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

text:
    [ 887 NE2d 1125, 858 NYS2d 67]
    Christopher Sanatass et al., Appellants, v Consolidated Investing Company, Inc., et al., Respondents, et al., Defendants. (And a Third-Party Action.)
    Argued March 13, 2008;
    decided April 24, 2008

      POINTS OF COUNSEL

      Giuffré & Kaplan, P.C., Hicksville (Susan R. Nudelman and Steven Kaplan of counsel), for appellants.
    The Appellate Division erred in granting Consolidated Investing Company’s motion for summary judgment and dismissal of the Labor Law § 240 (1) cause of action and in denying appellants’ cross motion for summary judgment on the Labor Law § 240 (1) cause of action. (Gordon v Eastern Ry. Supply, 82 NY2d 555; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Zimmer v Chemung County Performing Arts, 65 NY2d 513, 1054; Sherman v Piotrowski Bldrs., 229 AD2d 959; D’Amico v Manufacturers Hanover Trust Co., 177 AD2d 441; Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280; Haimes v New York Tel. Co., 46 NY2d 132; Crespo v Triad, Inc., 294 AD2d 145; Sergio v Benjolo N.V., 168 AD2d 235; Dankulich v Felchar Mfg. Corp., 247 AD2d 660.)

      Goldberg & Carlton, PLLC, New York City (Michael S. Leyden of counsel), for respondents.
    I. The Appellate Division was correct in affirming the Supreme Court’s decision to grant Consolidated Investing Company’s motion for summary judgment and dismiss plaintiffs’ Labor Law § 240 (1) claim while otherwise denying plaintiffs’ own motion for summary judgment on this same Labor Law § 240 (1) cause of action. (Koch v E.C.H. Holding Corp., 248 AD2d 510, 92 NY2d 811; Jehle v Adams Hotel Assoc., 264 AD2d 354; Houchang Haghighi v Bailer, 240 AD2d 368; Scaglione v Riverbay Corp., 279 AD2d 254; Urbano v Plaza Materials Corp., 262 AD2d 307; Nagel v D & R Realty Corp., 288 AD2d 121; Molloy v 750 7th Ave. Assoc., 256 AD2d 61; Bingham v New York City Tr. Auth., 99 NY2d 355; Telaro v Telaro, 25 NY2d 433; Ta-Chotani v Doubleclick, Inc., 276 AD2d 313.) II. As an alternative, Consolidated Investing Company was entitled to summary judgment over and against the third-party defendant. (Lopez v 36-2nd J Corp., 211 AD2d 667; Richardson v Matarese, 206 AD2d 354; McNair v Morris Ave. Assoc., 203 AD2d 433.)

      Stewart G. Milch, New York City, for New York State Trial Lawyers Association, amicus curiae.
    Both the Appellate Division and Justice Evans erred in dismissing Christopher Sanatass’s Labor Law § 240 (1) claim where the undisputed evidence revealed (i) defendant owned the building where plaintiff’s accident occurred; (ii) the building was not a one- or two-family dwelling; (iii) there was a factual issue as to whether the work being performed was renovation work within the meaning of the statute; and (iv) the employer-contractor was selected and hired not by operation of law nor by a municipality, but instead by the very entity to whom defendant had leased the premises. (Klein v City of New York, 89 NY2d 833; Felker v Corning Inc., 90 NY2d 219; Almada v Long Is. Light. Co., 246 AD2d 563; Del Vecchio v State of New York, 246 AD2d 498; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Lombardi v Stout, 80 NY2d 290; Haimes v New York Tel. Co., 46 NY2d 132; Bland v Manocherian, 66 NY2d 452; Zimmer v Chemung County Performing Arts, 65 NY2d 513; Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280.)
   OPINION OF THE COURT

Graffeo, J.

On this appeal, we conclude that a property owner is liable for a violation of Labor Law § 240 (1) that proximately caused injury to a worker even though a tenant of the building contracted for the work without the owner’s knowledge. We therefore reverse the order of the Appellate Division and grant plaintiffs partial summary judgment.

Defendant Consolidated Investing Company owned a commercial building located at 423 West 55th Street in Manhattan. C2 Media, LLC occupied the 11th floor of the building under a lease assignment from the original tenant, Chroma Copy International. C2 Media agreed to abide by the terms of Chroma’s lease, including a provision that the “[tienant shall make no changes in or to the demised premises of any nature without Owner’s prior written consent.” In addition, a rider to the lease stated that “[a]ll renovations, decorations, additions, installations, improvements and or alterations of any kind or nature in the Demised Premises . . . shall require the prior written consent of Landlord.” The lease also contained an indemnification clause in favor of Consolidated and obligated the tenant to obtain comprehensive liability insurance coverage naming Consolidated as an additional insured.

In January 2000, plaintiff Christopher Sanatass, a mechanic employed by JM Haley Corporation, was directed to install a commercial air conditioning unit for C2 Media, which had hired JM Haley without notifying Consolidated. Upon arriving at the work site, plaintiff installed air conditioning ducts and drilled holes into the 10-foot-high ceiling to affix rods designed to hold the l,500-to-2,500-pound commercial unit. When plaintiff and a coworker hoisted the air conditioning unit about seven feet off the ground, one of the manual material lifts failed, causing the unit to drop and knock plaintiff to the floor. Plaintiff sustained injuries when the unit nearly crushed him.

Plaintiff and his wife, suing derivatively, commenced this action against, among others, Consolidated and Chroma, alleging violations of Labor Law § 240 (1) and § 241 (6). Consolidated cross-claimed against Chroma and brought a third-party action against Chroma and C2 Media seeking contribution and indemnification. Consolidated and plaintiff each moved for summary judgment. In support of his motion, plaintiff offered the affidavit of a licenced professional engineer, who concluded that the two portable lifts used to hoist the air conditioning unit were inadequate and failed because they had a lift capacity of only 1,000 pounds.

Supreme Court granted Consolidated’s motion and dismissed the complaint as against it. The Appellate Division, with two Justices dissenting, affirmed, reasoning that under Abbatiello v Lancaster Studio Assoc. (3 NY3d 46 [2004]) Consolidated was not liable “because the air conditioning installation was performed without its consent and in violation of the lease” (38 AD3d 332, 332 [2007]). Plaintiff appeals as of right to this Court pursuant to CPLR 5601 (a).

At the outset, Consolidated does not dispute that plaintiff was not afforded proper safety devices or that his injuries were proximately caused by the inadequate lifts. It nevertheless contends that our Court can resolve this case on a threshold issue by concluding that plaintiffs work did not constitute an alteration and, therefore, plaintiff was not engaged in an activity protected by Labor Law § 240 (1). We address this question first.

It is now settled that the term “altering” as used in section 240 (1) “requires making a significant physical change to the configuration or composition of the building or structure” (Joblon v Solow, 91 NY2d 457, 465 [1998]). Conversely, an alteration “does not encompass simple, routine activities such as maintenance and decorative modifications” (Panek v County of Albany, 99 NY2d 452, 458 [2003]).

To illustrate, in Joblon we determined that the plaintiff electrician’s installation of an electric wall clock, which required chiseling a hole in a concrete wall to extend electrical wiring from an adjoining room, was “significant enough” to come within the statute (91 NY2d at 465). Similarly, in Panek, the removal of a pair of 200-pound air handlers, requiring preparatory work consisting of the dismantling of a number of components of the cooling system and involving the use of a mechanical lift, constituted a significant change as a matter of law (99 NY2d at 458).

Here, plaintiff drilled holes and affixed metal rods into the ceiling and installed air conditioning ducts as preparatory work. He then attempted to install a l,500-to-2,500-pound air conditioning unit using two portable manual material lifts, at which point he sustained injuries as a result of an elevation-related hazard—a falling object. This work comfortably satisfies the alteration standard set by Joblon and Panek as a matter of law. We now turn to the issue that divided the Appellate Division.

Plaintiff argues that Consolidated is an “owner” within the meaning of Labor Law § 240 (1) and that Consolidated is liable for a statutory violation despite its lack of notice or control over the work. Consolidated counters that the courts below correctly applied Abbatiello in holding that an out-of-possession owner who has no knowledge of the work being done on its premises cannot be held liable under section 240 (1). Relying on the lease provision obligating the tenant to obtain the owner’s permission before hiring a contractor to perform any alterations, Consolidated asserts that the tenant’s breach severed any nexus between itself and plaintiff.

Labor Law § 240 (1), commonly referred to as the “scaffold law,” provides, in relevant part:

“All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.”

In 1969, the Legislature expanded the scope of responsible parties from persons “employing or directing another to perform labor” to “[a] 11 contractors and owners and their agents” (L 1969, ch 1108, § 1). The legislative history reveals that this amendment was intended to place “ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor” rather than on the workers themselves (Mem of Senator Calandra and Assemblyman Amann, 1969 NY Legis Ann, at 407). In broadening the protection afforded by the statute, the Legislature reemphasized that section 240 was enacted for the purpose of protecting workers (see id.).

We do not write on a blank slate when interpreting Labor Law § 240 (1). Indeed, a number of well-settled principles provide us with guidance. We have repeatedly stated that Labor Law § 240 (1) “imposes absolute liability on owners, contractors and their agents for any breach of the statutory duty which has proximately caused injury” (Gordon v Eastern Ry. Supply, 82 NY2d 555, 559 [1993]; see also Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 289 [2003]). To be sure, we have cautioned that an owner is not “an insurer after having furnished a safe workplace” and that an accident, in and of itself, does not establish a statutory violation (Blake, 1 NY3d at 286, 289). But at the same time, it is clear that the statutory duty imposed by this strict liability provision is “nondelegable and that an owner is liable for a violation of the section even though the job was performed by an independent contractor over which it exercised no supervision or control” (Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991]). Additionally, section 240 (1) “is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed” (Panek, 99 NY2d at 457 [internal quotation marks and citation omitted]).

In a trio of cases, we examined the liability of out-of-possession owners under the Labor Law. First, in Celestine v City of New York (59 NY2d 938 [1983], affg for reasons stated below 86 AD2d 592 [2d Dept 1982]), a worker who sustained injuries while building a subway line commenced a Labor Law action against the Long Island Rail Road (LIRR), the property owner. LIRR moved for summary judgment dismissing the claim, submitting that it should not be deemed an “owner” for purposes of Labor Law § 241 (6) because the property was subject to an easement in favor of the City of New York and the New York City Transit Authority. In declining to dismiss the section 241 (6) claim, the court rejected LIRR’s argument, reasoning that the statute imposes a nondelegable duty on owners to furnish adequate protection to workers “regardless of the absence of control, supervision or direction of the work” (86 AD2d at 593).

Next, in Gordon, an employee of Ebenezer Railcar Services brought a Labor Law § 240 (1) action against Eastern Railway Supply, the property owner, seeking damages for personal injuries occasioned when he fell from a ladder. On a motion for summary judgment, Eastern contended that it could not be liable as an owner under section 240 (1) because it had leased the property to Ebenezer, its wholly owned subsidiary, and “neither contracted to have the work performed nor was the work performed for its benefit” (82 NY2d at 559). Relying on Celestine, we disagreed and concluded that Eastern was responsible because liability “rests upon the fact of ownership and whether Eastern had contracted for the work or benefitted from it are legally irrelevant” (id. at 560).

Finally, in Coleman v City of New York (91 NY2d 821 [1997]), an employee of the New York City Transit Authority suffered elevation-related injuries while performing repair work and pursued a Labor Law § 240 (1) claim against the City of New York as the property owner. The City claimed that it should not be strictly liable because it had leased the property to the Transit Authority and “lacked any ability” to protect Authority workers based on the statutory scheme creating the Authority and governing their relationship (id. at 823). We rejected the City’s position, finding that Celestine and Gordon articulated a “bright line rule” that section 240 (1) applied to all owners regardless of whether the property was leased out and controlled by another entity or whether the owner had the means to protect the worker (id. at 822). In so ruling, we also disavowed Robinson v City of New York (211 AD2d 600, 600 [1st Dept 1995]), which had restricted the City’s liability as an owner under the Labor Law because it had leased property to the Transit Authority and “had no actual or potential control over the worksite and retained a right of re-entry for non-transit purposes only.” We determined that it was for the Legislature, not this Court, to carve out exceptions to the broad reach of owner liability under section 240 (1).

Here, like the defendants in Celestine, Gordon and Coleman, Consolidated seeks to avoid liability under Labor Law § 240 (1) by contending that it is not an “owner” for the purposes underlying the statute. Relying on its lack of knowledge of plaintiff’s work, undertaken at the behest of the tenant, Consolidated asks us to import a notice requirement into the Labor Law or, conversely, create a lack-of-notice exception to owner liability. But our precedents make clear that so long as a violation of the statute proximately results in injury, the owner’s lack of notice or control over the work is not conclusive—this is precisely what is meant by absolute or strict liability in this context (see Blake, 1 NY3d at 289). We have made perfectly plain that even the lack of “any ability” on the owner’s part to ensure compliance with the statute is legally irrelevant (see Coleman, 91 NY2d at 823). Hence, Consolidated may not escape strict liability as an owner based on its lack of notice or control over the work ordered by its tenant.

Consolidated’s reliance on our recent decision in Abbatiello is misplaced. In that case, plaintiff, a cable repair technician, was dispatched by his employer to an apartment building owned by Lancaster Studio Associates in response to a complaint by one of the building’s tenants. In the course of accessing a junction box on the exterior of the building, plaintiffs ladder bent, causing him to fall and sustain injuries. As a result, he commenced an action against Lancaster alleging a violation of Labor Law § 240 (1). Although we observed that Lancaster was unaware of and did not consent to the plaintiffs presence on the property, these facts alone were not determinative of our affirmance of the dismissal of the complaint.

Rather, in Abbatiello we carefully distinguished Celestine and its progeny, noting that in those cases a nexus existed between the out-of-possession owner and the plaintiff, be it by lease, easement or some other property interest. In Abbatiello, however, the injured cable technician was on the property solely “by reason of provisions of the Public Service Law” (3 NY3d at 51). Our analysis emphasized that section 228 of the Public Service Law established mandatory access for cable repair workers and that, but for this statute, the plaintiff “would be a trespasser upon Lancaster’s property” (id. at 52). Public Service Law § 219 also rendered Lancaster “powerless to determine which cable company is entitled to operate, repair or maintain the cable facilities on its property, since such decision lies with the municipality—the franchisor” (id.). We concluded that, absent an adequate nexus between the worker and the owner, the cable technician was not entitled to the extraordinary protections of the Labor Law since he was not an “employee” for purposes of section 240 (1); as such, Lancaster could not be liable for his injuries. Contrary to Consolidated’s argument in the present appeal, Abbatiello did not announce a new notice requirement for section 240 (1) cases.

Consolidated posits that, as in Abbatiello, it has an insufficient nexus with plaintiff to support absolute liability. We disagree. Consolidated leased the premises to a tenant who, in turn, hired plaintiffs firm to install a commercial air conditioning unit. True, Consolidated inserted a provision in the lease agreement requiring its tenant to obtain written permission before performing any alterations to the property. But the tenant’s breach of this lease clause—while it may have some bearing on Consolidated’s indemnification claim—did not sever the nexus. Plaintiff was specifically employed by the tenant to perform work in Consolidated’s building and, as between the owner and the worker, section 240 (1) clearly places the burden on the owner should a violation of the statute proximately cause injury. Unlike the cable technician in Abbatiello, the plaintiff in this case was an “employee” for purposes of section 240 (1) and cannot conceivably be viewed as a “trespasser.”

At bottom, Consolidated asks us to hold that an owner may insulate itself from liability by contracting out of the Labor Law. We decline its invitation to engraft this new exception onto the statute. To allow owners to do so by the simple expedient of a lease provision, as suggested by the dissent, would eviscerate the strict liability protection afforded by the Labor Law. As we have repeatedly stated, section 240 (1) exists solely for the benefit of workers and operates to place the ultimate responsibility for safety violations on owners and contractors, not the workers. Any modification to this strict liability statute must be made by the Legislature, not this Court.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, defendants-respondents’ motion for summary judgment as to the Labor Law § 240 (1) cause of action denied and plaintiffs’ motion for partial summary judgment as to liability on such cause of action granted.

Smith, J. (dissenting).

I dissent because today’s decision unwisely and unnecessarily increases the already heavy burden that Labor Law § 240 (1) places on New York property owners.

The statute says that, with exceptions not relevant here, “[a]ll contractors and owners . . . shall furnish or erect, or cause to be furnished or erected” safety devices “which shall be so constructed, placed and operated as to give proper protection” to workers. The duty of contractors and owners to provide “proper protection” is nondelegable (Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991]). Indeed, an owner cannot escape the duty imposed by the statute even by ridding itself of possession of the property; we have held that landlords of leased property are liable as owners under section 240 (1) (Coleman v City of New York, 91 NY2d 821, 823 [1997]; Gordon v Eastern Ry. Supply, 82 NY2d 555, 559-560 [1993]).

We have never addressed, however, the situation of a landlord that did not try to delegate responsibility for worker safety to its tenant, but retained in the lease the power to provide protection for workers—only to have the tenant ignore the lease provision. Here, the lease specifically prohibits the tenant from hiring a contractor to make any alterations in the premises without the landlord’s prior written consent. A representative of the landlord testified that if a request for consent had been made “we would want to know who the contractor was and we would want the contractor hopefully to be someone that was known and approved by the owner.” Whether such an inquiry would have prevented what happened in this case—the hiring of a contractor with unsafe equipment—will never be known, because the tenant violated the lease and never gave the landlord a chance to make the inquiry.

I do not see how the statutory goal of preventing workplace accidents is advanced by holding a landlord liable in a situation like this. What could anyone expect the landlord to do to prevent the accident, other than what it did? “The point of Labor Law § 240 (1) is to compel. . . owners to comply with the law, not to penalize them when they have done so” (Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 286 [2003]). The result the majority reaches effectively treats this landlord “as an insurer”—contrary to our view of the purpose of the statute as expressed in Blake (id.).

This result can be justified only by a literal, mechanical reading of the statute, to say that any “owner” is liable whenever a worker is not given proper protection, and is injured. We rejected such literalism in Abbatiello v Lancaster Studio Assoc. (3 NY3d 46 [2004]), where a cable television repairman was held to have no claim against a building owner who did not know the repairman was there, and could have done nothing about it if it had. I think we should follow the approach of Abbatiello here, where the tenant’s breach of the lease prevented the landlord from learning of the worker’s presence, rather than expand our already draconian rules of Labor Law § 240 (1) liability.

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

Order, insofar as appealed from, reversed, etc.

      . C2 Media was the successor-in-interest by merger to Chroma.

      . The court also determined that the Labor Law § 241 (6) claim was properly dismissed because the Industrial Code provision relied on by plaintiff was not sufficiently specific to support a violation of the statute. Plaintiff does not raise the section 241 (6) cause of action on this appeal.

      . Labor Law § 241 (6), like section 240 (1), applies to “[a]ll contractors and owners and their agents.”

      . We take no position on the merits of Consolidated’s third-party claims against C2 Media and Chroma.


source: Caselaw Access Project

author: Read, J.

license: Public Domain

text:
    [ 887 NE2d 1113, 858 NYS2d 55]
    Oleg Rivkin, Appellant, v Century 21 Teran Realty LLC et al., Respondents, et al., Defendants.
    Argued March 19, 2008;
    decided April 24, 2008

      POINTS OF COUNSEL

      Robert J. Tolchin, New York City, for appellant.
    I. Real estate brokers’ fiduciary duties to their clients include the same duty of undivided loyalty any other agent owes his principal. (Dubbs v Stribling & Assoc., 96 NY2d 337; Sonnenschein v Douglas Elliman-Gibbons & Ives, 96 NY2d 369; Coldwell Banker Residential Real Estate v Berner, 202 AD2d 949.) II. Defendants seek an exemption from the duty of loyalty enjoyed by no other species of agent. III. The amicus’ reliance on Sonnenschein v Douglas Elliman-Gibbons & Ives (96 NY2d 369 [2001]) is misplaced.

      Hiscock & Barclay, LLP, Albany (William A. Hurst and Stephen H. Volkheimer of counsel), for respondents.
    I. The fiduciary duty owed by Century 21 Teran Realty LLC and Joshua Luborsky to plaintiff did not include a duty to disclose Teran’s simultaneous representation of two potential buyers of the same property. (Manhattan Apts., Inc. v Simeon, 11 AD3d 404; Bucholtz v Sirotkin Travel, 80 Misc 2d 333; Matter of L. A. Grant Realty v Cuomo, 58 AD2d 251; Dubbs v Stribling & Assoc., 96 NY2d 337; Reiser, Inc. v Roberts Real Estate, 292 AD2d 726; Sonnenschein v Douglas Elliman-Gibbons & Ives, 96 NY2d 369; Lamdin v Broadway Surface Adv. Corp., 272 NY 133; Matter of Ted is Back Corp. [Roberts], 64 NY2d 725; Bynog v Cipriani Group, 1 NY3d 193; Matter of 12 Cornelia St. [Ross], 56 NY2d 895.) II. Plaintiff cannot demonstrate that his damages were proximately caused by defendants’ breach of their fiduciary duty. (Gibbs v Breed, Abbott & Morgan, 271 AD2d 180; Milbank, Tweed, Hadley & McCloy v Boon, 13 F3d 537; Douglas Holly, Inc. v Rice, 161 AD2d 560, 76 NY2d 709; E. W. Bruno Co. v Friedberg, 28 AD2d 91; Fine v Doernberg & Co., 203 AD2d 419.)

      Law Offices of Michael T. Wallender, Albany (Michael T. Wallender of counsel), for New York State Association of REALTORS, Inc., amicus curiae.
    I. In the contemporary New York real estate marketplace, absent an express agreement, buyer’s brokers are not generally expected to represent a particular buyer client exclusively. (Sonnenschein v Douglas Elliman-Gibbons & Ives, 96 NY2d 369; Thyroff v Nationwide Mut. Ins.

      Co., 8 NY3d 283; Dubbs v Stribling & Assoc., 96 NY2d 337; Wendt v Fischer, 243 NY 439; Reiser, Inc. v Roberts Real Estate, 292 AD2d 726; Glazer v LoPreste, 278 AD2d 198; Van Valkenburgh, Nooger & Neville v Hayden Publ. Co., 30 NY2d 34, 409 US 875.) II. Plaintiff should bear the burden of establishing an exclusive agreement which provided that the firm would represent no other buyer clients interested in similar properties. (Sonnenschein v Douglas Elliman-Gibbons & Ives, Inc., 96 NY3d 369; Lane—Real Estate Dept. Store v Lawlet Corp., 28 NY2d 36; Graff v Billet, 64 NY2d 899.) III. Plaintiff should bear the burden of establishing causation of any claimed damages. (Alvarado v Miles, 9 NY3d 902; Gibbs v Breed, Abbott & Morgan, 271 AD2d 180; Douglas Holly, Inc. v Rice, 161 AD2d 560, 76 NY2d 709.)
   OPINION OF THE COURT

Read, J.

The United States Court of Appeals for the Second Circuit has certified a question that calls upon us to explore the scope of the fiduciary duty owed by buyer’s agents affiliated with a real estate brokerage firm when their principals bid on the same property. We begin with the facts, which are substantially undisputed.

I.

On May 24 or 25, 2004, Oleg Rivkin, a New Jersey resident who was in the market for a summer home on Ulster Heights Lake in Ulster County, contacted Century 21 Teran Realty LLC, a real estate brokerage firm located in Woodstock, New York. Teran is co-owned by Andrew Peck and Chloe Dresser, who are both licensed real estate brokers (see Real Property Law § 440 [1]). Teran also possesses a broker’s license, which allows it to receive commissions in connection with the purchase and sale of real estate (see id.; Real Property Law § 440-a). At the time, 16 salespersons and four associate brokers worked under Teran’s aegis (see Real Property Law § 440 [2], [3]; § 440-a).

Rivkin spoke with Joshua Luborsky, one of Teran’s associate brokers, who told him about lakeside property at 103 Camp Road in Ellenville, which was listed for sale by another Century 21 franchise for $100,000. Details and pictures of the property posted by the local multiple listing service were forwarded to Rivkin by e-mail. The listing indicated that “all reasonable offers” for this modest cottage on one acre, which “[sat] right on the lake,” should be presented.

On May 25, 2004, Rivkin directed Luborsky to convey a verbal offer to the listing broker (the seller’s agent) to purchase the Camp Road property for $75,000, and Luborsky promptly did so. According to Rivkin, until he actually saw the property, he “couldn’t commit to . . . a contract[,] but at the same time [he] was very concerned that somebody was going to beat [him] out of [the property].” He authorized the verbal offer “to keep [his] spot” so that he would not find himself “out of the loop.” Luborsky and Rivkin also arranged to meet at the site on May 28, 2004, the Friday before the impending Memorial Day holiday weekend, so that Rivkin might look at the property, with the expectation that he would make a written offer if it proved to be as suitable as he believed it to be.

Upon actually viewing the Camp Road property, Rivkin formed the opinion that “[t]he building . . . was fairly worthless” and “dilapidated [and] needed to be knocked down”; and that the “value was entirely in the land [which was] fantastic.” As he later put it, this property “seemed to fit [his] requirements in every respect.”

Rivkin knew that the Camp Road property “had only been on the market ... a couple of weeks,” but he quizzed Luborsky about “whether there had been other offers on the property.” According to Rivkin, Luborsky replied that there had been other offers and, although he was “not aware of the amounts [,] . . . they were low enough not to have resulted in any counteroffers by the sellers.” Rivkin asked Luborsky if he considered $75,000 to be “a fair offer,” and Luborsky indicated that it was, and that a counteroffer was likely. Rivkin agreed with Luborsky’s assessment because “[i]n [his] experience there [was] always an offer and counteroffer process.” Further, he claims to have told Luborsky that he “was willing to go up to the asking price without any doubt,” because “[a]s far as [he] was concerned[,] the land was worth it.”

Rivkin then signed a written binder, offering to purchase the Camp Road property for $75,000, which Luborsky forwarded to the listing broker that same day, May 28, 2004. Rivkin also wrote a check to Teran for $1,500 as a deposit, and signed an acknowledgment that he had received, read and understood a form document entitled “Disclosure Regarding Real Estate Agency Relationships” provided to him by Luborsky. This document, mandated by and conforming to the requirements of article 12-A of the Real Property Law, states that the “buyer’s agent acts solely on behalf of the buyer” and has “without limitation, the following fiduciary duties to the buyer: reasonable care, undivided loyalty, confidentiality, full disclosure, obedience and a duty to account” (see also former Real Property Law § 443 [4]).

As it turns out, on May 20, 2004, a few days before Rivkin first talked to Luborsky, Susanne and Robert Martin, who were looking to buy vacation or retirement property in Ulster County, had contacted Dresser, the co-owner of Teran. She told them about the Camp Road property, and they scheduled an appointment to meet at the site for an inspection. When Dresser called the listing broker on May 28, 2004 to arrange for this viewing, the listing broker let her know that there was an offer pending (presumably, Rivkin’s), and that there might be several other showings over the holiday weekend. Upon seeing the Camp Road property, the Martins decided to offer $100,000, the listing price. On Sunday, May 30, 2004, they signed a written binder for that amount. Dresser promptly called the listing broker to advise her of this offer, and forwarded the written binder.

Luborsky contacted the listing broker on Saturday, May 29, 2004 to make sure that she had received Rivkin’s written binder faxed the previous day. The listing broker confirmed that she had, but “would likely have trouble reaching” the sellers because they were traveling over the holiday weekend. As a result, she told Luborsky not to expect a response to Rivkin’s offer any sooner than the following Tuesday, June 1, 2004, and that the property “might be shown to others over the weekend.”

Rivkin says that he called Luborsky on Sunday, May 30 and Monday, May 31 (Memorial Day), 2004 to inquire about the status of his offer. Luborsky claims to have told him everything that he had learned in his Saturday conversation with the listing broker, and Rivkin acknowledges at least that “at some point . . . [Luborsky] told [him] that the property had been shown over the weekend.”

According to Rivkin, on June 1, 2004 Luborsky told him that he had learned from the listing broker that offers had been received for the Camp Road property over the weekend, but that he did not know the particulars. Rivkin maintains that he reminded Luborsky that he wanted the opportunity to raise his $75,000 offer, and was prepared to do so; and that Luborsky assured him that he would try to find out from the listing broker whether the sellers were prepared to make a counteroffer, or wanted to receive “highest and best” final offers from all prospective purchasers.

At 4:57 p.m. on June 1, 2004, Rivkin sent Luborsky the following e-mail:

“What have you heard from the sellers’ agent? Anything? I don’t quite understand why it is taking so long to get a response from them. If they have changed their mind or don’t want to entertain the offer, I would like to know now, so that I could make an offer on another property.”

Sometime late in the afternoon or early evening, Luborsky picked up a voice mail message from the listing broker, who informed him that the sellers had accepted another offer, and so his client was “out of the running.” When Luborsky reported this to Rivkin, they commiserated about the loss and wondered why the sellers had not solicited a “highest and best” offer. According to Rivkin, Luborsky expressed the notion that the listing broker had “acted inappropriately” by steering the sale to one of its own clients.

At about 11:00 p.m. on June 1, 2004, Rivkin telephoned Carol Botnick, one of the sellers, to make sure that the listing broker had conveyed his $75,000 offer. Botnick, who co-owned the Camp Road property with her brother-in-law, Seymour Kraver, confirmed that she had received Rivkin’s offer. When he asked her why there was no counteroffer, she replied that she “had a better offer” and that Rivkin’s offer “was too low,” but she would not tell him what the better offer was. When he asked “what [it] would . . . take” for him to acquire the property, she told him to deal with the listing broker, and not to call her again. Despite this rebuff, Rivkin next telephoned Kraver at about 11:15 p.m., telling him that he “really like[d] the property, . . . how much the property meant to [him], how much the lake meant to [him].” Kraver shrugged Rivkin off, telling him that the decision was “basically” Botnick’s to make.

Rivkin claims to have talked to the listing broker at some point on June 2, 2004, and to have learned from her that the sellers had received a full-price offer, which they had accepted orally. According to Rivkin, she made the following statement: “I don’t know if I should be telling you this, but . . . the full-price offer came from your own broker’s office.” Rivkin also says that he confronted Luborsky with this information on June 2, 2004, before instructing him to present an offer of $101,000 to the sellers, contingent only upon a water well inspection. He sent Luborsky an e-mail confirming this offer at 2:13 p.m. That same day, the listing broker informed Dresser that the sellers had verbally accepted the Martins’ $100,000 offer, and let Luborsky know that the sellers had rejected Rivkin’s $101,000 offer.

After Luborsky informed Rivkin that his $101,000 offer had been turned down and—“for the first time”—that the offer with which he was competing was contingency-free, Rivkin responded by e-mail at 7:32 p.m., instructing Luborsky to make an offer of $105,000, with no contingencies. Immediately thereafter, Rivkin telephoned Kraver to make the $105,000 offer personally. Kraver told Rivkin that he would consider it, but again left him with the impression that the decision was his sister-in-law’s.

On June 3, 2004, Rivkin contacted the listing broker directly to confirm the $105,000 offer, which the sellers ultimately turned down. He professes to have learned from the listing broker that Dresser was the buyer’s agent for the successful purchaser, although the listing broker would not reveal the purchaser’s identity. In an e-mail sent to Luborsky at 9:39 p.m., Rivkin terminated his relationship with Teran, and asked for his deposit to be returned. He told Luborsky that he had just spoken to Kraver, “who did not give [him] any explanation” for rejecting the $105,000 offer, and that he was “frankly quite puzzled and not a little disappointed by all of this.” He expressed his suspicion, however, that Peck (who co-owned Teran with Dresser) was the buyer.

On June 3, 2004, Rivkin’s attorneys wrote to Peck, describing what they characterized as the “rather disturbing sequence of events [that] has transpired . . . , demonstrating a blatant breach by [Teran] of its fiduciary duty to . . . Rivkin, as well as actions evidencing [Teran’s] egregious conflict of interest and self-dealing.” Rivkin’s attorneys threatened litigation. On June 6, 2004, Rivkin wrote to the listing broker to ask for certain documents. He complained that his “offer was trumped by a full-price, no contingency offer from one of Teran’s principals, in violation of their fiduciary duty to me.”

Teran had no system in place for tracking whether its buyer’s agents were representing multiple buyers bidding on the same property. According to Dresser, until Peck received the June 3rd letter from Rivkin’s attorneys, she had no idea that Luborsky had made a competing offer for the Camp Road property. Peck was similarly unaware that Luborsky and Dresser were representing different buyers bidding on the Camp Road property, although he stressed that “[i]t is common practice in New York for buyer’ s-agents associated with a particular agency to assist a buyer-client in purchasing a property, while another buyer’s-agent associated with the same agency is doing the same thing.”

Later in June 2004, Rivkin brought this suit against Teran, Peck, Dresser and Luborsky (collectively, defendants) in the United States District Court for the Northern District of New York, seeking damages stemming from the loss of the Camp Road property, and, as relevant to the certified question, asserting a claim for breach of fiduciary duty. After discovery, Rivkin moved for partial summary judgment on the issue of liability, and defendants moved for summary judgment dismissing the complaint.

On November 17, 2005, the District Court Judge granted defendants’ motion and dismissed the case in an oral decision. By this time, Rivkin knew that the Martins —not Peck—had purchased the Camp Road property. As the Judge analyzed Rivkin’s revised theory of the case, “the gist of the legal issue” was whether or not there was “a per se rule that under circumstances like this, two employees of the same agency cannot, absent full disclosure, represent competing buyers for a piece of property.” Observing that “there [was] not a single case in New York on these facts that has held that kind of conduct in the real estate industry violates the law,” he “declinefd] to so hold.” He also considered it to be

“probably unnecessary ... to even reach that issue, because on the facts, as everybody concedes them, there simply is no basis whatsoever to associate the harm in the representation from Luborsky to the harm to [Rivkin] from losing the property. They were all avenues available had the sellers of the property wanted to . . . sell him the property at the price he was willing to pay.”

Rivkin appealed to the Second Circuit. Concluding that the case “turn[ed] on an unsettled question of state law for which there [was] no direct precedent,” the court stated that

“[t]he issues . . . concern the nature and extent of a buyer’s agent’s obligation to avoid or mitigate conflicts of interest among its principals. It is clear that buyer’s agents owe various fiduciary duties to their clients under New York’s property law. . . .
“Although in [Dubbs v Stribling & Assoc., 96 NY2d 337 (2001)] the New York Court of Appeals made the general statement that it is well settled that a real estate broker is a fiduciary with a duty of loyalty and an obligation to act in the best interests of the principal, Dubbs addressed the duties of seller’s agents rather than buyer’s agents.
“Indeed, it appears that no New York case deals with a buyer’s—rather than a seller’s—agent’s duties. The real estate marketplace may, for various reasons, dictate different duties for these two kinds of agents. In addition, even if we were to presume that sellers’ and buyers’ agents owe identical fiduciary duties, the facts of the New York cases that deal with sellers’ agents’ duties are materially different from those here: Dubbs, for example, involved allegations of an improper personal stake in the transaction, and Sonnenschein [v Douglas Elliman-Gibbons & Ives (96 NY2d 369 [2001])] addressed whether a seller’s broker may offer the properties of all of its principals to a potential customer. Thus, these cases neither answer the questions in this case nor can be used with confidence to reasonably predict the answer” (Rivkin v Century 21 Teran Realty LLC, 494 F3d 99, 106-107 [2d Cir 2007] [internal quotation marks and citations omitted]).

Further, “causation analysis will turn on the type of disclosure that New York law requires a buyer’s agent to make” (id. at 107). Consequently, the Second Circuit certified the following question to us: “Did any or all of [defendants] breach a fiduciary duty to Rivkin by failing to disclose, in any form, [defendants’] representation of a competing buyer for the property Rivkin sought to buy?” (Id. at 108.)

II.

“The trend of [real estate agents] representing buyers began primarily on the west coast in the mid-1980’s when states enacted the first agency disclosure laws making the practice viable” (Brown, Grohman and Valcarcel, Real Estate Brokerage: Recent Changes in Relationships and a Proposed Cure, 29 Creighton L Rev 25, 42 [1995]). New York’s agency disclosure statute, Real Property Law § 443, was originally enacted in 1991 (see L 1991, ch 726). This legislation sought “to address an issue of paramount concern to the Secretary of State”; specifically, although brokers and salespersons were required to make clear whether they represented the seller—as was traditionally the case—or the buyer in a residential sales transaction, “[t]he lack of a requirement that the information be provided in writing and in a uniform manner . . . resulted in uneven disclosure which too often . . . failed to eliminate confusion on the part of buyers or sellers as to the loyalties and duties of agents with whom they [were] dealing” (Assembly Mem in Support, Bill Jacket, L 1991, ch 726, at 16). Section 443 mandates disclosure for transactions involving one-to-four-family residential dwellings for sale or lease, but not condominium or cooperative apartments in a building with more than four units (Budget Report on Bills, id. at 11; Real Property Law § 443 [1] [Í]).

The statute defines a “buyer’s agent” as “an agent who contracts to locate residential real property for a buyer or who finds a buyer for a property and presents an offer to purchase to the seller or seller’s agent and negotiates on behalf of the buyer” (Real Property Law § 443 [1] [c]). A buyer’s agent must present the buyer with a disclosure form, the terms of which are statutorily prescribed, “prior to entering into an agreement to act as the buyer’s agent” and generally must “obtain a signed acknowledgment from the buyer” (Real Property Law § 443 [3] [c]). As previously noted, the form declares that the buyer’s agent “acts solely on behalf of the buyer” and has “without limitation, the following fiduciary duties to the buyer: reasonable care, undivided loyalty, confidentiality, full disclosure, obedience and a duty to account” (see also former Real Property Law § 443 [4]).

Rivkin places great weight on the words “solely” and “undivided” and the phrase “without limitation,” arguing, in effect, that they bespeak the Legislature’s determination, or at least its recognition, that a brokerage firm may not represent multiple bidders for the same property without disclosure and consent. We disagree. When the Legislature adopted section 443, the perceived mantle of “confusion” obscured consumers’ awareness as to whether a real estate broker or salesperson was acting in the interest of the seller or the buyer or both (i.e., dual agency) in a particular transaction, not whether a brokerage firm might represent multiple buyers (or sellers) with competing interests. Indeed, the disclosure form specifically states that the fiduciary duty is owed by an individual licensee and not the firm; that is, section 443 talks in terms of an “agent,” defined as “a person who is licensed as a real estate broker or real estate sales associate . . . and is acting in a fiduciary capacity” (see Real Property Law § 443 [1] [a] [emphasis added]). The Legislature did not, for example, say “any person, firm, limited liability company or corporation,” as it did when defining the term “real estate broker” in subdivision (1) of section 440.

Subdivision (6) of section 443, however, preserves “the common law of agency with respect to residential real estate transactions.” And in Sonnenschein and Dubbs—the two cases prominently mentioned by the Second Circuit—we explored a real estate broker’s fiduciary duty under the common law with respect to sellers. Looking to other jurisdictions, we concluded in Sonnenschein that “[o]nce oral negotiations have commenced between a seller and a potential purchaser concerning a real estate transaction, . . . the brokerage firm that produced the potential purchaser [does not] owe the seller a duty to refrain from showing the potential purchaser additional properties” (96 NY2d at 372). We considered “this approach to be consistent with the nature and fundamental requirements of the real estate marketplace in New York,” reasoning that

“a broker cannot be expected to decline a prospective purchaser’s request to see another property listed for sale with that broker. Any other rule would unreasonably restrain a broker from simultaneously representing two or more principals with similar properties for fear of violating a fiduciary obligation in the event a buyer chose the property of one principal over that of another. Similarly, such a limitation would frustrate the interests of sellers, who benefit from the opportunity to market their properties to as many potential purchasers as possible, as well as the interests of potential buyers, who often request exposure to a number of properties in order to select the one most suitable to their needs and budget” (id. at 376).

In Dubbs, the owners/sellers placed their apartment for sale on an “open listing,” which meant that the sellers would pay a commission to the broker who located the buyer. The sellers confided to their real estate agent that, rather than selling the apartment, they would have preferred to keep it, purchase the adjacent apartment and combine the two into a single unit, but that their neighbor refused to sell. The real estate agent showed the apartment to several prospective buyers. Thereafter, she made an offer on the apartment herself, and the parties entered into a written contract for its sale. Prior to closing, the real estate agent contracted to buy the adjacent apartment without advising the sellers that it had been placed on the market.

The sellers commenced an action against their real estate agent claiming that she had breached her fiduciary duty to them by failing to let them know that their neighbor’s apartment was for sale. We observed that “[w]here a broker’s interests or loyalties are divided due to a personal stake in the transaction or representation of multiple parties, the broker must disclose to the principal the nature and extent of the broker’s interest in the transaction or the material facts illuminating the broker’s divided loyalties” (Dubbs, 96 NY2d at 340). We determined, however, that the broker/principal relationship and accompanying fiduciary duty was severed before the agent learned that the neighbor’s apartment was on the market.

Although Dubbs addressed the duty of a seller’s agent, rather than a buyer’s agent, our observation in Dubbs that “[w]here a broker’s interests or loyalties are divided due to . . . [the] representation of multiple parties, the broker must disclose to the principal . . . the material facts illuminating the broker’s divided loyalties” bears on agency relationships generally (Dubbs, 96 NY2d at 340; see Restatement [Second] of Agency § 389 [“Unless otherwise agreed, an agent is subject to a duty not to deal with his principal as an adverse party in a transaction connected with his agency without the principal’s knowledge”]). Concomitantly, a buyer’s agent must inform the buyer of the duty of “undivided loyalty . . . [and] full disclosure” (Real Property Law § 443 [3] [c]; [4] [a]). Simultaneously representing multiple buyers with respect to the same property is inconsistent with these duties, absent disclosure and consent. Further, section 443 (4) (a) of the Real Property Law creates an expectation that a buyer’s agent will, in fact, not at one and the same time take the side of different buyers bidding for the same property.

That being said, in Sonnenschein we adopted a rule “consistent with the nature and fundamental requirements of the real estate marketplace in New York” (96 NY2d at 376). Here, practical considerations cause us to draw a distinction between the fiduciary duty owed by the buyer’s individual agent and that owed by the agent’s firm. An individual buyer’s agent acting on behalf of multiple clients bidding on the same property cannot negotiate an optimal purchase price for all of them. The buyers’ interests conflict; the agent’s representation is inevitably compromised. But two buyer’s agents simply affiliated with the same real estate brokerage firm and acting on behalf of different buyers bidding on the same property generally do not present comparable risks. There is no incentive for these agents to represent their clients less than zealously, consistent with their fiduciary duties under Real Property Law § 443 (4) (a) and common law: they only earn commissions for sales to their own clients. As a result, in this situation the agents have every reason to negotiate in their clients’ best interest.

As the New York State Association of REALTORS, Inc. (NYSAR) points out in its amicus brief, in today’s real estate marketplace buyers are routinely represented by buyer’s agents, and real estate licensees are commonly affiliated with megabrokerage firms featuring multiple licensees and offices. Indeed, NYSAR avows that numerous brokerage firms in New York have more than 100 or 200—and, in three cases, more than 1,000—affiliated licensees. Would-be buyers are very well aware that they are competing with other potential buyers, including those represented by other agents affiliated with the firm that they have retained. As we noted in Sonnenschein when discussing seller’s agents, “[u]nless a broker and principal specifically agree otherwise, a broker cannot be expected to decline a prospective purchaser’s request to see another property listed for sale with that broker” (96 NY2d at 376 [emphasis added]). As a corollary, unless a real estate brokerage firm and principal specifically agree otherwise, the firm is not obligated to insure that its affiliated licensees forgo making offers on behalf of other buyers for property on which the principal has already bid. Disclosure and consent are not prerequisites to a competing offer in this circumstance. An individual agent, however, may not represent multiple buyers bidding on the same property without making disclosure and obtaining consent.

Accordingly, the certified question should be answered in the negative.

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

Following certification of a question by the United States Court of Appeals for the Second Circuit and acceptance of the question by this Court pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), and after hearing argument by counsel for the parties and consideration of the briefs and the record submitted, certified question answered in the negative.

      . The Martins signed a contract for the purchase of the Camp Road property on June 11, 2004, which was evidently executed by the sellers, Botnick and Kraver, on June 25, 2004; the closing occurred on August 18, 2004.

      . Section 443 has been amended twice since 2004, when the events described in this appeal took place (see L 2006, ch 569; L 2007, ch 549). The 2006 amendments resulted in the splitting of subdivision (4) of section 443 into paragraphs (a) (dealing with buyer-seller transactions) and (b) (dealing with landlord-tenant transactions), and made some minor changes in wording with respect to buyer’s agents, apparently for the sake of clarity. Those changes included deletion of the sentence stating that “[a] buyer’s agent acts solely on behalf of the buyer.”


text:
    In the Matter of George P. Alessio, Jr., Appellant, v Paul G. Carey, Respondent, et al., Respondents.
    Submitted January 30, 2008;
    decided February 5, 2008
   Motion for leave to appeal granted. Motion for a stay granted.


text:
    [ 882 NE2d 394, 852 NYS2d 825]
    In the Matter of Dennis LaBombard.
    Decided February 7, 2008
   OPINION OF THE COURT

On the Court’s own motion, it is determined that Honorable Dennis LaBombard is suspended, with pay, effective immediately, from the office of Justice of the Ellenburg Town Court, Clinton 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.


author: Memorandum.

text:
    [ 882 NE2d 873, 853 NYS2d 261]
    Kashawn Yarborough, Appellant, v City of New York, Respondent, et al., Defendant.
    Argued January 2, 2008;
    decided February 7, 2008
    APPEARANCES OF COUNSEL

      Pollack, Pollack, Isaac & De Cicco, New York City (Brian J. Isaac of counsel), and Gary B. Pillersdorf and Associates, P.C., for appellant.

      Michael A. Cardozo, Corporation Counsel, New York City (Fay Ng, Pamela Seider Dolgow and John Hogrogrian of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

The unfortunate accident in this case occurred when plaintiff Kashawn Yarborough tripped and fell in a pothole on a Brooklyn street. Plaintiff commenced this action against defendant City of New York to recover damages for his serious injuries. Following discovery, the City moved for summary judgment dismissing the complaint, asserting that it did not have prior written notice of the hazard as required by the Pothole Law (Administrative Code of City of NY § 7-201 [c] [2]). In support of its motion, the City submitted the deposition testimony of a City Department of Transportation employee who testified that no complaints or maintenance and repair records existed for the subject location for two years prior to and one year subsequent to the date of the incident. The City also proffered an affidavit from a City Department of Environmental Protection employee stating that no complaints or records existed for this location during the same time period.

In opposition, plaintiff conceded that the City lacked prior written notice of the pothole, but asserted that such notice was unnecessary because the City affirmatively created the defective condition. Based upon an examination of photographs taken shortly after the accident, one of plaintiffs expert engineers opined that patching repairs to the roadway prior to the accident were negligently undertaken, citing two deficiencies. First, the patching was not flush with the existing pavement, resulting in a difference in elevation between the two surfaces, which he referred to as a “secondary tripping hazard.” He also concluded that a segment of the patching eroded—creating the pothole—because the patch was not tack coated with liquid asphalt, thereby allowing “water to enter the joint between the existing asphalt pavement and the patch, weakening the joint and the pavement subgrade and eventually resulting in a failure such as the one occurring here.” The engineer further noted that “wear, tear and environmental factors hastened the deterioration of the pavement patch.”

Supreme Court denied the City’s motion, finding that a question of fact existed on the issue of whether the City was responsible for the defective condition. The Appellate Division reversed and dismissed the complaint, reasoning that plaintiff failed to submit evidence that the repair immediately created the hazardous condition that caused plaintiffs accident.

Where the City establishes that it lacked prior written notice under the Pothole Law, the burden shifts to the plaintiff to demonstrate the applicability of one of two recognized exceptions to the rule—that the municipality affirmatively created the defect through an act of negligence or that a special use resulted in a special benefit to the locality (see Amabile v City of Buffalo, 93 NY2d 471, 474 [1999]). Additionally, the affirmative negligence exception “is limited to work by the City that immediately results in the existence of a dangerous condition” (Oboler v City of New York, 8 NY3d 888, 889 [2007] [emphasis omitted], quoting Bielecki v City of New York, 14 AD3d 301 [1st Dept 2005]).

Here, plaintiff acknowledges that the City lacked prior written notice of the dangerous condition. We agree with the Appellate Division that the City was entitled to summary judgment because plaintiff failed to raise a triable question of fact as to whether the City created a defective condition within the meaning of the exception, which requires that the affirmative negligence of the City immediately result in the existence of a dangerous condition. Even assuming the City performed the negligent pothole repair, plaintiff’s expert found that the deterioration of the asphalt patch—the condition that caused plaintiffs injury—developed over time with environmental wear and tear.

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

Order affirmed, with costs, in a memorandum.


text:
    [ 882 NE2d 394, 852 NYS2d 825]
    The People of the State of New York, Respondent, v Alvaro Cumberbatch, Appellant.
    Decided February 7, 2008

      APPEARANCES OF COUNSEL

      Office of the Appellate Defender, New York City (Margaret E. Knight, Richard M. Greenberg and Risa Gerson of counsel), for appellant.

      Robert M. Morgenthau, District Attorney, New York City (Beth Fisch Cohen 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 reversed, defendant’s plea vacated and case remitted to Supreme Court, New York County, for further proceedings on the indictment (see People v Louree, 8 NY3d 541 [2007]).

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


text:
    In the Matter of Adult Home at Erie Station, Inc., Respondent, v Assessor and Board of Assessment Review of City of Middletown et al., Appellants.
    Submitted February 4, 2008;
    decided February 7, 2008
   Motion by New York State Assessor Association for leave to file a brief amicus curiae on the appeal herein dismissed as untimely (see Rules of Ct of Appeals [22 NYCRR] § 500.23 [a] [3]).


text:
    Gary W. Conklin, Appellant, v Metro North Commuter Railroad Company, Respondent.
    Submitted December 17, 2007;
    decided February 7, 2008
   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 Woodrow Flemming, Appellant, v Dennis Boyle, as Justice of the Supreme Court of the State of New York, et al., Respondents.
    Submitted December 10, 2007;
    decided February 7, 2008
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    In the Matter of Joseph Guarino, Appellant, v New York State Racing & Wagering Board, Respondent.
    Submitted December 17, 2007;
    decided February 7, 2008
   Motion for leave to appeal denied with $100 costs and necessary reproduction disbursements. Motion for a stay dismissed as academic.


text:
    Kessel Brent Corporation et al., Appellants, v Benderson Property Development, Inc., Respondent.
    Submitted December 17, 2007;
    decided February 7, 2008
   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:
    Christopher A. Measom et al., Respondents, v Greenwich and Perry Street Housing Corporation, Appellant.
    Submitted December 10, 2007;
    decided February 7, 2008
   Motion for reargument of motion for leave to appeal denied [see 9 NY3d 946 (2007)].


text:
    In the Matter of Patricia E.K., Respondent, v Edward Thomas K., Jr., Appellant, and Heidi K., Respondent.
    Submitted December 10, 2007;
    decided February 7, 2008
   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, Respondent, v Michael Moore, Appellant.
    Submitted February 4, 2008;
    decided February 7, 2008
   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 Melvin Pinkston, Appellant.
    Submitted January 14, 2008;
    decided February 7, 2008
   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:
    David S. Pultz et al., Appellants, v Catherine Economakis et al., Respondents.
    Submitted January 14, 2008;
    decided February 7, 2008
   Motion by City-wide Task Force on Housing Court 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:
    In the Matter of the Estate of Anthony S. Sadowski, Jr., Deceased. Michele Lippa Gartner, Respondent; Joseph A.F. Sadowski, Appellant.
    Submitted December 24, 2007;
    decided February 7, 2008
   Motion for reargument of motion for leave to appeal denied [see 9 NY3d 987 (2007)].


text:
    Miguel Sumba, Plaintiff, v Clermont Park Associates, LLC, Defendant and Third-Party Plaintiff-Appellant. Clermont Park Residence LLC, Third-Party Defendant-Respondent.
    Submitted December 24, 2007;
    decided February 7, 2008
   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:
    Bensam Swakeen, Appellant, v New York City Health and Hospitals Corporation, Respondent.
    Submitted November 13, 2007;
    decided February 7, 2008
   Motion for reargument of motion for leave to appeal denied [see 9 NY3d 809 (2007)].


text:
    Tompkins-Seneca-Tioga Schools Health Insurance Cooperative, Respondent, v Candor Central School District, Appellant.
    Submitted December 10, 2007;
    decided February 7, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution and is not an order of the type provided for in CPLR 5602 (a) (2).


text:
    In the Matter of Raymond M. Weinstein et al., Appellants, v City of New York Department of Housing Preservation and Development et al., Respondents.
    Submitted December 3, 2007;
    decided February 7, 2008
   Motion for reargument of motion for leave to appeal denied [see 9 NY3d 811 (2007)].


text:
    [ 883 NE2d 350, 853 NYS2d 526]
    Markking Smalls, Appellant-Respondent, v AJI Industries, Inc., et al., Respondents, and Jahkim A. Jenkins et al., Respondents-Appellants.
    Argued January 8, 2008;
    decided February 12, 2008

      APPEARANCES OF COUNSEL

      Crasto & Associates, P.C., Howard Beach (Carol L. Schlitt and Anthony C. Crasto of counsel), for appellant-respondent.

      Buratti, Kaplan, McCarthy & McCarthy, Yonkers (John C. Buratti and Julie M. Sherwood of counsel), for respondents-appellants.

      Downing & Peck, P.C., New York City (John M. Downing, Jr., of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the order of Supreme Court reinstated.

At 1:40 a.m. on December 14, 2001, Jahkim A. Jenkins, a novice driver, was operating a vehicle owned by his sister, Christchelle Smalls, when he misjudged a lefthand turn from Randall Avenue onto Zerega Avenue in New York City, lost control of the automobile, and struck a parked dumpster owned by AJI Industries, Inc. Markking Smalls,' a passenger in the vehicle, allegedly suffered “serious injury” within the meaning of the No-Fault Law as a result (see Insurance Law § 5102 [d]).

Markking Smalls subsequently sued AJI, Jenkins and Christchelle Smalls to recover for noneconomic loss and such other damages as he might be entitled to under the no-fault regime. As relevant to this appeal, he alleged that AJI “negligently maintain[ed] . . . [and] unlawfully situat[ed]” the dumpster “on public roadways” by “placing [it] on public roadways without any reflection tape, cones, triangles or other safety devices.” AJI moved for summary judgment dismissing the complaint. Supreme Court denied the motion, but the Appellate Division reversed, with two Justices dissenting.

“As we have stated frequently, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers” (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986] [citations omitted and emphasis added]). .In order to make out a prima facie case on its motion, AJI was required to show that the dumpster was located neither in a driving lane on Zerega Avenue nor in the zebra-striped safety zone where parking was not permitted. The testimony of the police officer relied upon by AJI, however, was equivocal. Although the officer testified that the dumpster was positioned just four or five inches from the curb, he twice acknowledged that he could not recall whether the dumpster was parked in the safety zone. Two other points hear emphasis. First, we assume for purposes of this appeal that AJI rather than a third party determined the dumpster’s placement. Second, whether the dumpster bore reflectors or was set off with cones or similar warning devices is not relevant in this case. If the dumpster was located in a parking lane there was no more need for warning lights or devices than there would have been for a vehicle parked in the same spot.

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

Order reversed, etc.


text:
    [ 882 NE2d 885, 853 NYS2d 273]
    Wilfredo Alexis Castillo, Respondent, v 711 Group, Inc., Defendant and Third-Party Plaintiff-Respondent. 3-D Laboratory, Inc., Third-Party Defendant-Appellant.
    Decided February 12, 2008

      APPEARANCES OF COUNSEL

      Baxter, Smith, Tassan & Shapiro, P.C., Hicksville (Sim R. Shapiro of counsel), for third-party defendant-appellant.

      Miller & Associates, P.C., New York City (Scott E. Miller of counsel), and Jones Hirsch Connors & Bull, PC. (Mark D. Wellman of counsel), for third-party plaintiff-respondent.
   OPINION OF THE COURT

Memorandum.

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

Third-party defendant 3-D Laboratory, Inc. moved for summary judgment dismissing the third-party action against it, claiming the injuries plaintiff sustained to his left index finger did not qualify as a “grave injury” under Workers’ Compensation Law § 11. Supreme Court denied the motion. The Appellate Division affirmed the denial of the third-party defendant’s motion, but searched the record and awarded plaintiff and defendant/third-party plaintiff 711 Group, Inc. partial summary judgment on the issue whether plaintiff suffered a “grave injury” under Workers’ Compensation Law § 11. We affirm.

Workers’ Compensation Law § 11 expressly lists the “loss of an index finger” as a “grave injury.” Consistent with the principle that “[wjords in a statute are to be given their plain meaning without resort to forced or unnatural interpretations,” this Court has held that “the word ‘finger’ means the whole finger, not just its tip” (Castro v United Container Mach. Group, 96 NY2d 398, 401 [2001]).

Here, plaintiff demonstrated that he lost both interphalangeal joints of his left index finger, leaving a “painful amputation stump” that required two corrective surgeries to desensitize. Thus, plaintiff established that he suffered the “loss of an index finger” within the meaning of Workers’ Compensation Law § 11 (cf. Mentesana v Bernard Janowitz Constr. Corp., 36 AD3d 769, 770 [2d Dept 2007]; Blackburn v Wysong & Miles Co., 11 AD3d 421, 422 [2d Dept 2004]; McCoy v Queens Hydraulic Co., 286 AD2d 425, 425 [2d Dept 2001]).

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

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


text:
    In the Matter of Susan Baba, Appellant, v Martin Evans et al., Respondents.
    Submitted January 7, 2008;
    decided February 12, 2008
   Motion for reargument of motion for leave to appeal denied [see 9 NY3d 970 (2007)].


text:
    In the Matter of the Claim of Cecilia Cadorniga-Doeing, Appellant, v NSH/Long Island Jewish Health System et al., Respondents. Workers’ Compensation Board, Respondent.
    Submitted December 31, 2007;
    decided February 12, 2008
   Motion for reargument of motion for leave to appeal denied [see 9 NY3d 813 (2007)].


text:
    In the Matter of the Commissioner of Social Services of Ulster County, on Behalf of Diann F. Montgomery, Respondent, v Kenley Powell, Appellant.
    Submitted January 7, 2008;
    decided February 12, 2008
   Motion for reargument of motion for leave to appeal denied [see 9 NY3d 975 (2007)].


text:
    Eric Goldfine et al., Appellants, v Michael Sichenzia et al., Defendants, and Old Republic National Title Insurance Company, Respondent.
    Submitted December 3, 2007;
    decided February 12, 2008
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed so much of Supreme Court’s March 2005 order as denied 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 Shawn Green, Appellant, v Glenn S. Goord, as Commissioner of the New York State Department of Correctional Services, Respondent. In the Matter of Shawn Green, Appellant, v Glenn S. Goord, as Commissioner of the New York State Department of Correctional Services, Respondent.
    Submitted January 14, 2008;
    decided February 12, 2008
   Motion for reargument of motions for leave to appeal denied [see 9 NY3d 999 (2007)].


text:
    In the Matter of John A.J. Hinspeter, Appellant, v Rory J. Bellantoni et al., Respondents.
    Submitted December 24, 2007;
    decided February 12, 2008
   Motion for leave to appeal from the Appellate Division order denying appellant’s motion to vacate dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution.


text:
    Jan Leighton, Appellant, v Young Ja Kim Leighton, Respondent.
    Submitted January 14, 2008;
    decided February 12, 2008
   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 Doris Lumpkin, Appellant, v New York State Division of Human Rights et al., Respondents.
    Submitted December 17, 2007;
    decided February 12, 2008
   Motion for leave to appeal dismissed upon the ground that the motion for leave to appeal to the Court of Appeals does not lie from the order of an individual Justice of the Appellate Division (see NY Const, art VI, § 3; CPLR 5602). Motion for poor person relief dismissed as academic.


text:
    Alison R. Minton, Appellant-Respondent, v The Wings Club, Respondent, and Phil Bakes et al., Respondents-Appellants.
    Submitted November 26, 2007;
    decided February 12, 2008
   Motion by Alison R. Minton, insofar as it seeks leave to appeal as against Dan McKinnon and the Wings Club, dismissed upon the ground that as to those parties the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal by Alison R. Minton otherwise denied. Motion by Alison R. Minton for a stay dismissed as academic. Motion for leave to appeal, insofar as made by Dan McKinnon, dismissed upon the ground that as to him the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal, insofar as made by Phil Bakes, denied.


text:
    Devon Moore, an Infant, by His Mother and Natural Guardian, Gina Townsend, Appellant, v New York Medical Group, P.C., et al., Defendants, and New York City Health & Hospitals Corporation, Respondent.
    Submitted December 24, 2007;
    decided February 12, 2008
   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 Jonathan Odom, Appellant, v Donald Selsky, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
    Submitted January 7, 2008;
    decided February 12, 2008
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v Judy Knox, Also Known as Judith Knox, Appellant.
    Submitted December 3, 2007;
    decided February 12, 2008
   Motion for leave to appeal denied upon the ground that an appeal lies as of right. Motion for poor person relief dismissed as academic.


text:
    Prime Income Asset Management, Inc., et al., Appellants, v American Real Estate Holdings, L.P., et al., Respondents.
    Submitted December 17, 2007;
    decided February 12, 2008
   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:
    Red Tulip, LLC, Plaintiff, v Junia Hissa Neiva et al., Defendants. (And a Third-Party Action.) Palm Beach Mortgage Management, LLC, Respondent, v Red Tulip, LLC, et al., Defendants, and Junia Hissa Neiva, Appellant.
    Submitted December 10, 2007;
    decided February 12, 2008
   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 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. In the Matter of Cherie Ingraham et al., Respondents, v Planning Board of Town of Southeast et al., Appellants.
    Submitted December 24, 2007;
    decided February 12, 2008
   Motions for reargument denied {see 9 NY3d 219 (2007)].


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.
    Submitted January 22, 2008;
    decided February 12, 2008
   Motion for reargument denied [see 9 NY3d 219 (2007)].


text:
    Angela M. Rodriguez, Appellant, v Robert Doar, as Commissioner of Onondaga County Department of Social Services, et al., Respondents.
    Submitted January 7, 2008;
    decided February 12, 2008
   Motion for reargument denied [see 9 NY3d 987 (2007)].


text:
    Michael Saverese, Plaintiff, v Nicotra Group, LLC, et al., Respondents, et al., Defendant. Schwartz Goldstone & Campisi, LLP, Nonparty Appellant. Baxter Smith Tassan & Shapiro, P.C., et al., Nonparty Respondents. (And Other Actions.)
    Submitted December 17, 2007;
    decided February 12, 2008
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    In the Matter of 315 Berry Street Corporation, Appellant, v Hanson Fine Arts et al., Respondents.
    Submitted December 17, 2007;
    decided February 12, 2008
   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 where the appeal to the Appellate Division was from an order entered in an appeal from another court (see NY Const, art VI, §3 [b] [7]; CPLR 5602 [a]).


text:
    [ 883 NE2d 355, 853 NYS2d 530]
    Lehman Brothers, Inc., Respondent, v Rodney T. Cox, Appellant.
    Decided February 14, 2008

      APPEARANCES OF COUNSEL

      Law Offices of Isaac M. Zucker, PLLC, Garden City (Barry M. Bordetsky of counsel), for appellant.

      Alonso, Andalkar & Kahn, P.C., New York City (Erin E. Mac Avoy 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 reversed, with costs, petition denied in its entirety and respondent’s cross motion, insofar as it sought to confirm the arbitrator’s award to him of $48,000, granted. Petitioner Lehman Brothers failed to meet its heavy burden to vacate the arbitration award on respondent Cox’s counterclaim.

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


text:
    In the Matter of Gerard Amedio, Appellant, v Alan Hevesi, as Comptroller of the State of New York, Respondent.
    Submitted February 4, 2008;
    decided February 14, 2008
   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 Anonymous, an Attorney.
    Submitted January 7, 2008;
    decided February 14, 2008
   Motion for reargument denied [see 9 NY3d 980 (2007)].


text:
    In the Matter of City of New York, Appellant, Relative to the Melrose Commons Urban Renewal Area, Phase II. Kaiser Woodcraft Corp., Respondent.
    Submitted December 24, 2007;
    decided February 14, 2008
   Motion by the New York State Urban Development Corporation doing business as Empire State Development Corporation for leave to file a submission amicus curiae on the appeal herein granted and the submission is accepted as filed.


text:
    In the Matter of City of New York, Appellant, Relative to the Melrose Commons Urban Renewal Area, Phase II. Kaiser Woodcraft Corp., Respondent.
    Submitted December 24, 2007;
    decided February 14, 2008
   Motion by the Port Authority of New York and New Jersey for leave to file a letter brief amicus curiae on the appeal herein granted and the letter brief is accepted as filed.


text:
    Fair Price Medical Supply Corp., as Assignee of Cesar Nivelo, Respondent, v Travelers Indemnity Company, Appellant.
    Submitted February 11, 2008;
    decided February 14, 2008
   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:
    Joan Haymon, Individually and as Mother and Natural Guardian of L.H., an Infant, Appellant, v Donald J. Pettit et al., Defendants, and Auburn Community Non-Profit Baseball Association, Inc., Respondent.
    Submitted December 31, 2007;
    decided February 14, 2008
   Motion for reargument denied [see 9 NY3d 324 (2007)].


text:
    Landau, P.C., as Successor, by Change of Name, to Morris J. Eisen, P.C., et al., Appellants, v Larossa, Mitchell & Ross, et al., Respondents.
    Submitted December 24, 2007;
    decided February 14, 2008
   Motion to dismiss the appeal herein denied.


text:
    Wendy Litwack, Appellant, v Plaza Realty Investors, Inc., et al., Respondents.
    Submitted February 4, 2008;
    decided February 14, 2008
   Motion by the New York State Trial Lawyers’ Association for leave to file a letter brief amicus curiae on the appeal herein granted and the letter brief is accepted as filed.


text:
    Penn Heights Beach Club, Inc., Appellant, v Nancy Myers et al., Respondents.
    Submitted December 17, 2007;
    decided February 14, 2008
   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, Appellant-Respondent, v Jean Yves Jean-Baptiste, Respondent-Appellant.
    Submitted February 11, 2008;
    decided February 14, 2008
   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-appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v John Malaussena, Appellant.
    Submitted February 11, 2008;
    decided February 14, 2008
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Patrick Munroe, Appellant.
    Submitted February 11, 2008;
    decided February 14, 2008
   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 Daniel Sparber, Appellant. The People of the State of New York, Respondent, v John Lingle, Appellant. The People of the State of New York, Respondent, v Robert Thomas, Appellant. The People of the State of New York, Respondent, v Manuel Rodriguez, Appellant. The People of the State of New York, Respondent, v Anthony Ware, Appellant.
    Submitted February 11, 2008;
    decided February 14, 2008
   Motion by Legal Aid Society of New York City for leave to file a brief amicus curiae on the appeals herein granted. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Kevin Pludeman et al., Respondents, v Northern Leasing Systems, Inc., et al., Appellants.
    Submitted February 11, 2008;
    decided February 14, 2008
   Motion by Chamber of Commerce of the United States of America for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    David S. Pultz et al., Appellants, v Catherine Economakis et al., Respondents.
    Submitted February 11, 2008;
    decided February 14, 2008
   Motion by Community Housing Improvement Program, Inc., et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and 24 copies filed within seven days.


text:
    David S. Pultz et al., Appellants, v Catherine Economakis et al., Respondents.
    Submitted February 11, 2008;
    decided February 14, 2008
   Motion by the Rent Stabilization Association of New York City, Inc. for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    In the Matter of Robert M. Restaino, as Judge of the Niagara Falls City Court, Niagara County, Petitioner. State Commission on Judicial Conduct, Respondent.
    Submitted February 11, 2008;
    decided February 14, 2008
   Judge Pigott taking no part.


text:
    [ 883 NE2d 352, 853 NYS2d 528]
    In the Matter of George P. Alessio, Jr., Appellant, v Paul G. Carey et al., Respondents.
    Argued February 8, 2008;
    decided February 15, 2008

      APPEARANCES OF COUNSEL

      Cote, Limpert & Van Dayke, LLP, Syracuse (Joseph S. Cote, III, of counsel), for appellant.

      Bruce R. Bryan, Syracuse, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed without costs and the case remitted to that Court for the consideration of issues raised, but not determined, on the appeal below.

Contrary to the Appellate Division’s view, Supreme Court did have subject matter jurisdiction over this special proceeding, brought pursuant to Election Law § 16-106 (5).

Petitioner was a candidate for Town Justice of the Town of Salina, supported by the Democratic and Working Families Parties. Respondent, who had the backing of the Republican, Independence, and Conservative Parties, was his opponent. The election was held on November 6, 2007. On November 13, the Board convened to canvass certain paper ballots, among them absentee ballots {see Election Law § 9-209). During that canvassing, the Board invalidated seven absentee ballots, five in favor of petitioner, because those ballots contained intentional, extrinsic marks (see Election Law § 9-112).

Petitioner’s representatives, who witnessed the November 13 canvassing, objected to the Board’s decision. The Board considered their objection, but determined that the five disputed absentee ballots should remain invalidated. As a result, respondent unofficially prevailed in the election by a two-vote plurality. On November 21, petitioner filed a verified petition, seeking an order to show cause that, among other things, would require the Board to demonstrate why a “recanvassing” of the seven invalidated absentee ballots should not be conducted. On November 28, the petition was personally served on respondent.

Election Law § 16-106 vests Supreme Court with subject matter jurisdiction in a proceeding “instituted” by a “candidate” to “contest[ ]” “[t]he casting or canvassing or refusal to cast . . . void or canvass absentee . . . ballots” (Election Law § 16-106 [1]), provided that it is brought “within twenty days” after the “election” or the Board’s “alleged erroneous . . . determination” (Election Law § 16-106 [5]). Here, the Board’s alleged erroneous determination was its invalidation of the seven absentee ballots on November 13 and petitioner instituted this proceeding within 20 days of that determination. Since petitioner complied with Election Law § 16-106 (5), Supreme Court was vested with subject matter jurisdiction over this proceeding and with the authority to “direct a recanvass or the correction of an error” (see Election Law § 16-106 [4]).

We disagree with the Appellate Division’s conclusion that our decisions in Testa v Ravitz (84 NY2d 893 [1994]) and Matter of Larsen v Canary (107 AD2d 809 [1985], affd for the reasons stated below 65 NY2d 634 [1985]) control here. Those cases held that Supreme Court “lacks jurisdiction to conduct its own canvass . . . and determine a winner before the Board of Elections has conducted its canvass” (see Testa, 84 NY2d at 895; see also Larsen, 107 AD2d at 810 [“A reversal is necessary because Special Term acted without jurisdiction in conducting a canvass of the ballots before the board of elections had conducted its canvass”]). In contrast, this case involves no such interference with the Board’s statutory authority to conduct a canvass in the first instance. It is undisputed that the canvass here was completed and thus, the above-cited precedents are inapposite.

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

Order reversed, etc.

       We note that Supreme Court may also have subject matter jurisdiction pursuant to Election Law § 16-106 (2), which authorizes a “voter” to “contest[ ]” the Board’s “canvass of returns.” Here, the petition alleges that petitioner “is now a qualified voter of Onondaga County ... in the . . . Town of Salina.” And it is undisputed that he is challenging the Board’s November 13 canvass.


text:
    [ 883 NE2d 363, 853 NYS2d 537]
    In the Matter of Javier R., an Infant. Robert R., Appellant; Administration for Children’s Services, Respondent, et al., Respondent.
    Decided February 19, 2008

      APPEARANCES OF COUNSEL

      Randall Carmel, Syosset, for appellant.

      Michael A. Cardozo, Corporation Counsel, New York City (Scott Shorr of counsel), for Administration for Children’s Services, respondent.

      Legal Aid Society, New York City (John A. Newbery of counsel), Law Guardian.

   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. Under the circumstances of this case, the dismissal of the underlying neglect proceeding on consent subsequent to the Appellate Division order rendered the appeal to this Court moot. Thus, we do not have occasion to pass on the propriety of the Appellate Division determination.

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


text:
    Ellen Bluth, Respondent, v Harvey Bluth, Appellant.
    Submitted January 14, 2008;
    decided February 19, 2008
   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 Board of Managers of the 225 East 57th Street Condominium, Appellant, v Campaniello Real Estate, Respondent.
    Submitted December 31, 2007;
    decided February 19, 2008
   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:
    Committee to Save St. Brigid’s Inc. et al., Appellants, v Edward Cardinal Egan et al., Respondents.
    Submitted February 4, 2007;
    decided February 19, 2008
   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 granted.


text:
    EFCO Corporation, Respondent, v Helena Associates LLC, Appellant, et al., Defendants.
    Submitted December 31, 2007;
    decided February 19, 2008
   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 City of Elmira et al., Respondents-Appellants, v John Doe, Appellant-Respondent.
    Submitted December 31, 2007;
    decided February 19, 2008
   Motion for leave to appeal by appellant-respondent John Doe granted. Cross motion for leave to appeal by respondents-appellants City of Elmira et al. dismissed as untimely.


text:
    In the Matter of Kevin Martin, Appellant, v Glenn S. Goord, as Commissioner of Correctional Services, Respondent. (And Another Related Proceeding.)
    Submitted February 11, 2008;
    decided February 19, 2008
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    John Moody, Respondent, v Svetlana Sorokina, Appellant.
    Submitted February 11, 2008;
    decided February 19, 2008
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    NYCTL 1999-1 Trust et al., Respondents, v 114 Tenth Avenue Assoc., Inc., Appellant, and Carlton Capital Corp., Intervenor-Respondent, et al., Defendants.
    Submitted February 4, 2008;
    decided February 19, 2008
   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:
    James Owen, Individually and as a Shareholder of Starpoint Publishing Corp., Appellant, v Lindsay Hamilton et al., Respondents.
    Submitted November 26, 2007;
    decided February 19, 2008
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v Robert Buss, Appellant.
    Submitted November 19, 2007;
    decided February 19, 2008
   Motion for leave to appeal granted. Motion for poor person relief granted.


text:
    The People of the State of New York ex rel. Alonzo Derrick, Appellant, v Warden, George Motchan Detention Center (Rikers Island), Respondent.
    Submitted February 11, 2008;
    decided February 19, 2008
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that relator has been released from custody 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:
    Helen Salichs, Appellant, v Warren James, Respondent.
    Submitted January 28, 2008;
    decided February 19, 2008
   Motion for reargument of motion for leave to appeal denied [see 9 NY3d 998 (2007)].


text:
    State of New York et al., Plaintiffs, v Clark E. McLeod, Defendant. McLeodUSA, Incorporated, Intervenor-Appellant; Eliot Spitzer, as Attorney General of the State of New York, Respondent.
    Submitted January 7, 2008;
    decided February 19, 2008
   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 (Karger, Powers of the New York Court of Appeals § 5:17, at 150 [3d ed rev]).


text:
    [ 883 NE2d 1008, 854 NYS2d 101]
    In the Matter of Robert Fehrman et al., Petitioners, v New York State Board of Elections et al., Respondents. (Proceeding No. 1.) In the Matter of Darrel Aubertine, Respondent, v Oswego County Independence Party Interim County Organization et al., Respondents, and New York State Committee of the Independence Party of New York et al., Appellants. (Proceeding No. 2.)
    Argued February 25, 2008;
    decided February 25, 2008

      APPEARANCES OF COUNSEL
    A. Joshua Ehrlich, Albany, for New York State Committee of the Independence Party of New York and others, appellants. John Ciampoli, Albany, for Will Barclay, appellant.

      Martin E. Connor, Brooklyn, for Darrel Aubertine, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be reversed, without costs, the proceeding to invalidate the nomination of Will Barclay dismissed and the injunction preventing the State Board and County Boards of Elections from placing Barclay’s name on the ballot vacated.

On the facts of this case, Darrel Aubertine, a nonmember of the Independence Party, lacked standing to challenge that party’s compliance with its own rules (see Matter of Nicolai v Kelleher, 45 AD3d 960 [3d Dept 2007]; Matter of Stempel v Albany County Bd. of Elections, 97 AD2d 647 [3d Dept 1983], affd 60 NY2d 801 [1983]). Although, at a point before the first of these proceedings began, Aubertine had a bona fide claim to be the Independence Party’s candidate for State Senator, events that preceded the start of the litigation eliminated any basis for such a claim. While Aubertine asserted in pleadings below that he was the Independence Party candidate, he promptly abandoned that assertion; he argued below and argues here that the Independence Party has not validly nominated any candidate. Under these circumstances, Aubertine is not an “aggrieved candidate” within the meaning of Election Law § 16-102.

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

Order, insofar as appealed from, reversed, etc.