 NYCRR] § 500.23).


text:
    Yolanda Erazo, Respondent, v Manuel P. Cabeca, Appellant.
    Submitted March 5, 2007;
    decided May 3, 2007
   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 Noel Feustel, Appellant, v Scott S. Rosenblum et al., Respondents.
    Submitted March 5, 2007;
    decided May 3, 2007
   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:
    Holly M. Gibbons, Appellant, v Foster J. Gibbons, Respondent.
    Submitted February 13, 2007;
    decided May 3, 2007
   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:
    HSBC Bank USA, Respondent, v Robin R. Merrill, Appellant, et al., Defendant.
    Submitted March 5, 2007;
    decided May 3, 2007
   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 James L. Kapsis et al., Appellants, v Neil W. Kelleher et al., Respondents, and State Committee of the New York State Independence Party et al., Respondents.
    Submitted March 5, 2007;
    decided May 3, 2007
   Motion for leave to appeal dismissed upon the ground that the issues presented have become moot.


text:
    Lynda G. Kessler, Respondent, v John A. Kessler, Appellant.
    Submitted March 12, 2007;
    decided May 3, 2007
   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 Kimberly Carolyn J. and Another, Children Alleged to be Permanently Neglected. Towanna Edna J., Appellant; Cardinal McCloskey Services for Children, Respondent.
    Submitted March 19, 2007;
    decided May 3, 2007
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that dismissed the appeal from the dispositional orders entered upon default, dismissed upon the ground that no appeal lies from an Appellate Division order dismissing an appeal from an order entered upon default (see CPLR 5511); 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 poor person relief dismissed as academic.

Chief Judge Kaye taking no part.


text:
    Julie McKenna et al., Appellants, v Susan Connors et al., Respondents.
    Submitted March 5, 2007;
    decided May 3, 2007
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed Supreme Court’s order denying the motion to vacate, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    James Moran, Appellant, v McCarthy, Safrath & Carbone, P.C., et al., Respondents. Joseph Giovanni et al., Nonparty Respondents.
    Submitted January 22, 2007;
    decided May 3, 2007
   Motion, insofar as it seeks leave to appeal as against defendants McCarthy, Safrath & Carbone, P.C., Pat McCarthy and Richard Safrath from the Appellate Division order of affirmance, dismissed as untimely. The prior motion for leave to appeal made to the Appellate Division was untimely as to defendants (see Karger, Powers of the New York Court of Appeals § 12:3, at 436-437 [rev 3d ed 2005]). Motion, insofar as it seeks leave to appeal as against nonparty respondents Joseph Giovanni, Mona Giovanni, William Votta and Adele Votta from so much of the Appellate Division order as affirmed Supreme Court’s order denying discovery, dismissed upon the ground that as to the nonparty respondents the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion, insofar as it seeks leave to appeal from the Appellate Division order 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.


text:
    Patricia Nonnon, Individually and as Executrix of Kerri Nonnon, Deceased, et al., Respondents, v City of New York, Appellant. (And Other Actions.)
    Submitted April 30, 2007;
    decided May 3, 2007
   Motion by Product Liability Advisory Council Inc. 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:
    Patricia Nonnon, Individually and as Executrix of Kerri Nonnon, Deceased, et al., Respondents, v City of New York, Appellant. (And Other Actions.)
    Submitted April 30, 2007;
    decided May 3, 2007
   Motion by Marcia Angelí 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 Yul Brannum, Appellant.
    Submitted March 12, 2007;
    decided May 3, 2007
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain it (see CPLR 5602). Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York, Respondent, v Jonathan Dean, Appellant.
    Submitted April 30, 2007;
    decided May 3, 2007
   Motion for assignment of counsel granted and Jaime C. Louridas, Esq., care of Louridas & Louridas, Esqs., 3034 Patrick Road, Schenectady, New York 12303 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Manuel Rivera, Also Known as Angel Rivera, Appellant.
    Submitted April 30, 2007;
    decided May 3, 2007
   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:
    Sonia Rosario et al., Respondents, et al., Plaintiffs, v Diagonal Realty, LLC, et al., Appellants, et al., Defendants.
    Submitted April 30, 2007;
    decided May 3, 2007
   Motion by AARP 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:
    Sonia Rosario et al., Respondents, et al., Plaintiffs, v Diagonal Realty, LLC, et al., Appellants, et al., Defendants.
    Submitted April 30, 2007;
    decided May 3, 2007
   Motion by New York City Council et al. for leave to file a brief amici curiae on the appeal herein granted. Three copies of the brief may be served and an original and 24 copies filed within seven days.


text:
    In the Matter of Simone D., Appellant. Kathleen Iverson, Respondent.
    Submitted April 30, 2007;
    decided May 3, 2007
   Motion by Disability Advocates, Inc. et al. for leave to file a brief amici curiae on the appeal herein granted. Three copies of the brief may be served and an original and 24 copies filed within seven days.


text:
    [868 NE2d 226, 836 NYS2d 544]
    In the Matter of Rodney Elliott, Appellant, v Sheryl Butler, as Deputy Superintendent of Programs, Eastern Correctional Facility, et al., Respondents.
    Decided May 8, 2007
    APPEARANCES OF COUNSEL

      Rodney Elliott, appellant pro se.

      Andrew Cuomo, Attorney General, Albany (Kate H. Nepveu, Barbara D. Underwood and Daniel Smirlock of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, without costs, and matter remitted to Supreme Court, Albany County, for a traverse hearing. The parties’ submissions on the motion to dismiss raise issues of fact requiring a traverse hearing.

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


text:
    [868 NE2d 211, 836 NYS2d 531]
    The People of the State of New York, Respondent, v Paul Person, Appellant.
    Argued March 29, 2007;
    decided May 8, 2007
    APPEARANCES OF COUNSEL

      Office of the Appellate Defender, New York City (Sara Gurwitch and Richard M. Greenberg of counsel), for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant orchestrated a robbery that was perpetrated by two accomplices whose actions resulted in the death of the victim. After being apprehended by the police, the accomplices gave videotaped statements incriminating themselves but exculpating defendant of involvement in the crime. The accomplices later entered into cooperation agreements with the People and gave testimony at trial detailing defendant’s role in planning the robbery.

During cross-examination of the accomplices, defense counsel used the transcripts of the videotaped interviews to impeach the credibility of the witnesses by questioning them about the prior inconsistent statements each had initially made to the police. Both accomplices acknowledged they made the prior inconsistent statements. Defense counsel then sought to introduce the videotaped interviews into evidence. Supreme Court denied the request because the accomplices admitted they made the statements on the videotapes. Defendant was subsequently convicted of multiple counts of robbery in the first and second degrees.

Before our Court, defendant asserts that preclusion of the videotaped statements was erroneous as a matter of law because Supreme Court failed to recognize that the jury could not reliably gauge the credibility of the witnesses without viewing their demeanor and hearing their voices during the police interviews. At trial, however, the crux of defendant’s argument was that he should be able to use the videotapes, rather than the transcripts, to prove the content of the prior inconsistent statements. Defendant at that time failed to explain how the videotapes would have conveyed information beyond that provided by the verbatim transcripts of the statements. As a result, he did not preserve his current contention that Supreme Court had discretion to admit the videotapes because they were relevant to the jury’s ability to reliably evaluate the credibility of the witnesses. We therefore have no occasion to consider whether the preclusion of this evidence constituted an abuse of discretion as a matter of law. Defendant’s constitutional claims are similarly unpreserved.

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

Order affirmed in a memorandum.


text:
    Elizabeth Alden, Appellant, v St. Joseph’s Hospital Health Center, Respondent.
    Submitted April 30, 2007;
    decided May 8, 2007
   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 Marylynn Cellamare, Appellant, v Steven Lakeman, Respondent.
    Submitted April 30, 2007;
    decided May 8, 2007
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Anthony L. Clapes et al., Appellants, v Tax Appeals Tribunal of the State of New York et al., Respondents.
    Submitted April 30, 2007;
    decided May 8, 2007
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Data Tree, LLC, Appellant, v Edward P. Romaine, Respondent.
    Submitted March 19, 2007;
    decided May 8, 2007
   Motion by LexisNexis et al. for leave to file a brief amici curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    Hilary Guishard et al., Respondents, v General Security Insurance Company, Appellant.
    Submitted February 20, 2007;
    decided May 8, 2007
   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 granted.


text:
    Richard J. Ham et al., Respondents, v City of Syracuse et al., Appellants.
    Submitted April 2, 2007;
    decided May 8, 2007
   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:
    Keith Haywood, Appellant, v Curtis Drown, Respondent. Keith Haywood, Appellant, v Pat Smith et al., Respondents.
    Submitted February 26, 2007;
    decided May 8, 2007
   Motion for poor person relief granted.


text:
    In the Matter of Kahlil S., an Infant. Erie County Department of Social Services, Appellant; Mamie W.-K., Respondent. In the Matter of Terrell Z., an Infant. Erie County Department of Social Services, Appellant; Mamie W.-K., Respondent.
    Submitted April 23, 2007;
    decided May 8, 2007
   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. Motion for a stay pending disposition of the appeal dismissed as academic.


text:
    Ashok Kashelkar, Appellant, v State of New York, Respondent.
    Submitted April 30, 2007;
    decided May 8, 2007
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, First Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).


text:
    In the Matter of Love’M Sheltering, Inc., Appellant, v County of Suffolk et al., Respondents.
    Submitted April 23, 2007;
    decided May 8, 2007
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Linda G. Nelson Maddox, Appellant, v State University of New York at Albany et al., Respondents.
    Submitted April 2, 2007;
    decided May 8, 2007
   Motion for reargument of motion for leave to appeal denied [see 8 NY3d 803], Motion for poor person relief dismissed as academic.


text:
    In the Matter of Linda G. Nelson Maddox, Appellant, v State University of New York at Albany et al., Respondents.
    Submitted April 30, 2007;
    decided May 8, 2007
   Appeal, insofar as taken from the Appellate Division order denying reargument or leave to appeal, 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; appeal, insofar as taken from the Appellate Division order of affirmance, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Tamara Miles-Stallworth, Appellant, v Lakeshore Nursing Home, Respondent. Workers’ Compensation Board, Respondent.
    Submitted March 12, 2007;
    decided May 8, 2007
   Motion for leave to appeal 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 NCYRR 500.22 [b] [2]). Motion for poor person relief dismissed as academic.


text:
    John Moody, Respondent, v Svetlana Sorokina, Appellant.
    Submitted April 30, 2007;
    decided May 8, 2007
   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 Edward Moskowitz, an Attorney, Appellant. Grievance Committee for the Second and Eleventh Judicial Districts, Respondent.
    Submitted April 30, 2007;
    decided May 8, 2007
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    North Shore Environmental Solutions, Inc., et al., Plaintiffs, and Jaro Zitnansky, Appellant, v Allen K. Glass et al., Respondents.
    Submitted April 23, 2007;
    decided May 8, 2007
   Motion for reargument of motion for leave to appeal denied [see 8 NY3d 894].


text:
    135 West 36th LLC et al., Respondents, v World City America Inc. et al., Defendants, and Charles Gallagher et al., Appellants.
    Submitted February 26, 2007;
    decided May 8, 2007
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed the denial of appellants’ cross motion for disqualification of respondents’ counsel, dismissed upon the ground that such part of the Appellate Division 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 Alphonso Kirksey, Appellant.
    Submitted April 23, 2007;
    decided May 8, 2007
   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 action (see NY Const, art VI, § 3 [bj; CPLR 5601; CPL 450.90).


text:
    Melanie Snuszki, as Administrator of the Estate of Peggy A.B. Wright, Deceased, for Benefit of Ian Wright, Respondent, v Thomas Wright, Appellant, and Andrew M. Cuomo, as Attorney General of the State of New York, Intervenor-Respondent.
    Submitted April 30, 2007;
    decided May 8, 2007
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.

Judge Pigott taking no part.


text:
    In the Matter of Adult Home at Erie Station, Inc., Respondent, v Assessor and Board of Assessment Review of City of Middletown et al., Appellants.
    Submitted April 30, 2007;
    decided June 5, 2007
   Motion by the New York State Assessors Association 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:
    Beal Savings Bank, Appellant, v Viola Sommer et al., as Trustees of a Trust under the Will of Sigmund Sommer, Respondents.
    Submitted April 30, 2007;
    decided June 5, 2007
   Motion for reargument denied [see 8 NY3d 318].

Judges Read and Jones taking no part.


text:
    Beal Savings Bank, Appellant, v Viola Sommer et al., as Trustees of a Trust under the Will of Sigmund Sommer, Respondents.
    Submitted April 30, 2007;
    decided June 5, 2007
   Motion for relief ancillary to the motion by Beal Savings Bank for reargument denied [see 8 NY3d 318].

Judges Read and Jones taking no part.


text:
    Owen F. Burns III et al., Appellants, v James R. Varriale Jr., Defendant, and St. Paul/Travelers Insurance Company, Respondent. (And a Related Proceeding.)
    Submitted May 14, 2007;
    decided June 5, 2007
   Motion by Injured Workers’ Bar Association 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 Christine G. Administration for Children’s Services, Respondent; Herbie G., Appellant. In the Matter of Michelle G. Administration for Children’s Services, Respondent; Herbie G., Appellant.
    Submitted April 9, 2007;
    decided June 5, 2007
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]). Motion for poor person relief dismissed as academic.


text:
    Nancy Giandana, Individually and as Administratrix of the Estate of Anna E. Demuth, Deceased, Respondent, v Providence Rest Nursing Home et al., Defendants. Providence Rest Nursing Home, Third-Party Plaintiff, v Ramar Services, Inc., Third-Party Defendant, and Becky Akosah, Third-Party Defendant-Appellant.
    Submitted April 30, 2007;
    decided June 5, 2007
   Motion for reargument denied [see 8 NY3d 859].

Judge Jones taking no part.


text:
    ITC Limited et al., Appellants, v Punchgini, Inc., et al., Respondents.
    Submitted May 14, 2007;
    decided June 5, 2007
   Certification of questions by the United States Court of Appeals for the Second Circuit, pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), accepted and the issues presented are to be considered after briefing and argument.

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


text:
    Betty Kolnacki, Appellant, v State of New York, Respondent.
    (Claim No. 103121.)
    Submitted April 16, 2007;
    decided June 5, 2007
   Motion for reargument denied [see 8 NY3d 277].

Judges Pigott and Jones taking no part.


text:
    In the Matter of Mariella Mayorca-Piccolo, Appellant, v Stephen J. Piccolo Jr., Respondent.
    Submitted March 26, 2007;
    decided June 5, 2007
   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:
    Solomon Mesholam, Respondent, v Isabelle Helene Mesholam, Appellant.
    Submitted March 26, 2007;
    decided June 5, 2007
   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:
    Zelinet C. Moya et al., Appellants, v Penske Truck Leasing Company et al., Respondents.
    Submitted April 30, 2007;
    decided June 5, 2007
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain this motion for leave to appeal from the order of the Appellate Division entered in this action which is treated as if commenced in the Civil Court of the City of New York (NY Const, art VI, § 3 [bj [7]; CPLR 5602 (a]; see also CPLR 326 [b]).


text:
    The People of the State of New York, Respondent, v Dean Bennett, Appellant.
    Submitted May 29, 2007;
    decided June 5, 2007
   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 William Cuadrado, Appellant.
    Submitted May 7, 2007;
    decided June 5, 2007
   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 Winston Gajadhar, Appellant.
    Submitted May 21, 2007;
    decided June 5, 2007
   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 Jose Leon, Appellant.
    Submitted May 29, 2007;
    decided June 5, 2007
   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 Harry Louis, Appellant.
    Submitted May 21, 2007;
    decided June 5, 2007
   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 Damon McCoy, Appellant.
    Submitted May 21, 2007;
    decided June 5, 2007
   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 Dwain Meekins, Appellant.
    Submitted May 14, 2007;
    decided June 5, 2007
   Motion for assignment of counsel granted and Lynn WL. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Alexander Pasley, Appellant.
    Submitted May 29, 2007;
    decided June 5, 2007
   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. Edward Brown, Appellant, v James Conway, as Superintendent of Attica Correctional Facility, Respondent.
    Submitted April 2, 2007;
    decided June 5, 2007
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no appeal lies from the order of an individual Justice of the Appellate Division (see NY Const, art VI, § 3 [b]; CPLR 5601). Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York ex rel. Richard Chalk, Appellant, v Robert Ercole, Respondent.
    Submitted April 9, 2007;
    decided June 5, 2007
   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:
    The People of the State of New York ex rel. Lance Sessoms, Appellant, v Robert Ercole, Respondent.
    Submitted April 9, 2007;
    decided June 5, 2007
   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:
    The People of the State of New York ex rel. Boris Teichman (Teishman), Appellant, v Brian Riordan, as Warden, Respondent.
    Submitted April 9, 2007;
    decided June 5, 2007
   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:
    In the Matter of Simone D., Appellant. Kathleen Iverson, Respondent.
    Submitted May 21, 2007;
    decided June 5, 2007
   Motion by New York State Psychiatric Association, Inc. for leave to file a brief amicus curiae on the appeal herein denied as untimely (see Rules of Prac of Ct of Appeals [22 NYCRR] § 500.23).


text:
    Steel Los III, LP, et al., Respondents, v Power Authority of State of New York, Appellant.
    Submitted March 26, 2007;
    decided June 5, 2007
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution and is not an order of the type provided for in CPLR 5602 (a) (2).


text:
    In the Matter of Steve Stroman, Appellant, v Peter E. Corning, as a County Court Justice, Respondent.
    Submitted May 7, 2007;
    decided June 5, 2007
   Motion for reargument denied [see 8 NY3d 908].

Judge Pigott taking no part.


text:
    [870 NE2d 678, 839 NYS2d 439]
    In the Matter of Christopher Mapp, Respondent, v Gregory Burnham, as Chief Technology Officer of Port Authority of New York and New Jersey, et al., Appellants.
    Decided June 7, 2007

      APPEARANCES OF COUNSEL

      Milton H. Pachter, General Counsel, Port Authority of New York and New Jersey, New York City (Joan F. Bennett, Carlene McIntyre and Anne M. Tannenbaum of counsel), for appellants.

      Traub & Traub, P.C., New York City (Doris G. Traub of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment appealed from and the order of the Appellate Division brought up for review should be reversed, with costs, and the petition dismissed. The determination of respondent Port Authority of New York and New Jersey (the PA) terminating petitioner’s employment is supported by substantial evidence (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 230 [1974]). Evidence in the record supports the finding that petitioner misled the American Red Cross concerning his employment status and obtained financial assistance under false pretenses. Moreover, in light of petitioner’s misconduct, “we cannot conclude that the penalty of dismissal imposed . . . shocks the judicial conscience” (Matter of Rutkunas v Stout, 8 NY3d 897, 898 [2007] [internal citations and quotation marks omitted]; see Matter of Scahill v Greece Cent. School Dist., 2 NY3d 754, 756 [2004]; Matter of Pell, 34 NY2d at 233).

Chief Judge Kaye 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), judgment appealed from and order of the Appellate Division brought up for review reversed, etc.


text:
    [870 NE2d 679, 839 NYS2d 440]
    In the Matter of Bethelite Community Church, Great Tomorrows Elementary School, Respondent, v Department of Environmental Protection of the City of New York et al., Appellants.
    Decided June 7, 2007
    APPEARANCES OF COUNSEL

      Michael A. Cardozo, Corporation Counsel, New York City (.Ronald E. Sternberg of counsel), for appellants.

      Anthony C. Jones, New York City, for respondent.
   OPINION OF THE COURT

Memorandum.

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

Petitioner is a religious corporation that operates a church and school in a building it occupies in Manhattan. Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination of the Department of Environmental Protection of the City of New York denying it a full exemption from water and sewer charges under chapter 696 of the New York Laws of 1887, as amended by chapter 893 of the Laws of 1980, and section 24-514 (e) of the Administrative Code of the City of New York, respectively.

Respondents do not now dispute the denial of their preanswer motion to dismiss the proceeding. They only challenge that Supreme Court proceeded to the merits without permitting them to submit an answer. Supreme Court erred in granting the petition without first affording respondents an opportunity to answer (see CLPR 7804 [f]; Matter of Nassau BOCES Cent. Council of Teachers v Board of Coop. Educ. Servs. of Nassau County, 63 NY2d 100, 102-104 [1984]). Accordingly, this case must be remitted to Supreme Court to allow respondents to submit an answer and for further proceedings on the pleadings.

Chief Judge Kaye 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:
    In the Matter of Amy Guernsey, Respondent, v Richard Guernsey, Appellant. (And Another Related Proceeding.)
    Submitted April 16, 2007;
    decided June 7, 2007
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceedings within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Sofia Herrera et al., Respondents, v Carlisle St. Martin et al., Defendants, and Richard Gasalberti, Appellant, et al., Respondents.
    Submitted April 16, 2007;
    decided June 7, 2007
   Motion for leave to appeal denied.


text:
    In the Matter of Julia BB. and Others, Children Alleged to be Severely Abused. Saratoga County Department of Social Services, Appellant; Diana BB., Respondent. In the Matter of Julia BB. and Others, Children Alleged to be Severely Abused. Saratoga County Department of Social Services, Appellant; Francis BB., Respondent.
    Submitted June 5, 2007;
    decided June 7, 2007
   Motion to vacate stay granted.


text:
    In the Matter of Pritpal Kainth, Appellant, v Inder Kainth, Respondent.
    Submitted April 2, 2007;
    decided June 7, 2007
   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:
    Julie Levine, Appellant, v Robert Levine, Respondent.
    Submitted April 9, 2007;
    decided June 7, 2007
   Motion, insofar as it seeks leave to appeal from the Appellate Division order modifying, and as modified, affirming Supreme Court’s April 25, 2005 judgment, denied; motion, insofar as it seeks leave to appeal from the Appellate Division order enforcing provisions of the divorce judgment and awarding attorneys’ fees in connection with the enforcement, dismissed upon the ground that such Appellate Division order does not finally determine the action within the meaning of the Constitution.


text:
    Municipal Testing Laboratory, Inc., Respondent, v Aleksandr Brom et al., Appellants.
    Submitted April 30, 2007;
    decided June 7, 2007
   Motion to dismiss the appeal herein granted and appeal dismissed, with $400 costs and $100 costs of motion, upon the ground that the order appealed from does not finally determine the action 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 action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v Duane J. Charache, Appellant.
    Submitted May 7, 2007;
    decided June 7, 2007
   Motion to expand the record granted on consent.


text:
    The People of the State of New York, Respondent, v Michael Rawlins, Appellant.
    Submitted June 4, 2007;
    decided June 7, 2007
   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. Frederic Carpenter, Appellant, v Michael Corcoran, Respondent.
    Submitted April 9, 2007;
    decided June 7, 2007
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    The People of the State of New York ex rel. Bernard Pitts, Appellant, v Joseph McCoy, as Superintendent of Cayuga Correctional Facility, Respondent.
    Submitted April 23, 2007;
    decided June 7, 2007
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain it.


text:
    The People of the State of New York ex rel. Justo Richards, Appellant, v Calvin West, Respondent. In the Matter of Justo Richards, Appellant, v Calvin West, Respondent.
    Submitted May 7, 2007;
    decided June 7, 2007
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the orders appealed from do not finally determine the proceedings within the meaning of the Constitution. 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. Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York ex rel. Donald Walsh, Appellant, v Carol B. Woughter, Respondent.
    Submitted May 14, 2007;
    decided June 7, 2007
   Motion to strike denied.


text:
    Amanda S. Ritz, Appellant, v Michael D. Ritz, Respondent.
    Submitted April 2, 2007;
    decided June 7, 2007
   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:
    Francisco Sanchez, Appellant, v State of New York, Respondent.
    Submitted May 7, 2007;
    decided June 7, 2007
   Motion by the Legal Aid Society of the City of New York et al. for leave to file a brief amici curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    Markking Smalls, Appellant-Respondent, v AJI Industries, Inc., et al., Respondents, and Jahkim A. Jenkins et al., Respondents-Appellants.
    Submitted April 30, 2007;
    decided June 7, 2007
   Motion to dismiss appeal denied.


text:
    State of New York et al., Appellants, v Philip Morris Incorporated et al., Defendants. Commonwealth Brands, Inc., et al., Nonparty Respondents.
    Submitted February 20, 2007;
    decided June 7, 2007
   Motion to supplement the record on appeal herein denied.


text:
    Gregory G. Stiver et al., Appellants, v Good & Fair Carting & Moving, Inc., Respondent.
    Submitted June 4, 2007;
    decided June 7, 2007
   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:
    In the Matter of Robert Ward et al., Petitioners, and Justo Richards, Appellant, v Eliot Spitzer, Respondent.
    Submitted April 9, 2007;
    decided June 7, 2007
   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:
    Howard L. Wexler, Respondent, v Barbara E. Wexler, Appellant.
    Submitted April 2, 2007;
    decided June 7, 2007
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument or, in the alternative, leave to appeal to the Court of Appeals, dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Stephen J. Williams (Admitted as Stephen John Williams), an Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted April 23, 2007;
    decided June 7, 2007
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for sanctions denied.


author: Chief Judge Kaye

text:
    [870 NE2d 1132, 839 NYS2d 702]
    In the Matter of Greene County Department of Social Services, on Behalf of Jeffrey Ward, Respondent, v Dawn Ward, Appellant.
    Argued April 24, 2007;
    decided June 12, 2007

      APPEARANCES OF COUNSEL

      Law Office of Anne Reynolds Copps, Albany (Anne Reynolds Copps and Heena Shaikh of counsel), for appellant.

      Heather K. Sheehan, Catskill, for respondent.
   OPINION OF THE COURT

Memorandum.

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

In 2000, Dawn Ward, an unmarried registered nurse, contacted Downey Side Families for Youth with hopes of adopting a special needs child. She was presented with Jeffrey, born prematurely at 27 weeks. Although Jeffrey tested positive for cocaine and syphilis at birth, Ms. Ward was informed that his mother had not habitually used drugs and alcohol during her pregnancy, and that Jeffrey was a “quiet, gentle and pleasant child.”

Jeffrey was placed with Ms. Ward on May 3, 2001, and she subsequently began receiving a $1,000 monthly subsidy to assist with his support {see NJ Admin Code § 10:121-1.3 [“Payments for the care and maintenance of a special needs child (adoption subsidy)”]). At the time of placement, he was three years old, weighed 25 pounds, drank from a bottle, was nonverbal, and had been diagnosed with mild cerebral palsy and asthma. Ms. Ward enrolled Jeffrey in an early intervention program and he underwent surgeries to improve his swallowing and breathing capabilities. He began to put on weight and develop his verbal skills. On June 20, 2002, the adoption was finalized.

His emotional and mental development, however, continued to be delayed. In 2001 and 2002, Jeffrey exhibited increasingly aggressive behavior. He began eating sand and grass, biting, licking and spitting at adults, and exhibiting bouts of uncontrolled yelling. By October 2002, Jeffrey’s behavior had deteriorated even further. He regressed in toileting, dressing and eating. His behavior at daycare now included head-banging, hitting and kicking other children and throwing chairs and objects. In February 2003, he was diagnosed with pervasive developmental disorder. Jeffrey’s play therapist advised Ms. Ward that Jeffrey had significant neurological issues resulting from exposure to drugs and alcohol in utero. Another psychiatrist diagnosed him with attachment disorder, obsessive-compulsive disorder and autism.

Jeffrey’s behavior did not improve. He injured both himself and Ms. Ward during the summer of 2003, and had frequent bouts of uncontrollable behavior. In August 2003, Jeffrey was admitted to Heely House at Parsons, a private residential treatment facility, for psychological evaluations. The results were inconclusive. Ms. Ward was advised that Jeffrey would be discharged on September 2, 2003.

On September 2, 2003, Ms. Ward went to the Greene County Department of Social Services (GCDSS) and asked for a temporary relinquishment of parental rights. When GCDSS refused to accept a temporary relinquishment, Ms. Ward decided that returning Jeffrey to her home would pose too great a risk to his and her safety, and permanently surrendered her parental rights before a Greene County Family Court judge. She subsequently relinquished the monthly subsidy she had been receiving from the State of New Jersey.

In June 2004, she received a petition seeking child support for Jeffrey. A Greene County support magistrate found Ms. Ward liable for child support as the adoptive parent of Jeffrey from the date of surrender, September 2, 2003. Family Court, affirming the findings of fact and final order of support, charged Ms. Ward with “$133.54 weekly child support for Jeffrey commencing February 4, 2005 and $10,015.50 arrears from September 2, 2003 through January 28, 2005 to be paid in $10 weekly increments.” The Appellate Division affirmed.

Ms. Ward contends that she should be exempt from the child support obligation as the single “parent” of a “child born out of wedlock” and that in the alternative GCDSS should be equitably estopped from enforcing the support order. We disagree.

An adoptive parent assumes all of the liabilities of a biological parent (see Betz v Horr, 276 NY 83, 89 [1937]). Upon voluntary surrender, a parent retains the obligation to provide financial support for a child until he or she is adopted or turns 21 (see Family Ct Act § 413). Although the Social Services Law carves out a limited exception from this support requirement for children born out of wedlock to unwed mothers (see Social Services Law § 398 [6] [f]; 18 NYCRR 422.4), this exception does not apply to Ms. Ward. As Jeffrey was not “begotten and born” to her, she does not qualify as the “mother of a child born” out of lawful matrimony (see Family Ct Act § 512). Like the Appellate Division, we acknowledge the apparent harsh result in this highly unusual case, but cannot conclude that the doctrine of estoppel is applicable against the State.

Chief Judge Kaye

(concurring). While I agree with the Court regarding the inapplicability of both Social Services Law § 398 and the doctrine of estoppel, the sad facts of this case prompt me to write separately regarding the failure of the Greene County Department of Social Services (GCDSS) to comply with its regulatory mandate.

A few additional details regarding Jeffrey’s surrender bear mention. As noted in the Court’s decision, on August 6, 2003, Jeffrey was admitted to Heely House at Parsons, a private residential treatment facility, for psychological evaluation. The results of the Heely House evaluation, however, differed from his previous diagnosis, rendering them inconclusive for the purpose of obtaining necessary treatment. Jeffrey remained at Heely House throughout August. Ms. Ward occupied these weeks with trying to secure services in anticipation of Jeffrey’s return, but could not get private help and was unable to find him a position in a school, daycare center or group home.

On August 28, 2003, Ms. Ward met with the Director of Heely House, who told her that Jeffrey would be discharged on September 2, 2003. Ms. Ward requested, on the advice of Jeffrey’s therapist, that he stay for additional testing as without a clear diagnosis it would be difficult for anyone to identify appropriate resources. Her request was refused. The Director said that Jeffrey was no longer “in crisis” — although she admitted that Jeffrey had knocked over a computer, pulled the phone out of the wall and punched a worker earlier in the day — and informed Ms. Ward that if she did not take Jeffrey home, the Director would have no recourse but to call Child Protective Services. She advised her to call 911 if Jeffrey became aggressive.

On September 2, 2003, Ms. Ward went to GCDSS and asked for help. She was told that a meeting with concerned parties would be arranged, but that it would take some time. GCDSS advised that in the meantime she should pick up Jeffrey from Heely House. Ms. Ward feared for Jeffrey’s safety and for her own — he had injured them both during bouts of uncontrollable behavior earlier that summer, and, admittedly, nothing had changed.

Ms. Ward called her attorney, who suggested a “temporary relinquishment” of parental rights. GCDSS refused to accept a temporary relinquishment, stating that she could either pick Jeffrey up or permanently relinquish her parental rights. Although at the close of court GCDSS informed Ms. Ward’s attorney that the agency had a bed for Jeffrey at a residential facility, he remained at Heely House until the additional testing recommended by his therapist (and refused to Ms. Ward) had been completed for GCDSS by the end of October.

Not having been informed that she would be pursued by GCDSS to pay for Jeffrey’s maintenance, in October 2003, Ms. Ward relinquished the $1,000 per month New Jersey subsidy. Eight months later she received a petition from the County seeking child support. Since that time, according to her brief, she has had her wages garnished, her bank account frozen and her vehicle impounded, and she had to sell her home.

Ms. Ward challenged the support order on the grounds that she qualified for the statutory exception, and that the GCDSS should be equitably estopped from enforcing the order. In regard to the latter, she claimed that the GCDSS had unclean hands due to its failure to provide her with support services, and that it was barred by the doctrine of laches because it failed to inform her of her financial obligation or to bring a petition for support until nine months after the surrender, at which time she had already accumulated considerable arrears.

Although Ms. Ward does not fall under the exception for children born out of wedlock, she does assume all of the rights and obligations of a biological parent in every other regard (see Betz v Horr, 276 NY 83, 89 [1937]). She is therefore entitled to receive the protections provided a parent surrendering a child to an authorized agency. Under New York law, a child who is not in foster care may be surrendered to an authorized agency by a written agreement “executed either before a judge of the family court or a surrogate” (18 NYCRR 421.6 Q]; see Social Services Law § 384 [3]). Although neither party referred the Court to the GCDSS’s regulatory responsibility in this regard, 18 NYCRR 421.6 provides that in accepting a surrender, an authorized agency must “advise applicants of the obligation of social service districts to evaluate the obligation of parents of a child born in wedlock, to contribute to the support of the child as long as the child remains a public charge” (18 NYCRR 421.6 [c] [emphasis added]).

GCDSS accepted Jeffrey’s surrender and he has remained in its care and custody. As an authorized agency or as the departmental overseer of Jeffrey’s placement with an authorized agency (see Matter of Ruth “J” v Beaudoin, 55 AD2d 52, 53 [2d Dept 1976] [“petitioner voluntarily signed a surrender instrument. . . to an authorized agency, the Rensselaer County Department of Social Services”]; see also Social Services Law § 371 [10] [a]; Domestic Relations Law § 109 [7]), GCDSS must, under the applicable regulations, inform applicants for surrender of the parental support obligation.

The GCDSS also apparently failed to refer Ms. Ward to mandatory preventive services or to emergency mental health services available through the Office of Mental Hygiene (see Mental Hygiene Law § 9.39). In Mark G. v Sabol (93 NY2d 710, 719 [1999]), the Court recognized the Legislature’s intention to place “increased emphasis on preventive services designed to maintain family relationships” by creating financial incentives for social services districts, and by holding “districts accountable for meeting these standards” (id. at 720).

In keeping with this stated goal, the regulations promulgated by the Department of Social Services provide for mandatory preventive services when “such services are essential to improve family relationships and prevent the placement of a child into foster care” (18 NYCRR 430.9 [c]). Preventive services are considered essential when:

“(a) the child has a diagnosed or diagnosable physical, mental or emotional condition which severely impairs the child’s ability to carry out daily, age-appropriate activities; or
“(b) the child’s behavior, although not dangerous, results in severe management problems in the home, the school or the community;
“(c) the child’s behavior presents a serious danger to other people or to the child himself’ (18 NYCRR 430.9 [c] [5] [i]).

Preventive services include daycare services, specialized rehabilitation services (18 NYCRR 423.2 [b] [4]; [f]) and respite services for families that need provision of temporary care and supervision of children who are otherwise eligible for mandated services under 18 NYCRR 430.9 (see 18 NYCRR 423.2 [b] [19]; 435.3 [a]). The GCDSS apparently did not refer Ms. Ward to any of the mandatory preventive services for which Jeffrey was qualified.

In sum, I conclude on this limited record that GCDSS did not provide Ms. Ward with the notifications and access to support services she needed to make an informed decision. Although this omission was mentioned generally, Ms. Ward did not rely on any of the specific regulatory sections discussed above — so that the agency might have offered a response — nor did she challenge the surrender proceeding itself. We therefore cannot determine whether any such violations may have invalidated her relinquishment of parental rights to Jeffrey or entitled her to some other remedy. Moreover, we are unable to grant Ms. Ward the only remedy she does request — that the agency be estopped from enforcing its support order. The doctrine of estoppel against a governmental entity is limited to “all but the rarest cases” (Matter of Parkview Assoc. v City of New York, 71 NY2d 274, 282 [1988]), circumstances not present here.

This tragic situation should never recur.

Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur; Chief Judge Kaye concurs in an opinion in which Judge Ciparick also concurs.

Order affirmed, without costs, in a memorandum.

      . Ms. Ward was concerned about further intervention from CPS, which had been the recipient of a hotline call and opened a case against her, later deemed unfounded.

      . Ms. Ward testified that had she known of the support obligation, she would have attempted to have her New Jersey subsidy transferred to GCDSS. The record does not reflect that GCDSS made any effort to recover that subsidy, if indeed such relief is available.

      . There is another important regulatory requirement that the parties did not address. When a parent requests surrender of a child, a social services official “must determine, after appropriate consultation, if in such official’s judgment, without regard to the likelihood of placing the child in an adoptive home, whether the best interests of the child will be served by a surrender” (18 NYCRR 421.6 [j]). The record is devoid of any evidence of a best interests analysis conducted prior to Jeffrey’s surrender.

      . Social Services Law § 131 (3) states that “(a)s far as possible families shall be kept together . . . and they shall be provided services to maintain and strengthen family life” (see also Social Services Law § 384-b [1] [a] [iii] [legislative finding that the State’s “first obligation is to help the family with services to prevent its break-up” prior to instituting commitment proceedings]; Social Services Law § 409 [preventive services intended to “avert[ ] an impairment or disruption of a family”]).


text:
    [870 NE2d 680, 839 NYS2d 441]
    The People of the State of New York, Respondent, v Cynthia Long, Appellant.
    Decided June 12, 2007

      APPEARANCES OF COUNSEL

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

      Robert M. Morgenthau, District Attorney, New York City {Tracy L. Conn and Mark Dwyer of counsel), for respondent.
   OPINION OF THE COURT

Memorándum.

The order of the Appellate Division should be affirmed. Supreme Court properly denied defendant’s motion for a Mapp/Dunaway hearing in light of defendant’s failure to raise a factual dispute as to reasonable suspicion for her detention and subsequent arrest. “[T]he sufficiency of defendant’s factual allegations should be evaluated by (1) the face of the pleadings, (2) assessed in conjunction with the context of the motion, and (3) defendant’s access to information” (People v Mendoza, 82 NY2d 415, 426 [1993]; see also People v Lopez, 5 NY3d 753, 754 [2005]). Under the circumstances of this case, defendant had ample access to relevant information regarding the factual predicate for her arrest, including access to the People’s “write-up” of her conduct which the court read to her and her counsel at arraignment. Defendant failed to specifically challenge the identified informant’s basis of knowledge in her suppression motion (cf. People v Bryant, 8 NY3d 530, 534).

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

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


text:
    [870 NE2d 688, 839 NYS2d 448]
    In the Matter of the Claim of Gerald Van Horn, Respondent, v County of Cayuga et al., Appellants. Workers’ Compensation Board, Respondent.
    Decided June 12, 2007

      APPEARANCES OF COUNSEL

      Susan B. Marris, Liverpool, James S. Fiedler and Gregory J. Allen for appellants.

      Andrew Cuomo, Attorney General, Albany (Patrick Barnett-Mulligan, Barbara D. Underwood and Andrea Oser of counsel), for Workers’ Compensation Board, respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, with costs, and case remitted to the Appellate Division, Third Department, with directions to remand to the Workers’ Compensation Board for further proceedings consonant with this Court’s decision in Matter of LaCroix v Syracuse Exec. Air Serv., Inc. (8 NY3d 348 [2007]).

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


text:
    Elizabeth Alden, Appellant, v Onondaga County Sheriff’s Department, Respondent.
    Submitted June 4, 2007;

    decided June 12, 2007
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the orders appealed from do not finally determine the action within the meaning of the Constitution.

Judge Pigott taking no part.


text:
    Michele A. Andrew, Individually and as Parent and Natural Guardian of C.A., an Infant, Appellant, v Soo Hurh, M.D., et al., Respondents, et al., Defendants.
    Submitted April 30, 2007;
    decided June 12, 2007
   Motion for reargument of motion for leave to appeal denied [see 8 NY3d 808].


text:
    In the Matter of Anonymous, for Admission to Practice as an Attorney and Counselor-at-Law, Appellant.
    Submitted May 21, 2007;
    decided June 12, 2007
   Motion for reargument denied [see 8 NY3d 937].

Chief Judge Kaye taking no part.


text:
    Carol Braten, Respondent, v Milton Braten, Appellant.
    Submitted June 4, 2007;
    decided June 12, 2007
   Appeal, insofar as taken from the Appellate Division order that denied the motion to recall and vacate a prior order of that Court, or in the alternative, for leave to appeal to the Court of Appeals, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that such order does not finally determine the action within the meaning of the Constitution; appeal, insofar as taken from the Appellate Division order that dismissed the appeal taken to that Court from the judgment of divorce, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that as to that order no substantial constitutional question is directly involved.


text:
    Michael Diederich, Jr., et al., Appellants, v Rockland County Police Chiefs’ Association, Defendant, and Town of Orangetown et al., Respondents.
    Submitted April 9, 2007;
    decided June 12, 2007
   Motion for reconsideration of this Court’s February 22, 2007 dismissal order denied [see 8 NY3d 875]. Motion for leave to appeal denied.