text:
    [938 NE2d 1002, 912 NYS2d 568]
    State of New York et al., Plaintiffs, v Philip Morris Incorporated et al., Respondents, and Dosal Tobacco Corporation et al., Appellants, et al., Defendants.
    Argued October 19, 2010;
    decided November 17, 2010

      APPEARANCES OF COUNSEL

      Troutman Sanders LLP (William H. Hurd, of the Virginia bar, admitted pro hac vice, and Ashley L. Taylor, Jr., of the Virginia bar, admitted pro hac vice, of counsel), Law Offices of Lisa M. Solomon, New York City (Lisa M. Solomon of counsel), Fredericks Peebles & Morgan, LLP (Joseph V. Messineo, of the Arizona and Nebraska bars, admitted pro hac vice, of counsel), and Jones Garneau LLP, Scarsdale (Michael K. Stanton, Jr., of counsel), for appellants.

      Kirkland & Ellis LLP (Stephen R. Patton, of the Illinois bar, admitted pro hac vice, and Douglas G. Smith, of the Illinois bar, admitted pro hac vice, of counsel), Winston & Strawn LLP, New York City (Alexander Shaknes of counsel), Kirkland & Ellis LLP (Peter A. Bellacosa and Mark A. Rasmussen of counsel), Howrey LLP (Robert J. Brookhiser, of the District of Columbia bar, admitted pro hac vice, and Elizabeth B. McCallum of counsel), Leader & Berkon LLP, New York City (Joshua K. Leader of counsel), Greenberg Traurig, LLP (Irving Scher and Jeffrey B. Sklaroff of counsel), and Paul B. Garland, New York City, for respondents.
   OPINION OF THE COURT

Appeal dismissed, without costs. As the nonparticipating tobacco manufacturers are not required by Supreme Court’s order to arbitrate and will not be bound by the arbitration, they are not aggrieved.

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


source: Caselaw Access Project

license: Public Domain

text:
    John Calderon, Jr., Respondent, v Walgreen Co. et al., Appellants.
    Submitted October 18, 2010;
    decided November 17, 2010
   Motion to vacate this Court’s September 15, 2010 dismissal order granted [see 15 NY3d 848 (2010)]. On the Court’s own motion, appeal dismissed, without costs, upon the ground that the Appellate Division order does not finally determine the action within the meaning of the Constitution.


text:
    Robert V. Cattani, M.D., Appellant, v Richard A. Marfuggi, M.D., Respondent. Richard Paul Stone, Esq., Nonparty Appellant.
    Submitted August 9, 2010;
    decided November 17, 2010
   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 H.M., Respondent, v E.T., Appellant.
    Submitted September 20, 2010;
    decided November 17, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from, affirming only Family Court’s September 2007 order and leaving the matter pending for further judicial action, does not finally determine the proceeding within the meaning of the Constitution.


text:
    Alice Kramer, Respondent, v Phoenix Life Insurance Co. et al., Defendants, and Lifemark S.A., Intervenor-Appellant. (And Third-Party Actions.)
    Submitted August 30, 2010;
    decided November 17, 2010
   Motion by intervenor-appellant Lifemark S.A. to strike portions of the brief of defendants Phoenix Life Insurance Co. and Lincoln Life & Annuity Co. of New York denied.


text:
    Alice Kramer, Respondent, v Phoenix Life Insurance Co. et al., Defendants, and Lifemark S.A., Intervenor-Appellant. (And Third-Party Actions.)
    Submitted September 7, 2010;
    decided November 17, 2010
   Motion by respondent Alice Kramer to strike portions of the brief of defendants Phoenix Life Insurance Co. and Lincoln Life & Annuity Co. of New York denied.


text:
    The People of the State of New York, Appellant, v Alaa Agina, Respondent.
    Submitted November 1, 2010;
    decided November 17, 2010
   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 respondent on the appeal herein.


text:
    The People of the State of New York, Appellant, v Jay Jo-mar Bradshaw, Respondent.
    Submitted November 1, 2010;
    decided November 17, 2010
   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 respondent on the appeal herein.


text:
    The People of the State of New York, Appellant, v Barak Cornell, Respondent.
    Submitted October 25, 2010;
    decided November 17, 2010
   Motion for assignment of counsel granted and Timothy P Murphy, Esq., care of Lipsitz Green Scime Cambria, LLI] 42 Delaware Avenue, Suite 120, Buffalo, New York 14202 assigned as counsel to the respondent on the appeal herein.


text:
    The People of the State of New York, Respondent, v James McRae, Appellant.
    Submitted August 16, 2010;
    decided November 17, 2010
   Motion for reargument denied [see 15 NY3d 761 (2010)].


text:
    The People of the State of New York, Respondent, v Luis Parada, Appellant.
    Submitted November 8, 2010;
    decided November 17, 2010
   Motion for assignment of counsel granted only to the extent that Glenn A. Garber, Esq., 350 Broadway, Suite 1207, New York, NY 10013 is assigned without fee to represent appellant on the appeal herein. Counsel may, however, apply for reimbursement of necessary disbursements incurred in connection with the assignment.


text:
    The People of the State of New York, Respondent, v Jesus Pratts, Appellant.
    Submitted October 25, 2010;
    decided November 17, 2010
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    In the Matter of Sasha B., a Child Alleged to be Neglected. Erica B., Appellant; Administration for Children’s Services, Respondent.
    Submitted November 15, 2010;
    decided November 17, 2010
   Motion for poor person relief granted.


text:
    U.S. Bank National Association, Respondent, v Lisa Ann Pia et al., Appellants. (And a Third-Party Action.)
    Submitted September 7, 2010;
    decided November 17, 2010
   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:
    [938 NE2d 1006, 912 NYS2d 571]
    Michael Aquino, Appellant, v Michael Higgins, Defendant, and John Higgins et al., Respondents.
    Argued October 12, 2010;
    decided November 18, 2010

      APPEARANCES OF COUNSEL

      Brown Chiari LLP, Lancaster (Samuel J. Capizzi of counsel), for appellant.

      Dennis J. Bischof, LLC, Williamsville (Dennis J. Bischof of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and the fourth cause of action against John and Heather Higgins reinstated.

There is an issue of fact as to whether defendants provided adequate supervision for minor guests who became intoxicated at their home and, in particular, whether defendants properly supervised their departure from the premises (compare Rudden v Bernstein, 61 AD3d 736, 738 [2d Dept 2009]). Since the basis of any liability on defendants’ part, assuming proximate cause, rests on the duty to supervise (see Appell v Mandel, 296 AD2d 514 [2d Dept 2002]), rather than their duty as landowners, it is not dispositive that the injury occurred off premises. As a result, summary judgment should not have been granted in defendants’ favor and the cause of action for negligent supervision should be reinstated.

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

Order, insofar as appealed from, reversed, etc.


text:
    Gregory A. Beroza, Appellant, v Michele A. Hendler, Respondent.
    Submitted September 20, 2010;
    decided November 18, 2010
   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 Nina Dakin, Respondent, v James Dakin, Jr., Appellant.
    Submitted September 20, 2010;
    decided November 18, 2010
   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:
    Pauline Guntlow, Respondent, v Marc Barbera et al., Defendants, and Anthony Ryan et al., Appellants.
    Decided November 18, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of the Claim of David W. Howard, Respondent, v Stature Electric, Inc., et al., Appellants. Workers’ Compensation Board, Respondent.
    Submitted September 13, 2010;
    decided November 18, 2010
   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:
    New York Community Bank, Respondent, v Jay Vermonty, Formerly Known as Jesus Vermonty, et al., Defendants, and Dave Sheldon, Also Known as David Sheldon, et al., Appellants.
    Submitted October 4, 2010;
    decided November 18, 2010
   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 Town of Waterford, Appellant, v New York State Department of Environmental Conservation, Respondent.
    Decided November 18, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Douglas B. Worth, Appellant, v Brian Fischer, as Commissioner of Correctional Services, Respondent.
    Submitted September 13, 2010;
    decided November 18, 2010
   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:
    [940 NE2d 555, 914 NYS2d 729]
    Joan Orphan, Appellant, v Samuel Pilnik, M.D., et al., Respondents, et al., Defendants.
    Argued October 20, 2010;
    decided November 23, 2010

      APPEARANCES OF COUNSEL

      Law Office of Stephen H. Weiner, New York City (Stephen H. Weiner of counsel), for appellant.

      Martin Clearwater & Bell LLP, New York City (Ellen B. Fishman, John L.A. Lyddane and Michael E. Gallay of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

To succeed in a medical malpractice cause of action premised on lack of informed consent, a plaintiff must demonstrate that (1) the practitioner failed to disclose the risks, benefits and alternatives to the procedure or treatment that a reasonable practitioner would have disclosed and (2) a reasonable person in the plaintiffs position, fully informed, would have elected not to undergo the procedure or treatment (see Public Health Law § 2805-d [1], [3]). Expert medical testimony is required to prove the insufficiency of the information disclosed to the plaintiff (CPLR 4401-a).

On this appeal, the sole remaining cause of action alleges that plaintiff did not give informed consent to a procedure to remove a suspicious mass from her breast, because she was not made aware that the procedure would leave a 6.5 centimeter scar. The remaining defendant—the doctor who performed the procedure—moved for summary judgment dismissing the complaint. Because plaintiff does not dispute that defendant established his prima facie entitlement to judgment as a matter of law, the only issue remaining is whether plaintiff, in opposition to the motion, demonstrated the existence of triable issues of fact (see Ferluckaj v Goldman Sachs & Co., 12 NY3d 316, 320 [2009]).

In opposition to the motion for summary judgment, plaintiff submitted her own affidavit and the affirmation of her medical

expert. The expert’s affirmation was tentative and vague, and would not state with certainty that the information plaintiff allegedly received prior to the procedure was a departure from what a reasonable practitioner would have disclosed. Moreover, the evidence proffered by plaintiff did not establish that a fully informed reasonable person would have declined the procedure. Indeed, plaintiff herself alleged only that, if fully informed, she would have sought a second opinion. Accordingly, plaintiffs opposition to defendant’s motion for summary judgment failed to demonstrate the existence of a triable issue of fact.

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

Order affirmed, with costs, in a memorandum.


text:
    [939 NE2d 140, 913 NYS2d 123]
    The People of the State of New York, Appellant, v Dwight Ashe, Respondent.
    Decided November 23, 2010

      APPEARANCES OF COUNSEL

      Cyrus R. Vance, Jr., District Attorney, New York City (David M. Cohn of counsel), for appellant.

      Legal Aid Society, Criminal Appeals Bureau, New York City (Jonathan Garelick and Steven Banks of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed (see People v Zanghi, 79 NY2d 815 [1991]).

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


text:
    In the Matter of the Claim of Shane Begor, Claimant, v Mark Holmes, Doing Business as Four Seasons Logging, et al., Respondents, and Brenner & McHugh, Inc., et al., Respondents, and American Zurich Insurance Company, Appellant. Workers’ Compensation Board, Respondent.
    Submitted October 12, 2010;
    decided November 23, 2010
   Motion for reargument of motion for leave to appeal denied [see 15 NY3d 815 (2010)].


text:
    In the Matter of Victor Altheus DePonceau, Appellant, v State of New York, Respondent.
    Decided November 23, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (see CPLR 5601).


text:
    Sally Dinerman, Appellant, v NYS Lottery, Respondent.
    Submitted October 4, 2010;
    decided November 23, 2010
   Motion, insofar as it seeks leave to appeal from the January-2010 Appellate Division order of affirmance, dismissed as untimely (see CPLR 5513 [b]). The prior motion for leave to appeal made at the Appellate Division was untimely (see Karger, Powers of the New York Court of Appeals § 12:3, at 436-437 [3d ed rev]). Motion, insofar as it seeks leave to appeal from the April 2010 and August 2010 Appellate Division orders, dismissed upon the ground that such orders do not finally determine the action within the meaning of the Constitution.


text:
    Skip Funt, Appellant, v Human Resources Administration of the City of New York, Respondent.
    Submitted September 13, 2010;
    decided November 23, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    David Harris, Respondent, v 170 East End Avenue, LLC, et al., Appellants, et al., Defendant.
    Submitted September 27, 2010;
    decided November 23, 2010
   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:
    Edward J. Len, as Administrator of the Estate of Michael E. Len, Deceased, Appellant, v State of New York et al., Respondents.
    Submitted August 16, 2010;
    decided November 23, 2010
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed that portion of the Court of Claims order that denied appellant’s motion to amend the claim, 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:
    Tracy Massop et al., Appellants, v Inventors Helpline/Patent and Trademark Institute, Respondent.
    Submitted October 4, 2010;
    decided November 23, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v Corey E. Becoats, Appellant.
    Submitted November 1, 2010;
    decided November 23, 2010
   Motion for reargument of motion for leave to appeal granted and, upon reargument, Kristin E Splain, Esq., Monroe County Conflict Defender, 80 West Main Street, Suite 300, Rochester, New York 14614 is assigned in the place and stead of Donald M. Thompson, Esq., care of Easton Thompson Kasperek Shiffrin LLI? as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Dennis Steinke, Appellant.
    Submitted September 27, 2010;
    decided November 23, 2010
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain this motion for leave to appeal from the order of the Appellate Division entered in this proceeding commenced in District Court, County of Nassau (see NY Const, art VI, § 3 [b] [7]; CPLR 5602).


text:
    The People of the State of New York, Respondent, v Carlos Ventura, Appellant.
    Submitted October 18, 2010;
    decided November 23, 2010
   Motion to enlarge the record denied.


text:
    The People of the State of New York ex rel. John Perez, Appellant, v Robert Ercole, Superintendent of Green Haven Correctional Facility, Respondent.
    Submitted September 20, 2010;
    decided November 23, 2010
   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:
    Randy Ratajczak, as Administrator of the Estate of Mary Ratajczak, Deceased, Respondent, v Mahmood Yoonessi, M.D., et al., Appellants. (And a Third-Party Action.)
    Decided November 23, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that it does not lie (see CPLR 5601).


text:
    In the Matter of Jomo Williams, Appellant, v W.C. Thompson, Jr., et al., Respondents.
    Submitted September 13, 2010;
    decided November 23, 2010
   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 etc. dismissed as academic.


text:
    [939 NE2d 805, 913 NYS2d 639]
    Francesco Strangio, Appellant, v Sevenson Environmental Services, Inc., et al., Defendants and Third-Party Plaintiffs-Respondents. Thomas Johnson, Inc., Third-Party Defendant-Respondent.
    Decided November 30, 2010

      APPEARANCES OF COUNSEL

      Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of counsel), for appellant.

      Phillips Lytle LLP, Buffalo (William D. Christ and Donna M. Lanham of counsel), for Sevenson Environmental Services, Inc. and another, respondents.

      Sliwa & Lane, Buffalo (Michael T Coutu of counsel), for Thomas Johnson, Inc., respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, without costs, by denying the motions of defendants and the third-party defendant for summary judgment insofar as they seek dismissal of plaintiffs Labor Law § 240 (1) claim and, as so modified, affirmed.

Triable issues of fact exist as to whether the defendants provided proper protection under Labor Law § 240 (1). Plaintiffs remaining contentions lack merit.

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

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


text:
    In the Matter of Radislaw Blazic, Appellant, v Robert Dennison, as Chair of the New York State Division of Parole, Respondent.
    Submitted October 4, 2010;
    decided November 30, 2010
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    In the Matter of Alireza Dilmaghani, an Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted November 15, 2010;
    decided November 30, 2010
   Motion for a stay dismissed as academic.


text:
    In the Matter of Tyrone Houston, Appellant, v Patricia DiMango, a Justice of the Supreme Court, et al., Respondents.
    Decided November 30, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the issues presented have become moot.


text:
    The People of the State of New York ex rel. Echo Westley Dixon, Appellant, v D. Rock, as Superintendent of Upstate Correctional Facility, Respondent.
    Submitted October 12, 2010;
    decided November 30, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    The People of the State of New York ex rel. Lionel Richardson, Appellant, v Anthony Boucaud, as Superintendent of Altona Correctional Facility, Respondent.
    Decided November 30, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that petitioner has been released on parole, and therefore, his liberty is no longer restrained to such a degree as to entitle him to the extraordinary writ of habeas corpus (see People ex rel. Wilder v Markley, 26 NY2d 648 [1970]).


text:
    Aura Quinones, Appellant, v Neighborhood Youth and Family Services, Inc., et al., Respondents.
    Submitted September 13, 2010;
    decided November 30, 2010
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    In the Matter of Kevin Weems, Appellant, v Brian Fischer, as Commissioner of Correctional Services, Respondent.
    Decided November 30, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601).


text:
    In the Matter of Derek Williams, Appellant, v Susan Connell, Superintendent, Oneida Correctional Facility, et al., Respondents.
    Submitted October 12, 2010;
    decided November 30, 2010
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Sean Wilson, Appellant, v Caroline Kilkenny, Respondent.
    Submitted October 18, 2010;
    decided November 30, 2010
   Motion for reargument of motion for leave to appeal denied [see 15 NY3d 817 (2010)].


text:
    [940 NE2d 913, 915 NYS2d 208]
    The People of the State of New York, Respondent, v Bruce Sweeper, Appellant.
    Decided December 14, 2010

      APPEARANCES OF COUNSEL

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

      Cyrus R. Vance, Jr., District Attorney, New York City (Patricia Curran of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. Supreme Court properly denied defendant’s application pursuant to Batson v Kentucky (476 US 79 [1986]). Defendant failed to establish a step one prima facie case of racial discrimination (id. at 94-97; People v Decker, 15 NY3d 625 [2010]). Defendant’s challenge to the constitutionality of his adjudication as a persistent violent felony offender is barred by Almendarez-Torres v United States (523 US 224 [1998]; see People v Bell, 15 NY3d 935 [2010] [decided today]). Defendant’s remaining contentions are without merit.

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

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


author: Chief Judge Lippman (dissenting).

text:
    [941 NE2d 739, 915 NYS2d 896]
    The People of the State of New York, Respondent, v Peter Wells, Appellant.
    Argued November 15, 2010;
    decided December 14, 2010
    APPEARANCES OF COUNSEL

      Peter Wells, pro se, and Appellate Advocates, New York City (Kendra L. Hutchinson and Lynn W.L. Fahey of counsel), for Peter Wells, appellant.

      Richard A. Brown, District Attorney, Kew Gardens (Donna Aldea and Gary Fidel of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

At trial, after some but not all jurors had been sworn, and while voir dire was ongoing, one of the sworn jurors advised a court officer that there was important information he neglected to tell the court. When questioned, the juror revealed that he worked the night shift and would be coming to court directly from work, raising concerns about his ability to stay awake during the trial (the juror explained that he had slept in the jury room the day before). Defense counsel argued that the juror was able to serve and could be ordered not to work nights until the trial ended. The court declined to issue such a directive and excused the juror based on a finding that he would be unable to remain sufficiently alert during court proceedings. We cannot say that the trial court—which was in the best position to assess the juror’s level of attentiveness—abused its discretion in discharging the juror after determining that he would be incapable of properly performing his duties.

On appeal, citing differences between the language in CPL 270.15 and 270.35, defendant asserts that the court lacked the authority to discharge the juror under the purportedly more narrow language in CPL 270.15. But defendant never referred to CPL 270.15 or relied on any restrictive statutory language in the trial court. Instead, defendant essentially argued against an incapacity discharge, contending that the juror was “able” to serve. Thus, defendant’s current claim is not preserved for our review. The dissent engages in an analysis of the differences between CPL 270.15 and 270.35—but neither party raised an argument in the trial court warranting such a discussion. Nor do we find, as the dissent suggests, that a court has “inherent authority” to discharge a sworn juror based on competing work commitments. CPL 270.15 permits discharge of a sworn juror based on incapacity and the discharge here emanated from the trial court’s concern that the juror would be incapable of remaining awake and attentive during the trial—an essential prerequisite of proper jury service.

Defendant’s contention relating to the trial court’s failure to charge an affirmative defense is similarly not preserved for review and his remaining pro se claims do not require reversal. Finally, we reject defendant’s challenge to the constitutionality of his adjudication as a persistent violent felony offender and persistent felony offender (see People v Bell, 15 NY3d 935 [2010] [decided today]; People v Quinones, 12 NY3d 116 [2009], cert denied 558 US —, 130 S Ct 104 [2009]).

Chief Judge Lippman (dissenting).

After answering with

evident comprehension and even alacrity numerous questions put to him by the court and the parties, the juror at issue was found acceptable and sworn. Although the voir dire of the juror ranged over numerous subjects, including the nature of his employment, no inquiry was made of him, and he did not volunteer information, as to the hours during which he worked or whether jury service would for him entail financial hardship. It subsequently came to the court’s attention, through a court officer, that the juror was employed at night. The court then inquired of the juror and learned that he worked as a per diem temp employee at a bank from midnight to 8:00 a.m. five nights a week and that, although he then felt “fine,” on a given day he might have difficulty concentrating at trial after working at night. The parties’ ensuing re-examination of the juror disclosed that he would lose income if he did not work and that he preferred not to remain on the case because, as he put it, “at this time I still have to pay my bills.” The court did not ask the juror whether he intended to work during the trial. Instead, he asked him to confirm that it would be an economic hardship if he did not work, and the juror obliged.

Out of the juror’s presence, defense counsel opposed his discharge:

“I think [the juror] should remain on the jury. It is his civic obligation. If he [sic] started to extend this sort of rationale to the entire panel we would probably lose half of them. So many people now are independent contractors and they don’t necessarily work for employers who extend those sort of benefits, paid jury service.
“This trial we know is going. It may very well be done by Friday, so now it is Tuesday, so what is the worse [sic] that is going to happen to [this juror]? He’s going to be out three days without pay, if he stays out, and furthermore, he said for the last two days he said I’m not out of it, that is what he said. He was able to follow the voir dire and the questions that I was asking and Miss Buchter [the prosecutor] was asking, so I think he is perfectly suitable and able” (emphasis added).

The prosecutor responded that although she “did initially like this juror,” she wished that he had disclosed his financial situation before he had been selected and now thought that economic pressure might interfere with his fairness and impartiality.

The court remarked that he too wished the juror had spoken up sooner. He, nonetheless, expressed the view that the juror’s need to work would be difficult to reconcile with the attentional demands of jury service and on that ground discharged the juror, contemporaneously noting defendant’s exception for the record.

Defendant argues that the court was without authority to discharge a sworn and able juror. The argument is premised upon CPL 270.15 (3), which provides in relevant part, “[i]f before twelve jurors are sworn, a juror already sworn becomes unable to serve by reason of illness or other incapacity, the court must discharge him or her and the selection of the trial jury must be completed in the manner prescribed in this section.” Contrary to the majority’s characterization, defendant’s argument does not rely on CPL 270.35. Defendant’s argument, fully preserved by his objection to the discharge of a “perfectly suitable and able” juror, is rather that the standard set forth in CPL 270.15, i.e., inability to serve, must control because, in the context of a statutory scheme comprehensively dictating the procedure for the qualification and disqualification of jurors, it alone articulates the grounds for disqualifying sworn jurors prior to the commencement of trial.

The main strain of the People’s response to this argument has not been that the juror was in fact unable to serve (although that improbable contention is eventually made) but that had he been discharged after the jury’s empanelment the statutorily available grounds for discharge would have been more numerous. It is, in this connection, postulated that the grounds for juror discharge should be understood generally to narrow as the proceedings progress and, accordingly, that, even though the express statutory grounds for preempanelment discharge are fewer, they are really at least as numerous and inclusive as the postempanelment grounds set forth in CPL 270.35. That statute provides, in relevant part:

“If at any time after the trial jury has been sworn and before the rendition of its verdict, a juror is unable to continue serving by reason of illness or other incapacity, or for any other reason is unavailable for continued service, or the court finds, from facts unknown at the time of the selection of the jury, that a juror is grossly unqualified to serve in the case or has engaged in misconduct of a substantial nature, but not warranting the declaration of a mistrial, the court must discharge such juror” (CPL 270.35 [1]).

The People’s argument is flawed, both because it is wrong to assume that the Legislature did not intend to limit the grounds for preempanelment juror discharge as it evidently did, and because even if there were some reason to suppose that the additional discharge grounds available under the postempanelment provision were available as well prior to empanelment, there would still have been no basis for the subject juror’s discharge.

Jury selection is for the parties, not the court. And, of course, particular care must be taken during jury selection in criminal proceedings to assure that judicial involvement does not intrude upon the defendant’s “constitutional right to a trial by a particular jury chosen according to law, in whose selection [the defendant] has had a voice” (People v Buford, 69 NY2d 290, 297-298 [1987] [internal quotation marks and citations omitted]). While jury selection is underway, the parties, subject only to the procedural limitations imposed by statute, are accorded nearly plenary control over the jury’s constitution. It is their prerogative to determine through the exercise of peremptory and for cause challenges who among the venire will and will not judge their case. The role of the judge respecting the parties’ selections is, prior to the trial’s commencement, commensurately circumscribed precisely as set forth in CPL 270.15 (3); he or she may not interfere with the parties’ choices unless it is manifest that an agreed-upon and sworn juror is unable to serve by reason of illness or other incapacity.

Once the jury is fully constituted and empaneled, the judge’s role becomes more complex. He or she must, while continuing to honor the parties’ jury selections to the extent possible, shepherd the trial towards a verdict and respond to developments impairing the integrity of the proceeding. It is to meet these responsibilities arising only after empanelment that a judge is accorded new power pursuant to CPL 270.35 to discharge jurors who become unavailable for continued service, or who prove, based on information not disclosed during jury selection, to be grossly unqualified, or who have engaged in gross misconduct not necessitating a mistrial. These powers are uniquely keyed to the demands of an unfolding trial; they are completely unnecessary and therefore not afforded in the context of jury selection. But even if they were, they would not avail the People in their defense of the discharge at issue.

There is no suggestion that that discharge could have been supported upon the ground of gross misconduct and it is manifest that the juror was not grossly unqualified—there is absolutely no indication that he was biased or incapable of rendering an impartial verdict. Nor does the record disclose any ground to suppose that he was “unavailable for continued service.” It is true, of course, that he preferred not to remain on the jury. But that is a preference doubtless shared by very many jurors—it cannot support an inference of unavailability unless the statute is to be read to require the wholesale discharge of sworn jurors (see People v Michael, 48 NY2d 1, 10 [1979]). Similarly inadequate to support an inference of unavailability was the circumstance that this juror would perhaps have been forced during the trial to choose between his employment and his civic obligations. Jurors routinely have this choice forced upon them and in making it suffer some economic loss and even some measure of hardship, but again, this cannot be deemed tantamount to unavailability pursuant to CPL 270.35; once a finding of unavailability is made, the court must under the statute discharge the juror and the practical result of mandated discharges based on such a common incident of jury service, would be the utter decimation of the jury pool. This juror was not by reason of his nighttime employment any more unavailable than a juror employed during the day. Indeed, the court’s conclusion as to his unavailability appears to have been paradoxically premised upon the circumstance that the juror had an option ordinarily foreclosed to jurors with day jobs, i.e., temporarily discharging both his jury and employment duties. Manifestly the prospect that the juror might elect to do both did not render him unavailable. The expectation of the court should have been that this juror, like any other ordinarily employed person called to serve on a jury and selected for that purpose without mention of any hardship that such service would entail, would make the adjustments temporarily required to facilitate the discharge of his civic duty. This is particularly so since, as defendant’s counsel noted, the trial was not expected to be lengthy.

When all is said and done neither the applicable statute, CPL 270.15, nor its inapplicable cousin, CPL 270.35, furnishes a basis for this juror’s discharge and the People are reduced to arguing not simply that the power of discharge afforded under the former is equal to that afforded under the latter, but that CPL 270.15 is not a limiting provision at all—that it simply states when a juror must be discharged, not when a juror may be discharged. Indeed, the People urge that a court should be deemed to possess inherent authority to discharge a sworn juror so long as there is a “valid, cogent reason,” other than illness or incapacity. This, it appears despite the majority’s disclaimer, is the position that this Court today embraces when it concludes that a court has discretion to discharge a sworn juror as unavailable because of competing work commitments. There was, after all, no other reason for the discharge. Contrary to the majority’s suggestion, there is absolutely nothing in the record to suggest that the juror manifested any present incapacity; the discharge was based solely on the court’s speculation that if the juror both worked and served on the jury he might not be attentive.

Leaving aside the circumstance that, as noted, most jurors have such commitments and that by deeming such commitments grounds for a sworn juror’s discharge the majority has in its unsigned memorandum freighted into the law broad judicial power fundamentally at odds with a defendant’s normative right to retain the jurors he or she has selected, it has long been the rule that jury selection is strictly governed by statute: “The law prescribes the qualifications of jurors. The court cannot add to, or detract from them. It cannot itself select the jury, directly or indirectly” (Hildreth v City of Troy, 101 NY 234, 239 [1886]). There is no statutory authorization for power of the sort hypothecated by the majority. The governing statute mandates the discharge of sworn jurors in closely defined circumstances; nowhere does it provide for the discretionary discharge of a juror, much less for discharge whenever the court believes that there is a “valid, cogent reason” to dispense with a juror’s services. Manifestly, such open-ended discretionary power is not inferable from the statute’s narrowly drawn discharge mandate. The proper inference is precisely to the contrary. We have, in fact, held that the only permissible challenge to a sworn juror is a challenge for cause pursuant to CPL 270.15 (4). Indeed, we have held that the “express provision for the exercise of a challenge for cause after a juror is sworn [provided by section 270.15 (4)] must be taken as a legislative direction that any other type of challenge to a sworn juror is impermissible” (People v Harris, 57 NY2d 335, 349 [1982]). By parity of reasoning, the express provision in the same encompassing statute of grounds upon which a sworn but not yet empaneled juror may be discharged must be taken as excluding other grounds in justification of the same purpose. The majority’s unexplained contrary approach essentially sanctions a juror challenge upon grounds that would, until now, have sufficed only to sustain peremptory disqualification. This is not compatible with the statute (see id.).

The People’s remaining argument is that the juror was subject to challenge and discharge for cause pursuant to CPL 270.15 (4). The argument, however, is completely unpreserved, never having been made before the trial court or even raised at the Appellate Division, and, in any event, without merit. There was no basis for the court to conclude, as the People lately contend, that the juror’s mental state was “likely to preclude him from rendering an impartial verdict based upon the evidence adduced at the trial” (CPL 270.20 [1] [b]). The speculation that if he both worked and sat on the jury he might be inattentive did not warrant the conclusion that he was likely to render a biased verdict and, in fact, the court did not make any such finding.

' Were I not of the view that reversal was required by reason of the juror’s improper discharge, I would vote to remit the matter for resentencing. While I believe that defendant’s sentencing as a persistent violent felony offender may be compatible with the rule of Apprendi v New Jersey (530 US 466 [2000]) in light of Almendarez-Torres v United States (523 US 224 [1998]), for the reasons stated in my partial dissent in People v Battles (16 NY3d 54, 59 [2010]) I cannot conclude that his sentencing as a persistent felony offender under New York’s discretionary sentencing statute (CPL 400.20 [1]) is capable of surviving constitutional scrutiny.

Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur; Chief Judge Lippman dissents in an opinion.

Order affirmed in a memorandum.

      . The juror, after being greeted and asked by the court if he was settled, replied “I’m good. You don’t have to ask me all of that stuff, I agree.”

      . Ironically, the significance of that provision, governing postempanelment discharges, in relation to CPL 270.15 (3), only became an issue in this litigation when the People urged for the first time on appeal that the discharge standards set forth in the two provisions were essentially interchangeable.

      . The closest the trial assistant came to even hinting at a challenge for cause was when, after defendant’s counsel objected to the juror’s discharge, she observed that his work situation “may interfere with him being a fair and impartial juror” (emphasis added). This does not state a ground for a for cause challenge to a sworn juror.


text:
    [940 NE2d 913, 915 NYS2d 208]
    The People of the State of New York, Respondent, v Jamel Bell, Appellant.
    Argued November 15, 2010;
    decided December 14, 2010
    APPEARANCES OF COUNSEL

      Jamel Bell, pro se, and Center for Appellate Litigation, New York City (Peter Theis and Robert S. Dean of counsel), for Jamel Bell, appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City (Sheryl Feldman and Mary C. Farrington of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. Defendant challenges his adjudication as a persistent violent felony offender (Penal Law § 70.08), contending that the procedure called for by CPL 400.15 and 400.16 deprives him of his constitutional right to trial by jury. Defendant’s argument is barred by Almendarez-Torres v United States (523 US 224 [1998]), which permits sentencing proceedings in which the fact of previous criminal convictions is found by a court sitting without a jury. Though several of our recent cases rely on Almendarez-Torres’s holding (see People v Quinones, 12 NY3d 116 [2009]; People v Rivera, 5 NY3d 61 [2005]; People v Rosen, 96 NY2d 329 [2001]), defendant now invites us to reject it, and to hold that the New York State Constitution requires all facts that may enhance a defendant’s sentence, including the fact of a prior conviction, to be found by a jury. Defendant would thus have us go beyond the United States Supreme Court’s ruling in Apprendi v New Jersey (530 US 466 [2000]) and later decisions applying Apprendi.

We decline defendant’s invitation. We see no reason to hold that the right of trial by jury under article I, § 2 of our Constitution is broader in this respect than the jury trial right protected by the Sixth Amendment to the Constitution of the United States.

Defendant’s claim in his pro se brief that he was deprived of his right to a speedy trial is unpreserved. His remaining contentions are without merit.

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

Order affirmed in a memorandum.


text:
    In the Matter of Gilbert L. Abramson, a Judge of the Family Court, Saratoga County, Petitioner. State Commission on Judicial Conduct, Respondent.
    Submitted November 22, 2010;
    decided December 14, 2010
   Motion by petitioner for relief related to the October 26, 2010 determination of respondent dismissed upon the ground that it is not authorized by the Judiciary Law or otherwise and that the Court of Appeals does not have jurisdiction to entertain it. The proper method for seeking review of a determination of the Judicial Conduct Commission is to file a written request pursuant to section 44 (7) of the Judiciary Law. Petitioner’s resignation does not excuse that procedure (see Judiciary Law § 47; Matter of Backal, 87 NY2d 1 [1995]).


text:
    Brad H. et al., Appellants, v City of New York et al., Respondents.
    Decided December 14, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Sam Chinn, Appellant, v Onondaga County District Attorney’s Office, Respondent.
    Submitted November 1, 2010;
    decided December 14, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of the Liquidation of Midland Insurance Company. American Standard Inc. et al., Appellants, et al., Claimants; Swiss Reinsurance America Corporation et al., Intervenors-Respondents, and Superintendent of Insurance of the State of New York et al., Respondents.
    Submitted November 1, 2010;
    decided December 14, 2010
   Motion to strike Addendum A to appellants’ brief and references thereto in the appellants’ brief granted. Miscellaneous cross motion to seal Addendum A dismissed as academic.


text:
    The People of the State of New York, Respondent, v Sebastian Delamota, Appellant.
    Submitted December 6, 2010;
    decided December 14, 2010
   Motion for assignment of counsel granted and Lynn WL. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Damian Gardner, Appellant.
    Submitted November 29, 2010;
    decided December 14, 2010
   Motion for assignment of counsel granted and Lynn WL. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Appellant, v John Grant, Respondent.
    Submitted November 22, 2010;
    decided December 14, 2010
   Motion to vacate this Court’s October 28, 2010 dismissal order granted [see 15 NY3d 891 (2010)].


text:
    The People of the State of New York, Respondent, v David M. Harnett, Appellant.
    Submitted December 6, 2010;
    decided December 14, 2010
   Motion by District Attorneys Association of the State of New York for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    The People of the State of New York, Respondent, v David M. Harnett, Appellant.
    Submitted December 6, 2010;
    decided December 14, 2010
   Motion by New York Civil Liberties Union for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    The People of the State of New York, Respondent, v David M. Harnett, Appellant.
    Submitted December 6, 2010;
    decided December 14, 2010
   Motion by New York State Defenders Association for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    The People of the State of New York, Respondent, v David Shaw, Appellant.
    Submitted November 15, 2010;
    decided December 14, 2010
   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, by Andrew M. Cuomo, Attorney General of the State of New York, Appellant, v Wells Fargo Insurance Services, Inc., et al., Respondents.
    Submitted November 29, 2010;
    decided December 14, 2010
   Motion by Liberty Mutual 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. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    The People of the State of New York, by Andrew M. Cuomo, Attorney General of the State of New York, Appellant, v Wells Fargo Insurance Services, Inc., et al., Respondents.
    Submitted December 6, 2010;
    decided December 14, 2010
   Motion by Council of Insurance Agents and Brokers for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Virgil Smith, Individually and as Parent and Natural Guardian of Derek Smith, a Minor, Respondent, v Hazel E. Sherwood et al., Defendants, and Central New York Regional Transportation Authority, Also Known as Centro, Inc., et al., Appellants.
    Submitted December 6, 2010;
    decided December 14, 2010
   Motion by New York Public Transit Association for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    [940 NE2d 918, 915 NYS2d 213]
    The People of the State of New York, Respondent, v Kenneth Stepter, Appellant.
    Decided December 16, 2010

      APPEARANCES OF COUNSEL

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

      Cyrus R. Vance, Jr., District Attorney, New York City (Allen J. Vickey of counsel), for respondent.

      Michael A. Cardozo, Corporation Counsel, New York City (Julie Steiner of counsel), for City of New York, intervenorrespondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Because the People have conceded that defendant has no obligation to register as a gun offender pursuant to New York City’s Gun Offender Registration Act (GORA) based upon the crime for which he was convicted, defendant’s claim that he cannot be required to register is moot. In any event, a challenge to gun offender registration under GORA cannot be raised on direct appeal from a judgment of conviction and sentence (see People v Smith, 15 NY3d 669 [2010] [decided today]).

Defendant’s remaining argument is unpreserved for our review (see People v Rosen, 96 NY2d 329, 335 [2001]).

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

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


text:
    [940 NE2d 919, 915 NYS2d 213]
    In the Matter of Albert f., a Person Alleged to be a Juvenile Delinquent, Appellant. Presentment Agency, Respondent.
    Decided December 16, 2010
    APPEARANCES OF COUNSEL

      Legal Aid Society, New York City (Patricia S. Colella of counsel), for appellant.

      Michael A. Cardozo, Corporation Counsel, New York City (Dona B. Morris of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), appeal dismissed, without costs, upon the ground that the two-Justice dissent at the Appellate Division is not on a question of law (CPLR 5601 [a]).

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


text:
    Joseph Gerdvil, Appellant, v Vito J. Rizzo et al., Respondents.
    Submitted October 25, 2010;
    decided December 16, 2010
   Motion for reargument of motion for leave to appeal denied [see 15 NY3d 819 (2010)].


text:
    In the Matter of Eric Hurlburt, Respondent, v Crystal Behr, Respondent. Attorney for the Child, Appellant.
    Submitted September 13, 2010;
    decided December 16, 2010
   Motion for leave to appeal dismissed upon the ground that appellant, having taken no appeal to the Appellate Division, may not appeal to the Court of Appeals from the Appellate Division order of affirmance.


text:
    In the Matter of Leon R. Koziol, a Suspended Attorney, Appellant. Grievance Committee of the Fifth Judicial District, Respondent.
    Decided December 16, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    The People of the State of New York ex rel. Rodney Snyder, Appellant, v Warden of Sing Sing Correctional Facility, Respondent.
    Submitted October 18, 2010;
    decided December 16, 2010
   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 Tyrone Powell, Appellant, v Chairperson of New York State Board of Parole, Respondent.
    Submitted September 27, 2010;
    decided December 16, 2010
   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:
    Ulysses I & Company, Inc., Respondent, v Gary Feldstein, Defendant, and Peter Morton, Individually and as Trustee for the Peter Morton Lifetime Trust, Defendant and Third-Party Plaintiff-Appellant. Sheldon Solow et al., Third-Party Defendants-Respondents.
    Submitted September 13, 2010;
    decided December 16, 2010
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed Supreme Court’s order denying appellant’s motion to vacate, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    [941 NE2d 1155, 916 NYS2d 578]
    Pat Roddy, Appellant, v Nederlander Producing Company of America, Inc., et al., Respondents, et al., Defendants. (And a Third-Party Action.)
    Decided December 21, 2010

      APPEARANCES OF COUNSEL

      Queller, Fisher, Washor, Fuchs & Kool, LLP, New York City (Jonny Kool and Barry A. Washor of counsel), for appellant.

      Law Offices of Charles J. Siegel, New York City (Robert S. Cypher, Jr., of counsel), for Nederlander Producing Company of America, Inc., and another, respondents.

      Mischel & Horn, P.C., New York City (Scott T. Horn of counsel), for Abhann Productions, Inc., respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and plaintiff’s complaint as against defendants

Nederlander Producing Company of America, Inc. and The Gershwin Theatre reinstated.

Plaintiff did not have a full and fair opportunity to litigate the issue of defendants’ negligence. The issue of defendants’ negligence was previously determined in an Appellate Division order granting defendants summary judgment on a third-party contractual indemnification claim against plaintiffs employer, third-party defendant Abhann Productions, Inc. Plaintiff had no interest in the outcome of the third-party indemnification claim. Plaintiff thus had neither incentive to litigate the motion for summary judgment nor adequate notice that the issue of defendants’ negligence could be conclusively decided against him. Under these circumstances, the law of the case doctrine does not preclude plaintiff from litigating the issue of defendants’ negligence.

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

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


text:
    [942 NE2d 295, 917 NYS2d 86]
    Azad Anand et al., Appellants, v Anoop Kapoor, Respondent.
    Argued November 16, 2010;
    decided December 21, 2010

      APPEARANCES OF COUNSEL

      Steven Cohn, P.C., Carle Place (Steven Cohn and Susan E. Dantzig of counsel), for appellants.

      Ryan, Perrone & Hartlein, P.C., Mineola (William D. Hartlein and William T. Ryan of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, and the certified question not answered upon the ground that it is unnecessary.

While playing golf with two friends at a nine-hole course in Suffolk County, defendant Anoop Kapoor “shanked” a shot, striking plaintiff Azad Anand in the left eye, with the errant ball. The accident occurred during play on the first hole. Kapoor’s second shot landed in the “rough.” Without waiting for Kapoor to retrieve his ball, Anand went to look for his on the fairway. Kapoor, meanwhile, found his ball and, without calling “Fore” or giving any other warning to his friends, hit the shot that went in an unintended direction and struck Anand. Anand suffered retinal detachment and permanent loss of vision in the injured eye.

Anand and his wife commenced this personal injury action against Kapoor, asserting that Kapoor’s failure to warn of his shot amounted to negligence and proximately caused Anand’s injury. After discovery, Supreme Court granted Kapoor’s motion for summary judgment and dismissed the complaint, both for the reason that Anand was not in the foreseeable zone of danger and on assumption of risk grounds (2007 NY Slip Op 34463[U] [2007]). The Appellate Division, with one Justice dissenting, affirmed (61 AD3d 787 [2009]). The same Court granted the Anands’ motion for leave to appeal to this Court. We now affirm.

A person who chooses to participate in a sport or recreational activity consents to certain risks that “are inherent in and arise out of the nature of the sport generally and flow from such participation” (Morgan v State of New York, 90 NY2d 471, 484 [1997]). A court evaluating the duty of care owed to a plaintiff by a coparticipant in sport must therefore consider the risks that the plaintiff assumed and “how those assumed risks qualified defendant’s] duty to him” (Turcotte v Fell, 68 NY2d 432, 438 [1986]). However, a plaintiff “will not be deemed to have assumed the risks of reckless or intentional conduct or concealed or unreasonably increased risks” (Morgan, 90 NY2d at 485 [citations omitted]).

Here, Kapoor’s failure to warn of his intent to strike the ball did not amount to intentional or reckless conduct, and did not unreasonably increase the risks inherent in golf to which Anand consented. Rather, the manner in which Anand was injured— being hit without warning by a “shanked” shot while one searches for one’s own ball—reflects a commonly appreciated risk of golf (see Rinaldo v McGovern, 78 NY2d 729, 733 [1991]).

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

Order affirmed, etc.


text:
    In the Matter of Alan Csorba, Appellant, v Denise Renzi, Respondent.
    Submitted November 1, 2010;
    decided December 21, 2010
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Family Court’s denial of appellant’s application to enforce a prior order of Family Court, dismissed upon the ground that such portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Rose Glatzer, Appellant, v Jay Glatzer et al., Respondents.
    Submitted October 25, 2010;
    decided December 21, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the consolidated proceeding and action within the meaning of the Constitution.


text:
    Liebel & Merle Sales, Inc., Respondent, v Polymer Conversions, Inc., Appellant.
    Submitted November 8, 2010;
    decided December 21, 2010
   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:
    Elizabeth Miller Nabors, Respondent, v Town of Somers, Appellant, et al., Defendant.
    Submitted November 8, 2010;
    decided December 21, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and is not an order of the type provided for in CPLR 5602 (a) (2).


text:
    The People of the State of New York, Respondent, v Manuel Cruz, Appellant.
    Decided December 21, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no civil appeal lies from the order of Supreme Court entered in this criminal proceeding (see NY Const, art VI, § 3 [b]; CPLR 5601; CPL 450.90).


text:
    The People of the State of New York, Respondent, v Victor Sowell, Appellant.
    Decided December 21, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the Court of Appeals does not have jurisdiction to entertain it (see NY Const, art VI, § 3 [b]; CPLR 5601; GPL 450.90).


text:
    In the Matter of the Claim of Lester A. Peters, Appellant. Janus Elevator Products, Respondent; Commissioner of Labor, Respondent.
    Submitted November 15, 2010;
    decided December 21, 2010
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    Tran Han Ho et al., Appellants, v Patrick J. Brackley, Respondent.
    Submitted November 1, 2010;
    decided December 21, 2010
   Motion for reargument of motion for leave to appeal denied with $100 costs and necessary reproduction disbursements [see 15 NY3d 707 (2010)].


text:
    Roberta Schreiber Ulmer, Appellant, v Rosalie F. Winard et al., Respondents.
    Submitted October 12, 2010;
    decided December 21, 2010
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed Supreme Court’s order denying appellant’s motion to vacate, dismissed upon the ground that such part of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    John Whitfield, Appellant, v State of New York, Respondent.
    Submitted November 8, 2010;
    decided December 21, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.