author: Read, J. Smith, J. (dissenting).

text:
    [881 NE2d 204, 851 NYS2d 108]
    Louis S. Ederer, Respondent, v Steven R. Gursky et al., Appellants.
    Argued November 15, 2007;
    decided December 20, 2007

      POINTS OF COUNSEL

      Dreier LLP, New York City (Ira S. Sacks, Mark S. Lafayette and Melanie J. Sacks of counsel), for appellants.
    I. The order eviscerates the law of limited liability. (Dawson v White & Case, 88 NY2d 666; Lewis v Rosenfeld, 138 F Supp 2d 466; We’re Assoc. Co. v Cohen, Stracher & Bloom, 65 NY2d 148; Schuman v Gallet, Dreyer & Berkey, 180 Misc 2d 485, 280 AD2d 310; 431 Conklin Corp. v Rice, 181 AD2d 716; Matter of Whitley v Klauber, 51 NY2d 555; Lichtman v Estrin, 282 AD2d 326; Connell v Hayden, 83 AD2d 30; Schnapp, Hochberg & Sommers v Nislow, 106 Misc 2d 194; Brito v DILP Corp., 282 AD2d 320.) II. The order failed to properly distinguish between the duty to account and personal liability for debts disclosed by the accounting. (Dawson v White & Case, 88 NY2d 666.) III. The order improperly held that the individual LLP partners may be personally liable for contractual debts of the LLP (Lewis v Rosenfeld, 138 F Supp 2d 466; Regency Found. v Robson, 14 Misc 3d 1209[A], 2006 NY Slip Op 52464[U]; Mantell v Samuelson, 4 Misc 3d 134[A], 2004 NY Slip Op 50765[U]; Matter of Joachim v Flanzig, 3 Misc 3d 371; Institute of Physical Medicine & Rehabilitation v Country-Wide Ins. Co., 193 Misc 2d 803; F & M Precise Metals, Inc. v Goodman, 4 Misc 3d 1023; We’re Assoc. Co. v Cohen, Stracher & Bloom, 65 NY2d 148; Lichtman v Estrin, 282 AD2d 326; Schnapp, Hochberg & Sommers v Nislow, 106 Misc 2d 194; Polymer Trading v CIC-Union Europeenne et Cie, 225 AD2d 482.)

      Cowan, Liebowitz & Latman, P.C., New York City (J. Christopher Jensen and Maryann Penney of counsel), for respondent.
    Defendants-appellants are not shielded by Partnership Law § 26 (b) from their fiduciary duty to account to a withdrawing partner for his interest in the partnership. (Karrick v Hannaman, 168 US 328; Dawson v White & Case, 88 NY2d 666; Shubert v Lawrence, 27 AD2d 292; Adam v Cutner & Rathkofp, 238 AD2d 234; Londin v Carro, Spanbock, Londin, Fass & Geller, 124 Misc 2d 1013; Mudge Rose Guthrie Alexander & Ferdon v Pickett, 11 F Supp 2d 449; We’re Assoc. Co. v Cohen, Stracher & Bloom, 65 NY2d 148; Local Govt. Assistance Corp. v Sales Tax Asset Receivable Corp., 2 NY3d 524; Matter of Board of Educ. of City of N.Y. v Allen, 6 NY2d 127; Conolly v Thuillez, 6 Misc 3d 1007[A], 2005 NY Slip Op 50003[U].)
   OPINION OF THE COURT

Read, J.

This appeal calls upon us to explore the nature and scope of Partnership Law § 26 (b). We hold that this provision does not shield a general partner in a registered limited liability partnership from personal liability for breaches of the partnership’s or partners’ obligations to each other.

I.

The relationship that deteriorated into this acrimonious dispute began promisingly enough in 1998 when plaintiff Louis Ederer affiliated with the law firm of Gursky & Associates, EC., which promptly changed its name to Gursky & Ederer, EC. (the EC). Ederer joined the PC as a salaried, nonequity contract partner, but he had an understanding with defendant Steven R. Gursky, the PC’s sole shareholder, that if their practice developed as anticipated, he would become a full equity partner in about two years’ time.

Right on schedule, in May 2000 Gursky orally agreed to increase Ederer’s annual compensation by about 17% and to make him a 30% shareholder in the PC as of July 1, the beginning of the PC’s fiscal year. Ederer committed to purchase his 30% interest for $600,000, to be paid for by Gursky’s taking an additional $150,000 from the PC’s yearly distributions for each of the following four years. Finally, Gursky agreed that when the PC took on additional partners, his 70% equity interest would be diluted up to 25% before Ederer’s 30% interest was reduced.

In February 2001, the PC became a registered limited liability partnership known as Gursky & Ederer, LLP (the LLP). Significantly, there was no written partnership agreement. The LLP began billing all new legal services, while the PC billed and collected work-in-process and preexisting accounts receivable, and loaned money to the LLP to fund its start-up. In July 2001, the LLP admitted three new partners, defendants Mitchell B. Stern, Martin Feinberg and Michael A. Levine. They collectively acquired a 15% interest in the LLP leaving Gursky with a 55% interest while Ederer retained his 30% interest.

Ederer received his 30% share of the PC’s profits for the fiscal years ending June 30, 2001 and June 30, 2002, less the $150,000 owed to Gursky each year. In 2002, both Ederer and Gursky loaned the PC a portion of their respective shares of the PC’s profits. Sometime prior to June 30, 2003, the LLP assumed these loans in exchange for the furniture, fixtures and equipment that it acquired from the PC.

In July 2002, the LLP increased Ederer’s annual compensation by about 28%. Gursky also agreed to forgive the remaining $300,000 owed by Ederer for the purchase of his 30% equity interest. Ederer characterizes this gesture as an acknowledgment of his major contributions to the firm’s revenue growth; Gursky, as a concession made solely upon Ederer’s assurances that he was committed to remaining with the LLP to assure its long-term success.

In June 2003, Ederer advised Gursky that he was withdrawing as a partner in the LLP and a shareholder in the PC. Ederer chalks up his decision to a severe falling out with Gursky in early 2003 over the representation of a firm client. Gursky retorts that Ederer left because the LLP was cash-strapped and unprofitable, and blames him in no small part for this purported state of affairs.

On June 26, 2003, Ederer entered into a withdrawal agreement with the PC and the LLP which Gursky signed as president of the PC and a partner in the LLP Under this agreement, Ederer agreed to remain a partner in the LLP so as to serve as lead counsel for a trial scheduled to commence in Georgia on June 30, 2003, although he was not obligated to delay his withdrawal from the LLP beyond July 8. In exchange, the LLP agreed to “continue to pay [Ederer his] regular draw and other compensation through the date of [his] withdrawal from the [LLP]”; to have files on which he was working transferred to his new firm upon the client’s request; to give him the opportunity to review his clients’ bills before the LLP asked for payment; and to allow him and/or his representatives (including accountants) access to the LLP’s and PC’s books and records after his withdrawal from the LLP

The PC was dissolved on June 30, 2003, although formal dissolution papers were not filed with the Secretary of State until March 2004. Ederer withdrew from the LLP on or about July 4, 2003 after having helped secure a $2 million verdict in the Georgia trial, which generated a $600,000 contingency fee for the LLP After Ederer’s departure, the LLP continued in business under the name Gursky & Partners, LLP until March 1, 2005, when it ceased operations.

In December 2003, Ederer commenced this action against the PC, the LLI) Gursky & Partners, LLF] and Gursky, Stern, Feinberg and Levine, seeking an accounting and asserting breach of the withdrawal agreement. In his amended verified complaint dated November 1, 2005, Ederer sought an accounting of his interest in the PC (the first cause of action) and the LLP (the second cause of action), and asserted causes of action for breach of contract relating to Gursky’s May 2000 oral agreement to pay him 30% of the PC’s profits (the third cause of action), the June 2003 written agreement to pay him for the two weeks he tried the Georgia case for the LLP (the fourth cause of action), and the unpaid portion of his loan to the PC in 2002 (the fifth cause of action).

In their verified answer dated November 7, 2005, defendants denied the gravamen of Ederer’s complaint; and interposed numerous affirmative defenses as well as counterclaims sounding in breach of fiduciary duty, conversion, tortious interference with contractual relations, fraud and deceit and fraudulent inducement, breach of contract, and unjust enrichment. Defendants also counterclaimed for a declaration that the withdrawal agreement was void because entered into under the duress of Ederer’s alleged threat not to try the case in Georgia.

On November 7, 2005, defendants moved to dismiss the complaint as to defendants Gursky, Stern, Feinberg and Levine; to dismiss the first and second causes of action for an accounting and the third cause of action for breach of contract (the May 2000 oral agreement), or, in the alternative, for summary judgment in favor of all defendants upon these causes of action; and/or for summary judgment in favor of defendants “providing that goodwill should not be valued in connection with an accounting of the affairs of [the PC] and/or [the LLP].” As relevant to this appeal, defendants argued that Ederer’s complaint set forth no cognizable causes of action upon which , relief .could be granted against the individual defendants because Partnership Law § 26 (b) shielded them from any personal liability.

On November 30, 2005, Ederer opposed defendants’ motion and cross-moved for partial summary judgment on liability on his first and second causes of action for an accounting, and his third, fourth and fifth causes of action for breach of contract. He asked Supreme Court to direct that a trial be held on damages with respect to the accounting; and requested summary judgment dismissing defendants’ counterclaims.

Supreme Court determined that Ederer was entitled to an accounting against all defendants because Partnership Law § 26, which places limits on the personal liability of partners in an LLP, applies “to debts of the partnership or the partners to third parties” and “has nothing to do with a partner’s fiduciary obligation to account to his partners for the assets of the partnership.” The trial court also rejected defendants’ argument that “an accounting of Ederer’s interest in [the PC] should not be allowed both because [he] was not a shareholder in the PC., and because the PC. had effectively transferred all of its remaining assets to the LLP as of the date of [his] withdrawal from the firm, rendering the accounting of the PC. duplicative.” The court determined that, “[b]ecause of confusion of the location of the firm’s assets at the time Ederer left the firm, in order for the accounting of [his] interest to be complete, it must necessarily include an accounting of the firm’s assets taken by Gursky from the P.C., as well as an accounting of Ederer’s partnership in the LLP”

In sum, Supreme Court denied defendants’ motions in all respects; granted so much of Ederer’s cross motion as sought to dismiss defendants’ counterclaims for fraud, breach of contract, a declaration that the withdrawal agreement was void, and unjust enrichment, but concluded that there were triable issues of fact precluding dismissal of defendants’ counterclaims for breach of fiduciary duty, conversion, and tortious interference with contractual relations; declared the withdrawal agreement valid and enforceable; granted so much of the cross motion as sought partial summary judgment for an accounting against all defendants; and referred the issue of the accounting of the PC and the LLP to a special referee to hear and report with recommendations, or, upon stipulation of the parties, for the special referee or another referee designated by the parties to determine the issue. The trial court further ordered the motion to be held in abeyance pending receipt of the special referee’s report and recommendations and a motion under CPLR 4403, or receipt of a determination; and directed the remainder of the action to continue. Defendants appealed.

The Appellate Division affirmed Supreme Court’s order on December 5, 2006, concluding that

“Partnership Law § 26 (b), limiting the liability of partners of a limited liability partnership, does not exempt . . . partners from their individual obligations to account to a withdrawing partner under the earlier enacted and unamended Partnership Law § 74 (Rich, Practice Commentaries, McKinney’s Cons Law of NY, Book 38, Partnership Law art 8-B, at 426; compare Partnership Law § 40 [1], [2]; § 71 [d]),” and “does not exempt the individual defendants from liability to plaintiff for breaches of firm-related agreements between them” (Ederer v Gursky, 35 AD3d 166, 166-167 [1st Dept 2006]).

Although individual defendants argued that they had not entered into any agreements with Ederer,

“it appears that the assets of the PC, with which [Ederer] entered into three agreements, were transferred to the successor LLR in which all of the individual defendants were partners. The nature and value of the PC’s assets, and [Ederer’s] interest therein, will be determined in the accounting, and to the extent any of the defendants are in possession of those assets, they may be obliged to pay them over to [Ederer]” (id. at 167).

Defendants subsequently moved in the Appellate Division for leave to appeal to this Court. On March 20, 2007, the Appellate Division granted defendants’ motion and certified the following question to us: “Was the order of Supreme Court, as affirmed by this Court, properly made?” Defendants limited the appeal to this Court to challenging so much of the Appellate Division order as affirmed Supreme Court’s denial of the individual defendants’ motion for summary judgment. To the extent appealed from, as limited by defendants’ brief, we now affirm, answering the certified question in the affirmative.

II.

This appeal comes down to a dispute over the effect of the Legislature’s 1994 amendments to section 26 of the Partnership Law (L 1994, ch 576, § 8). As originally adopted by the Legislature in 1919 (L 1919, ch 408), section 26 was identical to section 15 of the Uniform Partnership Act (UPA), which was drafted by the National Conference of Commissioners on Uniform State Laws and approved by the Conference in 1914. Prior to its amendment in 1994, section 26 provided that

“[a]ll partners are liable
“1. Jointly and severally for everything chargeable to the partnership under sections twenty-four and twenty-five.
“2. Jointly for all other debts and obligations of the partnership; but any partner may enter into a separate obligation to perform a partnership contract.”

Section 24 specifies that

“[w]here, by any wrongful act or omission of any partner acting in the ordinary course of the business of the partnership, or with the authority of his copartners, loss or injury is caused to any person, not being a partner in the partnership, or any penalty is incurred, the partnership is liable therefor to the same extent as the partner so acting or omitting to act.”

Section 25 binds the partnership to “make good the loss”

“1. Where one partner acting within the scope of his apparent authority receives money or property of a third person and misapplies it; and
“2. Where the partnership in the course of its business receives money or property of a third person and the money or property so received is misapplied by any partner while it is in the custody of the partnership.”

Partnership Law § 26, as originally enacted, and its prototype, section 15 of the UPA, have always been understood to mean what they plainly say: general partners are jointly and severally liable to nonpartner creditors for all wrongful acts and breaches of trust committed by their partners in carrying out the partnership’s business, and jointly liable for all other debts to third parties. This proposition follows naturally from the very nature of a partnership, which is based on the law of principal and agent. Just as a principal is liable for the acts of its agents, each partner is personally responsible for the acts of other partners in the ordinary course of the partnership’s business. In addition to this vicarious liability to nonpartner creditors, each partner concomitantly has an obligation to share or bear the losses of the partnership through contribution and indemnification in the context of an ongoing partnership (see Partnership Law § 40 [1], [2] as originally enacted, which is identical to section 18 [a] and [b] of the UPA); and contribution upon dissolution and winding up (see Partnership Law § 65 as originally enacted, which is identical to section 34 of the UPA; Partnership Law § 71 [d] as originally enacted, which is identical to section 40 [d] of the UPA).

The nationwide initiative to create a new business entity combining the flexibility of a partnership without the onus of this traditional vicarious liability originated with a law adopted

“in Texas in 1991, following the savings and loan crisis. At that time, a number of legal and accounting firms faced potentially ruinous judgments arising out of their professional services for banks and thrifts which thereafter failed. Because these professional firms were typically organized as general partnerships, this liability also threatened the personal assets of their constituent partners. The Texas LLP statute protected such partners (at least prospectively) from this unlimited personal exposure without requiring a reorganization of their business structure” (Walker, New York Limited Liability Companies and Partnerships: A Guide to Law and Practice § 14:3, at 344-345 [1 West’s NY Prac Series 2002]; see also Fortney, Seeking Shelter in the Minefield of Unintended Consequences—The Traps of Limited Liability Law Firms, 54 Wash & Lee L Rev 717, 724 [1997] [noting that following the failure of a number of Texas financial institutions, regulators sued these institutions’ professional advisers, including attorneys, for damages far exceeding their law firms’ insurance coverage; and that because “(attorneys could not fathom the possibility of their personal, nonexempt assets being subject to execution for judgment arising from their partners’ malpractice,” they were “spurred (to seek) legislative changes to limit their vicarious liability”]; Keatinge et al., Limited Liability Partnerships: The Next Step in the Evolution of the Unincorporated Business Organization, 51 Bus Law 147, 174 [1995] [“The principal impetus in the enactment of (limited liability partnership) legislation has been the limitation of vicarious liability to third parties”]).

In New York, the Legislature enacted limited liability partnership legislation as a rider to the New York Limited Liability Company Law (see Walker § 14:2, at 344). This legislation eliminated the vicarious liability of a general partner in a registered limited liability partnership by amending section 26 of the Partnership Law, and making conforming changes to sections 40 (1), (2), 65 and 71 (d). Specifically, new section 26 (b) creates an exception to the vicarious liability otherwise applicable by virtue of section 26 (a) (original section 26 [section 15 of the UPA]), by providing that

“[e]xcept as provided by subdivisions (c) and (d) of this section, no partner of a partnership which is a registered limited liability partnership is liable or accountable, directly or indirectly (including by way of indemnification, contribution or otherwise), for any debts, obligations or liabilities of, or chargeable to, the registered limited liability partnership or each other, whether arising in tort, contract or otherwise, which are incurred, created or assumed by such partnership while such partnership is a registered limited liability partnership, solely by reason of being such a partner.”

Section 26 (c) excludes from section 26 (b)’s liability shield “any negligent or wrongful act or misconduct committed by [a partner] or by any person under his or her direct supervision and control while rendering professional services on behalf of [the] registered limited liability partnership.” Section 26 (d) allows partners to opt out from or reduce the reach of section 26 (b)’s protection from vicarious liability.

As one commentator has noted, by “expressly providing] that limited liability includes liability by way of indemnification or contribution,” section 26 (b) precludes the potential for a plaintiff to “attempt an end-run around the liability shield of [section 26 (b)] by first asserting a claim against the [limited liability partnership] and then arguing that the general partnership statute requires the [limited liability partnership] partners to make contributions to the [limited liability partnership]” (Johnson, Limited Liability for Lawyers: General Partners Need Not Apply, 51 Bus Law 85, 110 [1995]). The Legislature further expressed its intention to negate a partner’s indemnification or contribution obligations with respect to liabilities for which the partner was not vicariously liable by making sections 40 (1), (2), 65 and 71 (d) subject to section 26 (b).

Defendants point out that section 26 (b) eliminates the liability of a partner in a limited liability partnership for “any debts” without distinguishing between debts owed to a third party or to the partnership or each other. As a result, they contend, the Legislature did not “leave open to conjecture whether § 26 (b) was intended to cover debts which may be owed by the [limited liability partnership] (or one partner) to other partners.” This argument ignores, however, that the phrase “any debts” is part of a provision (section 26) that has always governed only a partner’s liability to third parties, and, in fact, is part of article 3 of the Partnership Law (“Relations of Partners to Persons Dealing with the Partnership”), not article 4 (“Relations of Partners to One Another”). The logical inference, therefore, is that “any debts” refers to any debts owed a third party, absent very clear legislative direction to the contrary.

Defendants also note that chapter 576’s legislative history illustrates the desire to enact liability protection for partners in limited liability partnerships that is “the same as that accorded to shareholders of a professional corporation organized under the [Business Corporation Law] [and] as that accorded to members of a professional LLC” (Senate Introducer Mem in Support, Bill Jacket, L 1994, ch 576). They point out that “the legislative history of the LLP Act plainly indicates that the Legislature intended to provide an even greater shield of individual liability to partners in LLPs than that enacted by other states as of the date of the legislation.”

These observations are correct, but do not advance defendants’ cause. Chapter 576 does, in fact, afford limited liability partners the same protection from third-party claims as New York law provides shareholders in professional corporations or professional limited liability companies. And unlike New York, most states “have adopted a partial liability shield protecting the partners only from vicarious personal liability for all partnership obligations arising from negligence, wrongful acts or misconduct, whether characterized as tort, contract or otherwise, committed while the partnership is an LLP” (see Prefatory Note Addendum to Uniform Partnership Act [1997] [explaining that RUPA, by contrast, “provid(es) for a corporate-styled liability shield which protects partners from vicarious personal liability for all partnership obligations incurred while a partnership is a limited liability partnership”]; see also Walker § 14:5, at 346 [“The type of LLP generally permitted by the states (other than Minnesota and New York) . . . offers less insulation against personal liability than many other types of organization”]). Nowhere in the voluminous commentary on limited liability partnerships has anyone suggested that New York (or any other state) has adopted a statute expanding the concept of limited liability in the way asserted by defendants.

Next, defendants make two arguments in their attempt to reconcile their interpretation of section 26 (b) with Partnership Law § 74, which gives a partner “[t]he right to an account of his interest ... as against the winding up partners or the surviving partners or the person or partnership continuing the business, at the date of dissolution, in the absence of agreement to the contrary” (see also Partnership Law § 43, which is identical to section 21 of the UPA [see Uniform Partnership Act (1914) § 21, Comment, 6 ULA (part II) 194 (indicating that the words “and hold as trustee for the partnership any profits” were meant to “indicate clearly that the partnership can claim as their own any property or money that can be traced” in a situation where a specific sum of partnership money or property is in the hands of an insolvent partner)]). First, they argue that their fiduciary duty as partners to account to one another “is not the same as personal liability for the debts disclosed by the accounting.” But the remedy of accounting is restitutionary by definition (see Eichengrun, Remedying the Remedy of Accounting, 60 Ind LJ 463, 463 [1984-1985] [in an accounting, “(t)he plaintiff must establish some basis for the obligation to account, the defendant is ordered to account, and the plaintiff then gets an order directing payment of the sum of money found due”]; see also Belsheim, The Old Action of Account, 45 Harv L Rev 466 [1931-1932]). Second, defendants claim that a partner is only personally liable for debts disclosed in an accounting which are attributable to that partner’s own torts or wrongful conduct or supervisory lapses, as excluded by Partnership Law § 26 (c) from the protection of section 26 (b). If the Legislature had intended to qualify section 74 in this manner, however, it surely would have explicitly made section 74 subject to sections 26 (b) and/or 26 (c). It did not do so for the same reason that defendants’ arguments fail generally: section 26 (b) only addresses a partner’s vicarious liability for partnership obligations.

In closing, we emphasize that the law of partnerships contemplates a written agreement among partners specifying the terms of their relationship. The Partnership Law’s provisions are, for the most part, default requirements that come into play in the absence of an agreement. For example, the right to an accounting exists, “absen[t an] agreement to the contrary” (Partnership Law § 74). Partners might agree, as among themselves, to limit the right to contribution or indemnification or to exclude it altogether. In this case, however, there was no written partnership agreement; therefore, the provisions of the Partnership Law govern.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be affirmed, with costs, and the certified question should be answered in the affirmative.

Smith, J. (dissenting).

The text of Partnership Law § 26 (b) seems clear to me: “no partner of a partnership which is a registered limited liability partnership is liable . . . for any debts, obligations or liabilities of . . . the registered limited liability partnership . . . whether arising in tort, contract or otherwise.” The statute contains two specific exceptions, applicable when a partner acts wrongfully or when partners agree to vary the liability scheme (Partnership Law § 26 [c], [d]), but there is no exception for liabilities to former partners claiming a share of the partnership’s net assets. We should not create an exception that the Legislature did not (see We're Assoc. Co. v Cohen, Strocher & Bloom, 65 NY2d 148, 151 [1985]). The majority draws a distinction between liability to “third parties” and liabilities to former partners (majority op at 524)—but a former partner is a third party where the partnership is concerned, and there is no good reason to treat him more favorably than any other third party.

No one suggests that section 26 (b) exempts partners from any of their fiduciary duties; if a partner has diverted partnership funds to himself, or otherwise received more than his fair share, he will not escape liability and his former partners, as well as his existing partners, will be made whole. The issue is whether a former partner claiming his partnership share may reach the personal assets of partners who are no more blameworthy, and have no more been unjustly enriched, than he has.

I can think of two situations in which this issue may be important. First, without any fault by any partner, the business of the partnership may go badly after a partner withdraws from the firm but before he is paid his share, leaving the firm without enough assets to satisfy his claim. (This is apparently what happened here.) Secondly, the partnership’s insolvency may result from the fault of a partner who is himself insolvent; in that case, the question is whether the former partner can proceed against the innocent remaining partners.

In the first case, there is no apparent reason why a former partner should be allowed to collect his debt when other third-party creditors may not; in fact, the Partnership Law provides in another context that debts to nonpartners have a preferred status (Partnership Law § 71 [b]). In the second case, the rule adopted by the majority can produce even more clearly perverse results. Take an extreme example: Suppose there are three partners, two with a 49% interest each and one with a 2% interest. One of the 49% partners withdraws, and is entitled to 49% of the firm’s assets. Before he can be paid, however, it is found that the other 49% partner has stolen all of those assets, lost them at a casino and gone bankrupt. Why should the innocent 2% partner have to make good the former partner’s large loss?

If the Gursky & Ederer firm had remained a professional corporation, instead of turning itself into a limited liability partnership, the result in this case would not be in question: the individual shareholders of the corporation would not be liable for its obligation to Ederer. I do not see why the partners of an LLP should have an obligation that the shareholders of a PC do not, and I therefore dissent.

Judges Ciparick, Graffeo, Pigott and Jones concur with Judge Read; Judge Smith dissents in a separate opinion in which Chief Judge Kaye concurs.

Order, insofar as appealed from, affirmed, etc.

[Next page is 801.]

      . We recognize that defendants strenuously deny that Ederer was ever a shareholder in the PC. They characterize the $600,000 as a payment to he made by Ederer in exchange for the right to receive 30% of the PC’s profits as a bonus going forward, which was not in any way “attributable to goodwill associated with” the PC. For his part, Ederer has consistently taken the position that purchasing a 30% interest in the PC’s future profits was effectively the same thing as purchasing an interest in all the PC’s assets, “including most importantly” its goodwill. In any event, Supreme Court determined that Ederer, in fact, became a 30% equity shareholder in the PC in 2000. The Appellate Division affirmed Supreme Court without disturbing this fáctual finding, which, having support in the record, is beyond our review (see e.g. Cannon v Putnam, 76 NY2d 644, 651 [1990]).

      . The UPA (1914), which governed general partnerships and limited partnerships except where the limited partnership statute was inconsistent, was adopted in every state except Louisiana, and was “the subject of remarkably few amendments in those states” (see Prefatory Note to Uniform Partnership Act [1997]). The Conference did not set out to revise the UPA until the 1980s, resulting in a Revised Uniform Partnership Act (RUPA), adopted in 1992, which was amended and restyled the Uniform Partnership Act (1993). Subsequently, another round of changes was incorporated, and the Conference adopted the Uniform Partnership Act (1994). Finally, the Conference added provisions “authorizing the creation of a new form of general partnership called a limited liability partnership (LLP),” which became part of the Uniform Partnership Act (1997) (also referred to as RUPA) (Prefatory Note Addendum). By that time, more than 40 states, including New York, had already amended their general partnership statutes to add limited liability partnership provisions (id.).


source: Caselaw Access Project

license: Public Domain

text:
    [874 NE2d 720, 842 NYS2d 756]
    Patricia Nonnon, Individually and as Executrix of Kerri Nonnon, Deceased, et al., Respondents, v City of New York, Appellant. (And Other Actions.)
    Argued June 5, 2007;
    decided June 27, 2007

      APPEARANCES OF COUNSEL

      Michael A. Cardozo, Corporation Counsel, New York City (Elizabeth S. Natrella, Leonard Koerner and Christopher G. King of counsel), for appellant.

      Mauro Goldberg & Lilling LLP, Great Neck (Barbara DeCrow Goldberg, Kenneth Mauro and Richard J. Montes of counsel), for respondents.

      Herzfeld & Rubin, P.C., New York City (Michael Hoenig and Miriam Skolnik of counsel), and Hugh F. Young, Jr., Reston, Virginia, for Product Liability Advisory Council, Inc., amicus curiae.

      Atlantic Legal Foundation, New York City (Martin S. Kaufman of counsel), for Marcia Angelí and others, amici curiae.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

This litigation concerns the 81-acre Pelham Bay Landfill, owned and operated by the City of New York, and officially closed in 1978 after allegations of illegal dumping of pollutants. In 1982, the City determined that the landfill’s surface water and groundwater contained contaminants that exceeded state standards, and in 1983 the facility was listed as an inactive hazardous waste disposal site. Plaintiffs are children and adults (and their families or executors) who live or lived within one mile of the landfill and developed acute lymphoid leukemia or Hodgkin’s disease. Between 1991 and 1993, they brought nine lawsuits (since consolidated) alleging that the City’s negligence in creating and maintaining the landfill resulted in elevated levels of toxic substances that caused their injuries or deaths.

On September 29, 2000, the City moved both pursuant to CPLR 3211 and 3212 to dismiss several claims as barred by the statute of limitations, and pursuant to CPLR 3211 (a) (7) to dismiss the complaints as failing to state a cause of action. The City asserted that its 3211 (a) (7) motion was based on plaintiffs’ “inability to assert a causal connection between defendant’s conduct and the many injuries from which they purportedly suffer.”

Both the City and plaintiffs submitted expert affidavits addressed to causation. The trial court denied the City’s CPLR 3211 (a) (7) motion and the Appellate Division, with two justices dissenting, modified. We now affirm solely on procedural grounds.

On a CPLR 3211 motion to dismiss, the court will “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v Martinez, 84 NY2d 83, 87-88 [1994]). While affidavits may be considered, if the motion has not been converted to a CPLR 3212 motion for summary judgment, they are generally intended to remedy pleading defects and not to offer evidentiary support for properly pleaded claims (see Rovello v Orofino Realty Co., 40 NY2d 633, 635-636 [1976]). By contrast, a motion for summary judgment, which seeks a determination that there are no material issues of fact for trial, assumes a complete evidentiary record.

As the City’s motion was never converted to one for summary judgment, plaintiffs were not put on notice of their obligation to make a complete record and to come forward with any evidence that could possibly be considered (see CPLR 3211 [c]; Mihlovan v Grozavu, 72 NY2d 506 [1988]; see also Siegel, NY Prac § 270 [4th ed 2007] [the “notice requirement . . . offers the parties an opportunity to submit everything they’ve got”]). Here, plaintiffs suggest that due to the equivocal procedural posture of this case, they have not had the opportunity to submit all of their evidence relevant to a determination of causation (see Parker v Mobil Oil Corp., 7 NY3d 434, 448 [2006]). Accordingly, the City is not now entitled to dismissal of plaintiffs’ complaints for failure to state a cause of action.

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

Order affirmed, etc.

       The majority modified Supreme Court’s order by granting the City’s motion to dismiss Christopher Angelilli’s claim on statute of limitations grounds, with leave to replead (see CPLR 214-c [4]).


text:
    [874 NE2d 722, 842 NYS2d 758]
    In the Matter of Simone D., Appellant. Kathleen Iverson, Respondent.
    Argued May 31, 2007;
    decided June 27, 2007
    APPEARANCES OF COUNSEL

      Mental Hygiene Legal Service, Second Judicial Department, Mineola (Kim L. Darrow, Sidney Hirschfeld and Dennis B. Feld of counsel), for appellant.

      Andrew M. Cuomo, Attorney General, New York City (Patrick J. Walsh, Barbara D. Underwood and Michael S. Belohlavek of counsel), for respondent.

      New York Lawyers for the Public Interest, New York City (John A. Gresham of counsel), for Disability Advocates, Inc. and others, amici curiae.
   OPINION OF THE COURT

Memorandum.

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

Petitioner, the acting director of Creedmoor Psychiatric Center, sought permission to administer electroconvulsive therapy to a patient at the center without the patient’s consent. Supreme Court granted the application, and the Appellate Division affirmed, two Justices dissenting. The patient appeals to us as of right, pursuant to CPLR 5601 (a).

The sole ground for the patient’s appeal is that Supreme Court improperly limited the patient’s cross-examination of the State’s psychiatric expert witness. We agree with the Appellate Division majority that, when the cross-examination is viewed as a whole, the record shows no abuse of discretion. While specific evidentiary rulings can be debated, the patient’s attorney was allowed to and did make clear to the court all the claimed weaknesses in the psychiatrist’s testimony. The record does not show that Supreme Court excluded any evidence material to the only disputed issue: whether the proposed treatment was narrowly tailored to give substantive effect to the patient’s liberty interest, taking into consideration all relevant circumstances (Rivers v Katz, 67 NY2d 485, 497-498 [1986]).

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

Order affirmed, without costs, in a memorandum.


text:
    [873 NE2d 267, 841 NYS2d 223]
    The People of the State of New York, Respondent, v Duane J. Charache, Appellant.
    Argued June 5, 2007;
    decided June 27, 2007

      APPEARANCES OF COUNSEL

      Gary A. Horton, Public Defender, Batavia (Bridget L. Field of counsel), for appellant.

      Lawrence Friedman, District Attorney, Batavia (William G. Zickl of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Following a jury trial, defendant was convicted of one count each of first degree unlawful dealing with a child, first degree sexual abuse and endangering the welfare of a child. In anticipation of his release from prison, the Board of Examiners of Sex Offenders (Board) filed a Risk Assessment Instrument (RAI) that assessed defendant 125 points—a presumptive level three sex offender classification. The Board, however, recommended a downward departure to a level two because defendant completed high school and had no prior criminal history.

County Court agreed with defendant’s sole challenge to the RAI scoring—that 10 points should be deducted under category IV (release environment) because he was to be released with supervision. Thereafter, the People opposed the Board’s downward departure recommendation. The court agreed with the People’s conclusion that the Board’s rationale for departure had “little or no import” on defendant’s actual risk as reflected in the RAI. Thus, the court adhered to a level three classification based on the adjusted 115 points.

On appeal, defendant argued, for the first time, that the People failed to provide him with the statutory 10-day notice of their intent to seek a risk level classification different from the Board’s recommendation (see Correction Law § 168-n [3]). We agree with the Appellate Division, however, that defendant failed to preserve this contention for review, contrary to the holdings of People v Davila (299 AD2d 573 [3d Dept 2002]) and People v MacNeil (283 AD2d 835 [3d Dept 2001]).

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

Order affirmed, without costs, in a memorandum.


text:
    Allied-Lynn Associates, Inc., Respondent, v Alex Bro., LLC, Appellant, et al., Defendants.
    Submitted April 30, 2007;
    decided June 27, 2007
    Reported below, 38 AD3d 1198.
   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:
    Andrew Britt et al., Appellants, v Pharmacologic Pet Services, Inc., Respondent, et al., Defendant.
    Submitted May 7, 2007;
    decided June 27, 2007
    Reported below, 36 AD3d 1039.
   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:
    Certain Underwriters at Lloyd’s, London, et al., Plaintiffs, v Foster Wheeler Corporation, Respondent, and Affiliated FM Insurance Company et al., Appellants, et al., Defendants.
    Submitted June 25, 2007;
    decided June 27, 2007
    Reported below, 36 AD3d 17.
   Motion by Honeywell International Inc. for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    Certain Underwriters at Lloyd’s, London, et al., Plaintiffs, v Foster Wheeler Corporation, Respondent, and Affiliated FM Insurance Company et al., Appellants, et al., Defendants.
    Submitted June 25, 2007;
    decided June 27, 2007
    Reported below, 36 AD3d 17.
   Motion by Complex Insurance Claims Litigation Association for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Castalia Ortega et al., Appellants, v City of New York, Respondent.
    Submitted June 25, 2007;
    decided June 27, 2007
    Reported below, 35 AD3d 422.
   Motion by County of Orange 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 on or before July 31, 2007.


text:
    Castalia Ortega et al., Appellants, v City of New York, Respondent.
    Submitted June 25, 2007;
    decided June 27, 2007
    Reported below, 35 AD3d 422.
   Motion by New York State Conference of Mayors and Municipal Officials for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Four copies of the brief must be filed within seven days.


text:
    The People of the State of New York, Respondent, v Arturo Flores, Appellant.
    Submitted May 7, 2007;
    decided June 27, 2007
    Reported below, 24 AD3d 568.
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 dismissed as untimely.


text:
    The People of the State of New York, Respondent, v John Mingo, Appellant.
    Submitted June 25, 2007;
    decided June 27, 2007
    Reported below, 37 AD3d 854.
   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:
    [872 NE2d 858, 840 NYS2d 746]
    In the Matter of County of Westchester et al., Appellants, v Board of Trustees of State University of New York, Respondent.
    Argued June 5, 2007;
    decided June 28, 2007

      APPEARANCES OF COUNSEL

      Charlene M. Indelicato, County Attorney, White Plains (Mary Lynn Nicolas-Brewster of counsel), for Westchester County, appellant.

      Cadwalader, Wickersham & Taft, LLP, New York City (Kathy H. Chin of counsel), for New York State Association of Counties, appellant.

      Andrew M. Cuomo, Attorney General, Albany (Nancy A. Spiegel, Barbara D. Underwood, Daniel Smirlock and Peter H. Schiff of counsel), for respondent.

      Ingerman Smith, LLP, Hauppauge (John H. Gross and Susan E. Fine of counsel), for Board of Trustees of Nassau Community College, amicus curiae.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, without costs, to declare that the regulations at issue are not inconsistent with Education Law § 6304 (6), and, as so modified, affirmed.

Petitioners, the County of Westchester—the local sponsor of Westchester Community College—and the New York State Association of Counties, in a combined CPLR article 78 proceeding/ declaratory judgment action, seek to annul certain amendments to regulations promulgated by respondent, the Board of Trustees of the State University of New York, pursuant to the state Education Law.

The amendments at issue, adopted in 2003, changed the regulations to provide that a local sponsor shall approve the “budget total,” rather than the “total budget,” of a community college (see 8 NYCRR 600.2 [a]; see also 8 NYCRR 602.3 [b]), and removed a requirement that transfers of appropriations within the college’s operating budget be subject to approval of the sponsor (see 8 NYCRR 602.9). According to respondent, these changes were designed to conform with the 1988 amendments to Education Law § 6304 (6) that allowed greater fiscal independence for community colleges. The effect of the amendments to the regulations was to eliminate a local sponsor’s authority to veto line-item appropriations in a community college budget as proposed by the college’s board of trustees, and to permit college boards of trustees to transfer appropriations among budget items without the local sponsor’s approval.

Petitioners claim that the 2003 amendments to the regulations are inconsistent with the language of Education Law § 6304 (6), as amended in 1988. This statute defines a local sponsor’s obligations with respect to the college’s finances and the share of the college’s costs it must provide; it does not govern the college’s budget approval process. Memoranda and letters of support for the 1988 amendments evince the Legislature’s intent to grant community colleges greater flexibility and autonomy in the budget process by increasing their independence from the local sponsors (see Bill Jacket, L 1988, ch 614).

Despite the 1988 legislation and the 2003 amendments to the regulations, the local sponsor’s oversight of the college budget process remains significant. The sponsor retains the right to increase or decrease the amount of its contribution, and enjoys substantial representation on the college’s ten-member board of trustees, half of whom are appointed by the local sponsor, one of whom may remain a part of the county’s legislative body while on the board (see Education Law § 6306 [1]). In addition, the local sponsor has the authority to require periodic audits and reports from the college as it deems appropriate (see Education Law § 6304 [6]). Most importantly, the elimination of a line-item veto does not alter the requirement of Education Law § 6306 (2) that college boards of tmstees “submit [the college’s] budget for approval by the local legislative body or board.” Nor does the authorization for college trustees to make transfers of appropriations within the budget necessarily conflict with the requirement of Education Law § 6304 (6) that expenditures of funds by colleges be “subject to the terms and conditions of such appropriations [by the sponsor for maintenance of the college] appearing in such budget.”

Thus, on their face, the 2003 amendments to the regulations, although reducing the local sponsor’s role in the budget approval process, “are not inconsistent with the statutory-language or its underlying purposes” (Matter of General Elec. Capital Corp. v New York State Div. of Tax Appeals, Tax Appeals Trib., 2 NY3d 249, 254 [2004]), and have “a rational basis [that] is not unreasonable, arbitrary, capricious or contrary to the statute under which it was promulgated” (Kuppersmith v Dowling, 93 NY2d 90, 96 [1999]).

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

Order modified, etc.

       Education Law § 6304 (6) provides as follows: “The local legislative body or board, or other appropriate governing agency, other than a community college regional board of trustees, shall provide the local sponsor’s share of the community college operating and capital costs in conformance with such sponsor’s annual budgetary appropriation, and shall direct that payment of all appropriations for maintenance of the college be made to the board of trustees of the college for expenditure by the board, subject to the terms and conditions of such appropriations appearing in such budget. . . .”


text:
    [872 NE2d 1194, 840 NYS2d 888]
    Howard Leder, as Preliminary Executor of Abraham Warsaski, Deceased, Proponent, v Marshall Spiegel, Appellant, et al., Objectant. Joanne Rowland, Esq., Respondent.
    Argued May 29, 2007;
    decided June 28, 2007

      APPEARANCES OF COUNSEL

      Jeffrey A. Barr, New York City, for appellant.

      Leo Fox, New York City, for respondent.
   OPINION OF THE COURT

Memorandum.

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

After unsuccessfully representing two objectants at a will contest trial in Surrogate’s Court, respondent attorney petitioned the same court for legal fees. In their answer, objectants counterclaimed for legal malpractice, arguing that, but for respondent’s negligent representation, they would have accepted a $108,000 settlement. In particular, objectants cited respondent’s failure to anticipate that Surrogate’s Court would not admit certain evidence. Respondent moved pursuant to CPLR 3211 (a) (7) for an order dismissing objectants’ counterclaim.

Surrogate’s Court dismissed objectants’ counterclaim and awarded respondent her legal fees. In a 3-2 decision, the Appellate Division affirmed. Objectant Marshall Spiegel appeals as of right, and we now affirm.

“In order to sustain a claim for legal malpractice, a plaintiff must establish both that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to a plaintiff, and that the plaintiff would have succeeded on the merits of the underlying action ‘but for’ the attorney’s negligence” (Am-Base Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007] [internal citations omitted]).

Under the circumstances of this case, objectant’s allegation regarding respondent’s failure to anticipate the court’s evidentiary rulings—even if accepted as true—does not establish negligence. Thus, objectants did not allege a prima facie case of legal malpractice and the courts below properly dismissed the counterclaim. Objectant’s remaining contentions also lack merit.

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

Order affirmed, with costs, in a memorandum.


text:
    Rachel Ehrenfeld, Appellant, v Khalid Salim Bin Mahfouz, Respondent.
    Submitted June 18, 2007;
    decided June 28, 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 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, Pigott and Jones. Taking no part: Judge Smith.


text:
    In the Matter of Mario Lugo, Appellant, v New York City Housing Authority, Respondent.
    Submitted May 21, 2007;
    decided June 28, 2007
    Reported below, 2006 NY Slip Op 68880(U).
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for a stay dismissed as academic. Motion for poor person relief dismissed as academic.


text:
    Monroe Yale Mann, Respondent, v Bernard Abel et al., Appellants, et al., Defendants.
    Submitted June 4, 2007;
    decided June 28, 2007
    Reported below, 37 AD3d 778.
   Motion by Advance Publications, Inc., et al. for leave to file a brief amici curiae on the Court’s examination of its subject matter jurisdiction of the appeal herein granted and the proposed brief is accepted as filed.


text:
    In the Matter of the Estate of Kathyrn B. McGuire, Also Known as Katherine B. McGuire McCann, Deceased. Chester McGuire, Respondent; Philip McGuire et al., Appellants.
    Submitted May 21, 2007;
    decided June 28, 2007
    Reported below, 34 AD3d 589; 2007 NY Slip Op 65897(U).
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument or, in the alternative, leave to appeal to the Court of Appeals, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    The Promenade et al., Respondents, v Schindler Elevator Corporation et al., Defendants. The Glick Organization et al., Third-Party Plaintiffs, v A-Wachsberger Roofing & Sheet Metal Work Inc. et al., Third-Party Defendants, and De-Con Mechanical Corp., Third-Party Defendant-Appellant.
    Submitted May 21, 2007;
    decided June 28, 2007
    Reported below, 39 AD3d 221.
   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:
    [872 NE2d 1196, 840 NYS2d 890]
    The People of the State of New York, Respondent, v Frank LaPetina, Appellant.
    Argued June 7, 2007;
    decided July 2, 2007
    APPEARANCES OF COUNSEL

      White & White, New York City (Brendan White and Diarmuid White of counsel), for appellant.

      Richard A. Brown, District Attorney, Kew Gardens (Linda Cantoni and John M. Castellano of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

After a jury trial, defendant was convicted of burglary in the first degree, two counts of assault in the third degree and endangering the welfare of a child. The Appellate Division reversed the assault convictions, concluding that a retrial was warranted due to the trial court’s denial of defendant’s request for a self-defense charge (Penal Law § 35.15). With respect to the burglary conviction, the Appellate Division reduced the offense to burglary in the second degree due to a deficiency in the indictment. But the Court rejected defendant’s claim that he was entitled to a new trial on the burglary charge because the trial court failed to give a “choice of evils” instruction (Penal Law § 35.05).

In this Court, defendant asserts that he was entitled to a Penal Law § 35.05 charge for the burglary offense. This contention is not preserved for review in this Court because defendant failed to alert the trial court that, in addition to the Penal Law § 35.15 self-defense instruction discussed during the charge conference, he was also seeking a “choice of evils” instruction (see Penal Law § 35.05; People v Craig, 78 NY2d 616 [1991]). Defendant’s alternative claim that, having reversed his assault convictions, the Appellate Division should have reversed the burglary conviction because it was “contaminated” by the charging error associated with the assault counts is without merit.

We further reject defendant’s argument that the trial court erred in precluding admission of photographs of an injury suffered by a person who was not present during the altercation involving defendant. The court did not abuse its discretion in holding that the proffered evidence was collateral and that its prejudicial effect would outweigh any potential probative value (see People v Pavao, 59 NY2d 282 [1983]).

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

Order affirmed in a memorandum.


text:
    [872 NE2d 868, 840 NYS2d 755]
    The People of the State of New York, Respondent, v Joshua Liner, Appellant.
    Argued June 6, 2007;
    decided July 2, 2007
    APPEARANCES OF COUNSEL

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

      Robert M. Morgenthau, District Attorney, New York City (Gary S. Snitow and David M. Cohn of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted, after a jury trial, of the crimes of burglary in the third degree, petit larceny, and two counts of criminal possession of a weapon in the third degree for stealing merchandise at a Duane Reade store. At trial, the People introduced into evidence two trespass notices revoking defendant’s privilege to enter Duane Reade stores. Because defendant failed to assert at the time of the trial that the admission of the notices violated his right of confrontation, the issue is not preserved for our review (see generally People v Gray, 86 NY2d 10 [1995]).

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 June 11, 2007;
    decided July 2, 2007
    Reported below, 37 AD3d 1047.
   Motion for reconsideration of this Court’s May 8, 2007 dismissal order denied [see 8 NY3d 975].


text:
    In the Matter of Liquidation of American Druggists’ Insurance Company. Superintendent of Insurance of the State of New York, Respondent, v Denis D. Kenny, Appellant.
    Submitted March 12, 2007;
    decided July 2, 2007
    Reported below, 15 AD3d 268.
   Motion for leave to appeal from the February 5, 2007 “Stipulation of Discontinuance with Prejudice,” dismissed upon the ground that that paper does not finally determine the action within the meaning of the Constitution; the December 6, 2006 judgment of Supreme Court is the final paper in this action and a motion for leave to appeal from that judgment , would be untimely (see CPLR 5513 [b]).


text:
    In the Matter of Carl A.G., Appellant, v Myriam L.G., Respondent.
    Submitted May 29, 2007;
    decided July 2, 2007
    Reported below, 39 AD3d 1232.
   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 Citizens Against Sprawl-Mart, by Leo F. Alcuri, et al., Appellants, v City of Niagara Falls et al., Respondents.
    Submitted May 14, 2007;
    decided July 2, 2007
    Reported below, 35 AD3d 1190.
   Motion, insofar as it seeks leave to appeal as against Bender-son Development Company, Inc. and Randall Benderson 1993-1 Trust, dismissed as untimely (see CPLR 5513 [b]; 2103 [b] [6]); motion, insofar as it seeks leave to appeal as against the City of Niagara Falls, the City Council of Niagara Falls, the Planning Board of the City of Niagara Falls and the Zoning Board of Appeals of the City of Niagara Falls, denied.


text:
    In the Matter of Disney Enterprises, Inc., et al., Appellants, v Tax Appeals Tribunal of the State of New York et al., Respondents.
    Submitted May 21, 2007;
    decided July 2, 2007
    Reported below, 40 AD3d 49.
   Motion by Council on State Taxation for leave to file a letter amicus curiae on the Court of Appeals’ examination of its subject matter jurisdiction of the appeal herein granted and the letter is accepted as filed.


text:
    In the Matter of Edmona H. et al. Corporation Counsel of the City of New York et al., Respondents; Harry Edmond R., Appellant.
    Submitted May 7, 2007;
    decided July 2, 2007
    Reported below, 2007 NY Slip Op 65250(U).
   Motion for leave to appeal dismissed upon the ground that appellant is not a party to this proceeding.


text:
    John Festa et al., Appellants, v New York City Department of Consumer Affairs et al., Respondents.
    Submitted June 25, 2007;
    decided July 2, 2007
    Reported below, 37 AD3d 343.
   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 the Estate of Joan Marie Fotiades, Deceased. Gregory Fotiades et al., Respondents; Daphne Fotiades, Appellant.
    Submitted May 21, 2007;
    decided July 2, 2007
    Reported below, 38 AD3d 892.
   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 Elroy Hendrix, Appellant, v Glenn S. Goord, as Commissioner of Correctional Services, Respondent.
    Submitted May 29, 2007;
    decided July 2, 2007
    Reported below, 36 AD3d 1200.
   Motion to vacate this Court’s May 1, 2007 order dismissing the appeal for want of prosecution granted and appeal reinstated [see 8 NY3d 980]. On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved.


text:
    Household Finance Realty Corporation of New York, Respondent, v Peter Gonzalez et al., Appellants, et al., Defendants.
    Submitted June 25, 2007;
    decided July 2, 2007
    Reported below, 39 AD3d 1138.
   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:
    Maria LaRocca, Respondent, v Salvatore P. DeRicco, Appellant.
    Submitted June 11, 2007;
    decided July 2, 2007
    Reported below, 39 AD3d 486.
   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 Malcolm G., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Submitted June 25, 2007;
    decided July 2, 2007
    Reported below, 38 AD3d 662.
   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 Shane Peek, Appellant, v Robert Dennison, as Chairman of New York State Division of Parole, Respondent.
    Submitted May 29, 2007;
    decided July 2, 2007
    Reported below, 39 AD3d 1239.
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York, Respondent, v Arthur Bryant, Appellant.
    Submitted May 29, 2007;
    decided July 2, 2007
    Reported below, 30 AD3d 1131.
   Motion to amend remittitur denied [see 8 NY3d 530].


text:
    Riverside Capital Advisors, Inc., Appellant, and Winchester Global Trust Company Limited, Respondent, v First Secured Capital Corp. et al., Appellants, et al., Defendants. Thomas B. Donovan et al., Nonparty Appellants.
    Submitted May 7, 2007;
    decided July 2, 2007
    Reported below, 28 AD3d 452.
   Motion for leave to appeal dismissed upon the ground that the “Second Amended Judgment,” dated and entered February 8, 2007, sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Gurdhian Singh, Appellant, v Jon Friedson et al., Respondents.
    Submitted June 11, 2007;
    decided July 2, 2007
    Reported below, 36 AD3d 605.
   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 Susan Spencer, Respondent, v James Spencer, Appellant.
    Submitted May 7, 2007;
    decided July 2, 2007
    Reported below, 35 AD3d 980.
   Motion by the American Academy of Matrimonial Lawyers, New York Chapter, 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:
    In the Matter of Maria E. Torres, Appellant. Commissioner of Labor, Respondent.
    Submitted June 11, 2007;
    decided July 2, 2007
    Reported below, 32 AD3d 1093.
   Motion for reargument of motion for leave to appeal denied [see 8 NY3d 811].


text:
    In the Matter of Toucans, LLC, Appellant, v New York State Liquor Authority, Respondent.
    Submitted April 23, 2007;
    decided July 2, 2007
    Reported below, 37 AD3d 1052.
   Motion by Empire State Restaurant & Tavern 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:
    In the Matter of Raymond M. Weinstein et al., Appellants, v City of New York Department of Housing Preservation and Development et al., Respondents.
    Submitted June 25, 2007;
    decided July 2, 2007
    Reported below, 39 AD3d 764.
   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 John J. Keenan et al., Respondents, v Chemung County Board of Elections, Respondent, and Nanette M. Moss, Appellant.
    Submitted August 29, 2007;
    decided August 29, 2007
    Reported below, 43 AD3d 623.
   Motion for leave to file an affidavit amicus curiae on the motion for leave to appeal herein granted and the affidavit is accepted as filed.


text:
    [874 NE2d 727, 842 NYS2d 763]
    In the Matter of Jerome C. Ellis.
    Decided September 4, 2007
   OPINION OF THE COURT

On the Court’s own motion, it is determined that Honorable Jerome C. Ellis is suspended, with pay, effective immediately, from the office of Justice of the Leon Town Court, Cattaraugus County, pending disposition of his request for review of a determination by the State Commission on Judicial Conduct.

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


text:
    Byblos Bank Europe, S.A., Respondent, v Sekerbank Turk Anonym Syrketi, Appellant.
    Submitted July 9, 2007;
    decided September 4, 2007
    Reported below, 40 AD3d 497.
   Motion for leave to cross appeal dismissed upon the ground that Sekerbank Turk Anonym Syrketi is not a party aggrieved (see CPLR 5511; Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 545-546 [1983]).


text:
    Frank Cunha, Appellant, v Blanche S. Shapiro, Individually and as Executrix of Jesse Shapiro, Deceased, et al., Respondents.
    Submitted June 4, 2007;
    decided September 4, 2007
    Reported below, 42 AD3d 95.
   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:
    Leslie Feher, Appellant, v John Jay College of Criminal Justice et al., Respondents.
    Submitted June 18, 2007;
    decided September 4, 2007
    Reported below, 37 AD3d 307.
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that dismissed the appeal to that Court from the March 2006 and July 2006 orders of Supreme Court, dismissed upon the ground that such part of the order does not finally determine an action or proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of J. David Golub, Appellant, v Commissioner of Taxation and Finance for State of New York et al., Respondents.
    Submitted June 18, 2007;
    decided September 4, 2007
   Motion for reargument of motion for leave to appeal denied with $100 dollars costs and necessary reproduction disbursements [see 8 NY3d 811].


text:
    In the Matter of Shawn Green, Appellant, v Glenn S. Goord, as Commissioner of New York State Department of Correctional Services, Respondent.
    Submitted June 4, 2007;
    decided September 4, 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:
    Eulah Jones et al., Appellants, v Edward D. Corley, Jr., et al., Respondents.
    Submitted April 30, 2007;
    decided September 4, 2007
    Reported below, 35 AD3d 381.
   Motion for leave to appeal brought on behalf of Lucinda Swingearn and Delores Gordon dismissed upon the ground that as to them timely substitution has not been made (see CPLR 1021); 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:
    Erasmo A. Marsh, Respondent, v Paul D. Hasbrouck, Appellant, et al., Defendants. (And a Third-Party Action.)
    Submitted June 18, 2007;
    decided September 4, 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:
    John Moody, Respondent, v Svetlana Sorokina, Appellant.
    Submitted June 11, 2007;
    decided September 4, 2007
    Reported below, 40 AD3d 14.
   Motion for reconsideration of this Court’s May 8, 2007 dismissal order denied [see 8 NY3d 978]. Motion for poor person relief dismissed as academic.


text:
    Morris Heights Health Center, Inc., Respondent, v Andrew DellaPietra et al., Appellants, et al., Defendants.
    Submitted June 4, 2007;
    decided September 4, 2007
    Reported below, 38 AD3d 261.
   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:
    The People of the State of New York, Respondent, v James Taylor, Appellant.
    Submitted June 11, 2007;
    decided September 4, 2007
    Reported below, 42 AD3d 13.
   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:
    Oleg Rivkin, Appellant, v Century 21 Teran Realty LLC et al., Respondents, et al., Defendants.
    Decided September 4, 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 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:
    City of Syracuse et al., Appellants, v Onondaga County et al., Respondents. Atlantic States Legal Foundation, Inc., et al., Plaintiffs; 2.3 Acres of Land in the City of Syracuse, N.Y., Defendant and Third-Party Defendant.
    Decided September 4, 2007
   Pursuant to the August 13, 2007 order of the United States Court of Appeals for the Second Circuit withdrawing its certification of questions accepted by the Court of Appeals on October 24, 2006, certified questions marked withdrawn [see 7 NY3d 863].

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


text:
    Amaranth LLC et al., Appellants, v National Australia Bank Limited et al., Respondents.
    Submitted June 18, 2007;
    decided September 6, 2007
    Reported below, 40 AD3d 279.
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed the denial of appellants’ motion to amend the complaint, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of The American Committee for the Weizmann Institute of Science, Appellant, v Jennifer Dunn, Individually and as Executor of Doris Weingarten, Deceased, et al., Respondents.
    Submitted July 30, 2007;
    decided September 6, 2007
    Reported below, 36 AD3d 419.
   Motion by Andrew M. Cuomo, Attorney General of the State of New York, for an order permitting movant to file a brief and to participate in oral argument of the appeal, granted in each respect.


text:
    In the Matter of Liquidation of American Druggists’ Insurance Company. Superintendent of Insurance of the State of New York, Respondent, v Denis D. Kenny, Appellant.
    Submitted August 13, 2007;
    decided September 6, 2007
    Reported below, 15 AD3d 268.
   Motion for reargument of motion for leave to appeal denied [see 9 NY3d 857].


text:
    Manuel Arons, Respondent, v Robert Jutkowitz et al., Appellants, et al., Defendant.
    Submitted September 4, 2007;
    decided September 6, 2007
    Reported below, 37 AD3d 94.
   Motion by New York City Health and Hospitals Corporation for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Bi-Economy Market, Inc., Appellant, v Harleysville Insurance Company of New York et al., Respondents.
    Submitted July 2, 2007;
    decided September 6, 2007
    Reported below, 37 AD3d 1184.
   Motion by New York Public Adjusters Association for leave to file a brief amicus curiae on the appeal herein granted. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Bi-Economy Market, Inc., Appellant, v Harleysville Insurance Company of New York et al., Respondents.
    Submitted July 9, 2007;
    decided September 6, 2007
    Reported below, 37 AD3d 1184.
   Motion by United Policyholders for leave to file a brief amicus curiae on the appeal herein granted. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    In the Matter of Sinclair Haberman et al., Appellants, v Zoning Board of Appeals of City of Long Beach et al., Respondents.
    Submitted August 6, 2007;
    decided September 6, 2007
    Reported below, 35 AD3d 465.
   Motion, insofar as it seeks to strike respondents’ appendix, denied; motion, insofar as it seeks to expand the record, granted and the record deemed expanded.


text:
    Keith Haywood, Appellant, v Curtis Drown, Respondent. Keith Haywood, Appellant, v Pat Smith et al., Respondents.
    (Action No. 1.)
    (Action No. 2.)
    Submitted September 4, 2007;
    decided September 6, 2007
    Reported below, 35 AD3d 1290, 1291.
   Motion by Prisoners’ Legal Services et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Hospital for Joint Diseases et al., Respondents, v Travelers Property Casualty Insurance Company et al., Appellants.
    Submitted August 27, 2007;
    decided September 6, 2007
    Reported below, 34 AD3d 532.
   Motion by New York Central Mutual Fire Insurance Company et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    In the Matter of Shelton Johnson, Respondent, v New York City Department of Environmental Protection et al., Appellants.
    Submitted July 9, 2007;
    decided September 6, 2007
    Reported below, 34 AD3d 241, 7 AD3d 383.
   Motion to expand the record granted and the record deemed expanded.


text:
    Ronald Lowe, III, an Infant, by His Father and Natural Guardian, Ronald Lowe, et al., Plaintiffs, v Dollar Tree Stores, Inc., Also Known as Dollar Tree New York, Inc., Defendant and Third-Party Plaintiff-Respondent. Mainkey Toys, Third-Party Defendant-Appellant.
    Submitted June 18, 2007;
    decided September 6, 2007
    Reported below, 40 AD3d 264.
   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:
    Monroe Yale Mann, Respondent, v Bernard Abel et al., Appellants, et al., Defendants.
    Submitted September 4, 2007;
    decided September 6, 2007
    Reported below, 37 AD3d 778.
   Motion by Advance Publications, Inc. et al. for leave to file a brief amici curiae on the appeal herein granted. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Mary McKinney et al., Appellants, v Commissioner of the New York State Department of Health et al., Respondents.
    Submitted August 13, 2007;
    decided September 6, 2007
    Reported below, 41 AD3d 252.
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Donald J. O’Mara III et al., Respondents, v Town of Wappinger, Appellant.
    Submitted September 4, 2007;
    decided September 6, 2007
   Motion by Association of Towns of State of New York for leave to file a brief amicus curiae on consideration of the certified question herein granted. Two copies of the brief may be served and 24 copies filed within seven days.


text:
    Joan E. Peebles, Respondent, v Robert M. Peebles, Jr., et al., Respondents, et al., Defendants, and David Peebles, Appellant.
    Submitted June 25, 2007;
    decided September 6, 2007
    Reported below, 40 AD3d 1388.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for a stay dismissed as academic.


text:
    The People of the State of New York, Respondent, v Reuben Avent, Appellant.
    Submitted August 13, 2007;
    decided September 6, 2007
    Reported below, 29 AD3d 601.
   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 Brett Cabrera, Appellant.
    Submitted July 16, 2007;
    decided September 6, 2007
    Reported below, 40 AD3d 1139.
   Motion for assignment of counsel granted and Gerald Orseck, Esq., 1924 State Route 52, Liberty, New York 12754 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Joseph E. Dixon, Appellant.
    Submitted July 9, 2007;
    decided September 6, 2007
    Reported below, 37 AD3d 1124.
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 denied as unnecessary and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Alfonso Dukes, Appellant.
    Submitted July 2, 2007;
    decided September 6, 2007
    Reported below, 30 AD3d 682.
   Motion for assignment of counsel granted and Mitch Kessler, Esq., 63 Pike Creek Drive, Cohoes, New York 12047 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Azim Hall, Appellant.
    Submitted July 16, 2007;
    decided September 6, 2007
    Reported below, 39 AD3d 100.
   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 Pedro Heureaux, Appellant.
    Submitted September 4, 2007;
    decided September 6, 2007
    Reported below, 33 AD3d 1020.
   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 Anthony Jones, Appellant.
    Submitted July 30, 2007;
    decided September 6, 2007
    Reported below, 2007 NY Slip Op 62544(U).
   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 John Lingle, Appellant.
    Submitted September 4, 2007;
    decided September 6, 2007
    Reported below, 34 AD3d 287.
   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 Nehemiah Nash, Appellant.
    Submitted July 9, 2007;
    decided September 6, 2007
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 dismissed upon the ground that no application for leave to appeal pursuant to CPL 460.20 will lie from an order of a single Justice of the Appellate Division.


text:
    The People of the State of New York, Respondent, v James W. Newton Jr., Appellant.
    Submitted July 2, 2007;
    decided September 6, 2007
    Reported below, 30 AD3d 896.
   Motion for assignment of counsel granted and Mitch Kessler, Esq., 63 Pike Creek Drive, Cohoes, New York 12047 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Cesar Ortega, Appellant.
    Submitted August 13, 2007;
    decided September 6, 2007
    Reported below, 40 AD3d 394.
   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 Joseph C. Peck, Appellant.
    Submitted August 13, 2007;
    decided September 6, 2007
    Reported below, 31 AD3d 1216.
   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 Manuel Rodriguez, Appellant.
    Submitted September 4, 2007;
    decided September 6, 2007
    Reported below, 33 AD3d 543.
   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 Rasool Salaam, Appellant.
    Submitted July 30, 2007;
    decided September 6, 2007
    Reported below, 36 AD3d 969.
   Motion for assignment of counsel granted and Susan T. Aron, Esq., PO Box 113, Voorheesville, New York 12186 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Daniel Sparber, Appellant.
    Submitted September 4, 2007;
    decided September 6, 2007
    Reported below, 34 AD3d 265.
   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 Roy Tarbell, Appellant.
    Submitted August 13, 2007;
    decided September 6, 2007
    Reported below, 38 AD3d 1368.
   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 Jose Martin Taveras, Also Known as Jose Martin Tavares, Also Known as Jose Taveras, Appellant.
    Submitted July 30, 2007;
    decided September 6, 2007
    Reported below, 2007 NY Slip Op 65977(U).
   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 Robert Thomas, Appellant.
    Submitted September 4, 2007;
    decided September 6, 2007
    Reported below, 35 AD3d 192.
   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 Marcos Urbaez, Appellant.
    Submitted July 23, 2007;
    decided September 6, 2007
    Reported below, 14 Misc 3d 135(A).
   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 Gary White, Appellant.
    Submitted July 23, 2007;
    decided September 6, 2007
    Reported below, 40 AD3d 662.
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    Nicholas Raffellini, Respondent, v State Farm Mutual Automobile Insurance Company, Appellant.
    Submitted August 27, 2007;
    decided September 6, 2007
    Reported below, 36 AD3d 92.
   Motion by New York State Trial Lawyers’ Association for leave to file a brief amicus curiae on the appeal herein granted. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    In the Matter of Riverkeeper, Inc., Respondent, v Planning Board of Town of Southeast et al., Appellants. In the Matter of Richard Feuerman et al., Respondents, v Planning Board of Town of Southeast et al., Appellants. In the Matter of Croton Watershed Clean Water Coalition, Inc., et al., Respondents, v Planning Board of Town of Southeast et al., Appellants.
    (Proceeding No. 1.)
    (Proceeding No. 2.)
    (Proceeding No. 3.)
    Submitted September 4, 2007;
    decided September 6, 2007
    Reported below, 32 AD3d 431.
   Motion by Association of Towns of State of New York et al. for leave to file a brief amici curiae on the appeal herein granted. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    In the Matter of Riverkeeper, Inc., Respondent, v Planning Board of Town of Southeast et al., Appellants. In the Matter of Richard Feuerman et al., Respondents, v Planning Board of Town of Southeast et al., Appellants. In the Matter of Croton Watershed Clean Water Coalition, Inc., et al., Respondents, v Planning Board of Town of Southeast et al., Appellants.
    (Proceeding No. 1.)
    (Proceeding No. 2.)
    (Proceeding No. 3.)
    Submitted September 4, 2007;
    decided September 6, 2007
    Reported below, 32 AD3d 431.
   Motion by Building and Realty Institute of Westchester & The Mid-Hudson Region for leave to file a brief amicus curiae on the appeal herein granted. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    In the Matter of Riverkeeper, Inc., Respondent, v Planning Board of Town of Southeast et al., Appellants. In the Matter of Richard Feuerman et al., Respondents, v Planning Board of Town of Southeast et al., Appellants. In the Matter of Croton Watershed Clean Water Coalition, Inc., et al., Respondents, v Planning Board of Town of Southeast et al., Appellants.
    (Proceeding No. 1.)
    (Proceeding No. 2.)
    (Proceeding No. 3.)
    Submitted September 4, 2007;
    decided September 6, 2007
    Reported below, 32 AD3d 431.
   Motion by Real Estate Board of New York, Inc. for leave to file a brief amicus curiae on the appeal herein granted. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    In the Matter of Nicholas Schreiber, Respondent-Appellant, v K-Sea Transportation Corp. et al., Appellants-Respondents.
    Submitted September 4, 2007;
    decided September 6, 2007
    Reported below, 30 AD3d 101.
   Motion by American Association for Justice for leave to file a brief amicus curiae on the appeal herein granted. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    In the Matter of Gregory V. Serio, as Superintendent of the New York State Insurance Department Liquidation Bureau, et al., Appellants, v Alan G. Hevesi, as Comptroller of the State of New York, Respondent.
    Submitted August 6, 2007;
    decided September 6, 2007
    Reported below, 40 AD3d 72.
   Motions for leave to substitute Thomas E DiNapoli as a party respondent in the place and stead of Alan G. Hevesi; Eric R. Diñado as a party appellant in the place and stead of Gregory V Serio; and Mark G. Feters as a party appellant in the place and stead of James E O’Connor on the appeal herein granted.


text:
    In the Matter of Susan Spencer, Respondent, v James Spencer, Appellant.
    Submitted July 23, 2007;
    decided September 6, 2007
    Reported below, 35 AD3d 980.
   Motion by New York Chapter of the American Academy of Matrimonial Lawyers et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    Temple Bnai Shalom of Great Neck, Appellant, v Village of Great Neck Estates et al., Respondents, et al., Defendants.
    Submitted June 18, 2007;
    decided September 6, 2007
    Reported below, 32 AD3d 391.
   Motion for reargument of motion for leave to appeal denied with $100 costs and necessary reproduction disbursements [see 8 NY3d 813],


text:
    In the Matter of the Estate of Margaret M. Tomeck, Deceased. Edward M. Tomeck, as Executor of Margaret M. Tomeck, Deceased, Respondent-Appellant; Robert Christopher, as Commissioner of Social Services of Saratoga County, Appellant-Respondent, et al., Respondent.
    Submitted August 13, 2007;
    decided September 6, 2007
    Reported below, 29 AD3d 156.
   Motion for reargument denied [see 8 NY3d 724].


text:
    In the Matter of Wallace B.O., Respondent, v Christine S.O., Appellant.
    Submitted August 20, 2007;
    decided September 6, 2007
    Reported below, 39 AD3d 1201.
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Gerard Webster et al., Respondents, v Giacinto M. Ragona et al., Defendants, and Walter A. Peeters, Appellant.
    Submitted June 9, 2007;
    decided September 6, 2007
    Reported below, 40 AD3d 1360.
   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:
    [875 NE2d 881, 844 NYS2d 163]
    Hilary Guishard et al., Respondents, v General Security Insurance Company, Appellant.
    Decided September 11, 2007

      APPEARANCES OF COUNSEL

      Melito & Adolfsen P.C., New York City (S. Dwight Stephens of counsel), for appellant.

      Tartamella, Tartamella & Fresolone, Hauppauge (Natale J. Tartamella of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

Plaintiffs seek a judgment declaring that defendant General Security Insurance Company is obligated under the terms of a commercial general liability policy to defend and indemnify them in a pending personal injury action. In the underlying lawsuit, the plaintiff alleges that he severely injured his eye while riveting metal to a van for the purpose of converting it into a “Mr. Softee” ice cream truck. Plaintiffs owned the van.

The policy excludes coverage for bodily injury “arising out of the ownership, maintenance, use or entrustment to others of any . . . ‘auto’ . . . owned or operated by or rented or loaned to any insured.” General Security moved for summary judgment declaring that it was not obligated to defend or indemnify plaintiffs because the conversion work performed by the injured party constituted “maintenance.” Plaintiffs cross-moved for summary judgment, arguing contrariwise.

Without written opinion, Supreme Court denied General Security’s motion and granted plaintiffs’ cross motion for summary judgment, and judgment was entered declaring that General Security was obligated to defend and indemnify plaintiffs. Upon appeal, the Appellate Division affirmed, reasoning that because General Security had not submitted the policy schedule defining the term “auto,” it had not demonstrated that the van fell within the relied-upon policy exclusion.

We affirm, but for a different reason. The work performed by the injured plaintiff did not constitute “maintenance” of an auto. “Maintenance,” as that term is used in an insurance policy, means performance of work on “an intrinsic part of the mechanism of the car and its overall function” (Farmers Fire Ins. Co. v Kingsbury, 105 AD2d 519, 520 [3d Dept 1984] [removing tire from rim constitutes maintenance] [citation omitted], Iv denied 64 NY2d 607 [1985]; see Pennsylvania Millers Mut. Ins. Co. v Manco, 63 NY2d 940, 942 [1984] [changing a tire constitutes maintenance]). Riveting metal to a van in furtherance of its conversion to an ice cream truck aids in transforming the auto’s function, an activity distinct from “maintenance.”

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, with costs, in a memorandum.


text:
    [875 NE2d 24, 843 NYS2d 532]
    Natasha Alvarado, Appellant, v Cary H. Miles, D.D.S., Respondent.
    Decided September 11, 2007

      APPEARANCES OF COUNSEL

      Debra S. Reiser, New York City, for appellant.

      Newman Fitch Altheim Myers, PC, New York City (Michael H. Zhu of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

The expert affidavit submitted by plaintiff is conclusory and insufficient to raise an issue of fact as to whether defendant’s failure to see plaintiff personally on July 11 was a departure from the requisite standard of care. There is conflicting evidence as to whether defendant departed from the requisite standard of care by failing to arrange coverage for plaintiff during his absence on July 13, but this failure, if it occurred, was not a substantial factor in causing plaintiffs injuries.

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, with costs, in a memorandum.


text:
    [875 NE2d 24, 843 NYS2d 532]
    The People of the State of New York, Respondent, v Manuel Rivera, Also Known as Angel Rivera, Appellant.
    Decided September 11, 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 (Frank Glaser and Sylvia Wertheimer of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

The trial court did not err as a matter of law in denying defendant’s for-cause challenge to prospective juror R.R (see People v Arnold, 96 NY2d 358, 362-363 [2001]; People v Johnson, 94 NY2d 600, 610-614 [2000]). In addition, because the evidence supporting defendant’s guilt is overwhelming, any error in the People’s failure to provide him notice under CPL 710.30 (1) (b) of its intent to introduce the police officer’s identification testimony is harmless (see generally People v Grant, 7 NY3d 421, 424 [2006]; People v Crimmins, 36 NY2d 230, 241-242 [1975]). Defendant’s constitutional challenge to his adjudication as a persistent violent felony offender (see Penal Law § 70.08) is not preserved for this Court’s review and his remaining contention lacks merit.

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, insofar as appealed from, affirmed, in a memorandum.


text:
    Cyprian C. Davis, Appellant, v Peek A Boo Cab Corp. et al., Respondents.
    Submitted July 9, 2007;
    decided September 11, 2007
    Reported below, 38 AD3d 708.
   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:
    Richard Dubi et al., Appellants, v Jericho Fire District et al., Respondents.
    Submitted June 18, 2007;
    decided September 11, 2007
    Reported below, 22 AD3d 631.
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    Household Finance Realty Corporation of New York, Respondent, v Peter Gonzalez et al., Appellants, et al., Defendants.
    Submitted August 20, 2007;
    decided September 11, 2007
    Reported below, 39 AD3d 1138.
   Motion for reconsideration of this Court’s July 2, 2007 dismissal order denied [see 9 NY3d 859].


text:
    Charles McAllister, Appellant, v State of New York, Respondent.
    Submitted August 20, 2007;
    decided September 11, 2007
   Motion to vacate this Court’s July 18, 2007 dismissal order denied [see 9 NY3d 862],


text:
    In the Matter of James Neville, as Executor of Eugene F. Martin, Jr., Deceased, Respondent, v Marie Therese Martin et al., Appellants.
    Submitted June 25, 2007;
    decided September 11, 2007
    Reported below, 38 AD3d 386.
   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:
    Nob Hill Condominium, Section I, Appellant, v Susan Garrahan, Respondent.
    Submitted June 18, 2007;
    decided September 11, 2007
    Reported below, 38 AD3d 630.
   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 Nurayah J. Suffolk County Department of Social Services, Appellant; Faiza J., Respondent.
    Submitted July 9, 2007;
    decided September 11, 2007
    Reported below, 41 AD3d 477.
   Motion for leave to appeal etc. denied. Motion for a stay dismissed as academic.

Chief Judge Kaye taking no part.