text:
    [826 NE2d 796, 793 NYS2d 825]
    The People of the State of New York, Respondent, v Tracey Douglas, Appellant.
    Argued January 6, 2005;
    decided February 17, 2005

      APPEARANCES OF COUNSEL

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

      Robert M. Morgenthau, District Attorney, New York City (Karen Schlossberg and Patrick J. Hynes of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted, following a jury trial, of robbery in the first degree and two counts of robbery in the second degree. On October 15, 2000, four individuals, including a man armed with a knife, assaulted Sala Conyers. They stole her purse, which was later recovered, and other miscellaneous items that she was carrying on her person. Following the assault Conyers telephoned 911. She then canvassed the area with the responding police officers and identified defendant as one of her attackers. Conyers also identified the other three individuals involved in the assault.

Prior to defendant’s trial, one of his codefendants, Tanya Everts, pleaded guilty, though she was unavailable to testify against defendant at trial. Subsequently, the People used a redacted version of her plea allocution at defendant’s trial. The admission of the plea allocution into evidence was error. The Sixth Amendment of the United States Constitution requires the opportunity for cross-examination of testimonial statements as a precondition to their admissibility (see Crawford v Washington, 541 US 36 [2004]). Insofar as the plea allocution was a testimonial statement, not subject to cross-examination, the trial court erred in admitting the allocution (see People v Hardy, 4 NY3d 192 [2005] [decided today]). Contrary to the People’s argument, defense counsel’s timely and specific objection properly preserved this issue (see generally People v Gray, 86 NY2d 10 [1995]).

Errors resulting in a violation of a criminal defendant’s Sixth Amendment right to confrontation are subject to a constitutional harmless error analysis (see People v Eastman, 85 NY2d 265, 276 [1995]). Such errors are considered harmless when, in light of the totality of the evidence, there is no reasonable possibility that the error affected the jury’s verdict (see People v Crimmins, 36 NY2d 230, 240-241 [1975]).

While it was error to admit the allocution here, there was no reasonable possibility that the error contributed to defendant’s conviction. The victim’s testimony at trial described, in great detail, the sequence of events underlying the robbery. Immediately after the attack Conyers identified defendant as the individual who threatened her with a knife. She also provided a detailed description of the weapon he used in the attack, which police recovered from his person upon arrest, and later identified at trial. Furthermore, following Conyers’ identification of Everts as a coparticipant in the crime, Everts led the police to Conyers’ stolen property. In light of the victim’s testimony, and the independent corroboration by other evidence presented at trial, there was no reasonable possibility that the trial court’s erroneous admission of the redacted plea allocution influenced the jury’s verdict. The error was therefore harmless beyond a reasonable doubt.

Defendant’s remaining contention concerning the lower court’s Sandoval ruling is without merit.

Chief Judge Kaye and Judges G.B. Smith, Cipaeick, Rosenblatt, Geaffeo, Read and R.S. Smith concur.

Order affirmed in a memorandum.


source: Caselaw Access Project

author: R.S. Smith, J. (dissenting).

license: Public Domain

text:
    [826 NE2d 797, 793 NYS2d 826]
    The People of the State of New York, Respondent, v Katherine M. Seeber, Appellant.
    Argued January 13, 2005;
    decided February 17, 2005
    APPEARANCES OF COUNSEL

      Eugene P. Grimmick, Troy, for appellant.

      James A. Murphy, III, District Attorney, Ballston Spa (Nicholas E. Tishler of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

County Court did not abuse its discretion by denying defendant’s motion to withdraw her negotiated guilty plea to second-degree felony murder. Nothing in the record of the plea allocution called into question the voluntary, knowing and intelligent nature of defendant’s bargained-for plea (see People v Alexander, 97 NY2d 482, 485 [2002] [“Trial judges are vested with discretion in deciding plea withdrawal motions because they are best able to determine whether a plea is entered voluntarily, knowingly and intelligently”]). Defendant entered her plea after detailed cautionary warnings from County Court and extensive consultation with her counsel. In defendant’s motion to withdraw her plea, made only after a jury acquitted her codefendant against whom she had agreed to testify, she neither asserted innocence nor intimated that she received less than effective assistance from counsel (compare id.).

Focusing solely on an isolated portion of her allocution, defendant now claims that an element of the pleaded-to offense—that she had committed the burglary underlying the felony murder charge by “remain[ing] unlawfully”—was not established. In response to a question from the prosecutor, however, defendant expressly acknowledged having remained unlawfully.

In any event, we have never held that a plea is effective only if a defendant acknowledges committing every element of the pleaded-to offense (see People v Lopez, 71 NY2d 662, 666 n 2 [1988]), or provides a factual exposition for each element of the pleaded-to offense (compare People v Nixon, 21 NY2d 338, 350 [1967], cert denied sub nom. Robinson v New York, 393 US 1067 [1969]; see also People v Moore, 71 NY2d 1002, 1005 [1988]). Indeed, “we have said repeatedly that there is no requirement for a uniform mandatory catechism of pleading defendants” (People v Fiumefreddo, 82 NY2d 536, 543 [1993] [internal citations and quotation marks omitted]). Because nothing that defendant said or failed to say in her allocution negated any element of the offense to which she pleaded (see People v Lopez, 71 NY2d at 666 n 2) or otherwise called into question her admitted guilt or the voluntariness of her plea, she provided County Court with no basis for allowing the plea’s withdrawal (compare People v Ramos, 63 NY2d 640, 642-643 [1984] [when considering motion to withdraw a guilty plea, “the Judge to whom the motion to vacate is addressed should be entitled to rely on the record before him in order to insure that guilty pleas are accorded finality whenever possible”]).

R.S. Smith, J. (dissenting).

Except in the rare case of an Alford plea (North Carolina v Alford, 400 US 25 [1970]), a guilty plea should not be accepted unless the defendant admits that he or she is actually guilty of the offense charged. To decide whether defendant has made such an admission, an allocution should be read with the aid of common sense, and without dwelling unduly on technicalities (People v Lopez, 71 NY2d 662, 666 n 2 [1988]; People v Nixon, 21 NY2d 338 [1967]). Often, as in Nixon and several of the cases decided with it, this rule will lead courts to uphold guilty pleas, even where the allocution is tainted by a minor omission, or a trace of equivocation.

This case, in my view, presents the reverse situation: I think it is quite clear, from a commonsense reading of this plea allocution, that defendant did not admit to committing felony murder. Indeed, the record indicates that she did not commit that crime, though she may well have committed intentional murder (to which she did not plead guilty). Here a hyper-technical reading of the plea allocution is being used not to invalidate the plea but to rescue it from invalidity.

The crime to which defendant’s plea related was a violation of Penal Law § 125.25 (3), the felony murder statute, which applies where defendant has caused the death of another person in the course of one of the felonies listed in the statute; robbery and burglary are on the list, but larceny is not. The relevant count of the indictment charged that defendant and her codefendant “committed or attempted to commit robbery or burglaiy, and, in the course of and in furtherance of such crime(s) or of immediate flight therefrom, they, caused the death of Ruth M. Witter.”

The flaw in the allocution is that defendant failed to admit to either a robbery or a burglary. In defendant’s only description of what she did—what the majority calls an “isolated portion” of her allocution—she said:

“I went to my grandmother’s house with Jeffrey Hampshire. While we were there, we went outside, and he told me that he was going to steal from her. We went back inside. He told me that he was not going to do it, but as he went down the hall, he went back into the bedroom, and I thought that he was stealing from her, so I stood between where Jeff was and where my grandmother was and continued to talk with her in order for him not to be caught stealing from her, and in the course and in the furtherance of such crime, we caused the death of Ruth M. Witter later placing her body in Saratoga County.”

The “stealing” described in this statement is larceny, not robbery or burglary. Robbery is “forcible stealing” (Penal Law § 160.00) and the theft described in the allocution was a theft by stealth, not by force. A person is guilty of burglary who “knowingly enters or remains unlawfully in a building with intent to commit a crime therein” (Penal Law § 140.20). But, from all that appears in the allocution, defendant and her codefendant were lawfully present in her grandmother’s house. One might surmise from the allocution that the two offenders killed defendant’s grandmother after stealing her property. This is an appalling crime, but it is intentional murder, not felony murder.

The People claim, and the majority today agrees, that the defect in the allocution was cured, and that defendant admitted to burglary, in the following later exchange:

“[the prosecutor]: And that day, having gained entry to Miss [sic] Witter’s residence, did you remain in that residence unlawfully during the commission of the crime, and by that I mean, the stealing of the property and the causing of death of Mrs. Witter? . . .
“the defendant: Yes.”

If the above colloquy is read in a literal, technical way, and common sense is disregarded, the majority is right—defendant did admit to remaining unlawfully in her grandmother’s residence. But this is not a fair reading of the whole transcript, because “remains unlawfully” in the burglary statute has a legal meaning that most lay people would not understand. We interpreted those words in People v Gaines to refer to “unau thorized remaining in a building after lawful entry (as a shoplifter who remains on store premises after closing)” (74 NY2d 358, 362 [1989] [emphasis added]). We quoted in Gaines from the Practice Commentary to the burglary statute: “[t]he word ‘remain’ in the phrase ‘enter or remain’ is designed to be applicable to cases in which a person enters with ‘license or privilege’ but remains on the premises after termination of such license or privilege.” (Id., quoting Denzer and McQuillan, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law art 140 at 341-342 [1967].)

Thus, defendant here did not “remain unlawfully” in her grandmother’s house unless her grandmother asked her to leave and she refused. Nothing indicates that this 19-year-old defendant, when she answered “yes” to the prosecutor’s question, understood this technicality—and nothing either in the allocution or anywhere else in the record of this case suggests that any such request or refusal actually occurred.

In this context, the prosecutor’s choice to ask defendant about the legal conclusion—“Did you remain unlawfully?”—rather than ask the obvious factual question—“Did you stay in your grandmother’s house after being asked to leave?”—is a red flag. And I am not at all comforted—quite the reverse—by the majority’s observation that the prosecutor’s inquiry followed an off-the-record conference called to “fashion a question” (majority op at 781 n 1). Why was the best the prosecutor could do, after this brainstorming session, a legalistic question that seems designed to produce an incorrect answer? Why did no one suggest, in the off-the-record conference, that defendant be asked to state the facts supporting a robbery or burglary charge? Probably because no such facts existed. The best inference from the allocution, read as a whole, is that there was in fact no robbery, no burglary and no felony murder.

Because defendant’s allocution was defective, her plea should be set aside. We do not face here, as we often do, the question of whether the plea defect is so egregious that the normal rules of preservation do not apply (cf. People v Lopez, 71 NY2d 662 [1988]). Here, defendant preserved the point by moving to withdraw her plea before sentence, some 10 weeks after the plea was entered. We made clear in Lopez (71 NY2d at 666 n 2, quoting People v Nixon, 21 NY2d 330, 350 [1967]) that, even where preservation is absent, a plea that appears from the allocution to be “baseless” will not be upheld. The plea to felony murder appears to be baseless here.

The problem in this case may well be that defendant, facing a well-supported charge of intentional murder, was willing to plead guilty, but was not willing to admit that she intentionally killed her grandmother. The parties may have compromised by agreeing on a plea to felony murder—while trying to walk delicately around the difficult fact that no felony murder occurred. If that is the case, the result here does not offend any sense of fairness; the majority may be correct in saying that defendant’s plea was “voluntary, knowing and intelligent”—in the sense that she may have made a voluntary, knowing and intelligent choice to plead guilty to a crime she did not commit. But the law does not authorize this sort of shortcut to an equitable result.

The remedy when a defendant is prepared to plead guilty but is not prepared to admit his or her guilt is an Alford plea. We have said that “Alford pleas are—and should be—rare” because “Alford stands at the outer reaches” of our rules governing allocutions (Silmon v Travis, 95 NY2d 470, 474 n 1 [2000]). Such pleas are, however, permissible in New York (People v Alexander, 97 NY2d 482 [2002]; People v Francabandera, 33 NY2d 429 [1974]). To tolerate a contrived “admission” to a crime that probably never happened as a substitute for an Alford plea may produce an attractive result in a particular case, but it invites abuse in the future.

Accordingly, I dissent and vote to reverse defendant’s conviction.

Chief Judge Kaye and Judges Ciparick, Rosenblatt, Graffeo and Read concur; Judge R.S. Smith dissents and votes to reverse in an opinion in which Judge G.B. Smith concurs.

Order affirmed in a memorandum.

      . The dissent protests that defendant, a lay person, would not have understood what it meant to “remain unlawfully” in the sense of the burglary statute. This is supposition, an assertion without support in the record. Moreover, defense counsel, who presumably knew the technical legal meaning of “remain unlawfully,” advised and consulted with defendant throughout the plea proceeding. Indeed, after the prosecutor proposed asking defendant follow-up questions regarding the burglary underlying the indictment’s felony murder count, counsel requested time for an off-the-record discussion with defendant to fashion a question that “might satisfy” the prosecutor. When questioning resumed, the prosecutor posed only two questions, one of which dealt with remaining unlawfully. Defendant did not ask for the question to be repeated, as she had with a prior question. Nor did defendant request time to confer with counsel, which the trial court, in fact, offered her. After, as her counsel put it, “thinking” about the answer for a while, defendant instead unequivocally acknowledged that she had remained unlawfully.

      . Contrary to the dissent’s suggestion, the plea was far from baseless. Indeed, defendant entered it after County Court denied her motion to suppress confessions that she had made to the police. In her confessions, defendant acknowledged knowing that codefendant intended to steal from her grandmother (a fact that she reiterated during the allocution), and also that codefendant had indeed taken money and jewelry from her grandmother’s home. Given the confessions, it is certainly understandable that the People charged defendant with several crimes, including felony murder occurring during either a burglary or a robbery. Additionally, the confessions, especially in conjunction with defendant’s allocution, provided a more than ample basis for County Court to be assured that defendant was not entering a plea to a crime that she did not commit. Her guilt was abundantly clear, and she profited from a plea that she wanted and negotiated.


text:
    Courtroom Television Network LLC, Appellant, v State of New York et al., Respondents.
    Submitted January 31, 2005;
    decided February 17, 2005
   Motion by ABC, Inc. et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Courtroom Television Network LLC, Appellant, v State of New York et al., Respondents.
    Submitted January 31, 2005;
    decided February 17, 2005
   Motion by National Press Photographers Association et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Courtroom Television Network LLC, Appellant, v State of New York et al., Respondents.
    Submitted February 14, 2005;
    decided February 17, 2005
   Motion by New York State Association of Criminal Defense Lawyers for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Five additional copies of the brief may be filed within 10 days.


text:
    George Kralik et al., Appellants, v 239 East 79th Street Owners Corp., Respondent.
    Submitted January 24, 2005;
    decided February 17, 2005
   Motion by Eliot Spitzer, Attorney General of the State of New York, for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Eighteen additional copies of the brief may be filed and two additional copies served within 10 days.


text:
    In the Matter of Newsday, Inc., Respondent, v State Department of Transportation, Appellant.
    Submitted January 24, 2005;
    decided February 17, 2005
   Motion by City of New York for leave to appear amicus curiae on the appeal herein granted to the extent that the proposed brief is accepted as filed.


text:
    Charleen Palumbo, Respondent, v Robert Palumbo, Appellant.
    Submitted January 8, 2005;
    decided February 17, 2005
   Motion for leave to appeal dismissed upon the ground that it does not lie, appellant having previously moved in the Court of Appeals (3 NY3d 765 [2004]) from the same Appellate Division order and Supreme Court judgment from which he currently seeks leave to appeal (see Selinger v Selinger, 90 NY2d 842 [1997]). Motion for a stay dismissed as academic.


text:
    The People of the State of New York, Appellant, v Andrew H. Van Buren, Respondent. The People of the State of New York, Appellant, v Mary B. Jeanniton, Respondent.
    Submitted February 14, 2005;
    decided February 17, 2005
   Motion by City of New York for leave to appear amicus curiae on the appeals herein granted to the extent that the proposed brief is accepted as filed. Nineteen additional copies of the brief may be filed and two additional copies served within 10 days.


text:
    Xiao Yang Chen, Appellant, v Ian Ira Fischer, Respondent.
    Submitted December 20, 2004;
    decided February 17, 2005
   Motion by Women’s Bar Association of the State of New York for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    Xiao Yang Chen, Appellant, v Ian Ira Fischer, Respondent.
    Submitted December 27, 2004;
    decided February 17, 2005
   Motion by Sanctuary for Families’ Center for Battered Women’s Legal Services for leave to file an affirmation amicus curiae on the motion for leave to appeal herein granted and the affirmation is accepted as filed.


text:
    Xiao Yang Chen, Appellant, v Ian Ira Fischer, Respondent.
    Submitted December 27, 2004;
    decided February 17, 2005
   Motion by Association of the Bar of the City of New York for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    [828 NE2d 80, 795 NYS2d 164]
    In the Matter of Michael H. Feinberg.
    Decided February 22, 2005
   OPINION OF THE COURT

On the Court’s own motion, it is determined that Honorable Michael H. Feinberg is suspended with pay, effective immediately, from the office of Surrogate of Kings County, pending disposition of his request for review of a determination by the State Commission on Judicial Conduct.

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


text:
    [828 NE2d 80, 795 NYS2d 164]
    In the Matter of Anthony Ramirez, Respondent, v New York State Division of Human Rights, Appellant, and Aladdin Laminating, Inc., Respondent.
    Decided February 22, 2005
    APPEARANCES OF COUNSEL

      Michael K. Swirsky, Bronx, and Gina M. Lopez Summa for appellant.

      J.L. Engram & Associates, Bronx (Jimmie Engram of counsel), for Anthony Ramirez, respondent.

      Gary John Dmoch & Associates, Flushing (Gary J. Dmoch of counsel), for Aladdin Laminating, Inc., respondent.
   OPINION OF THE COURT

Memorandum.

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

Documents that were part of the administrative record, and are part of the appeal before us, specifically detail conferences between the Division and petitioner, and demonstrate that a meaningful investigation of petitioner’s complaint occurred. Based on that investigation, the Division’s finding of no probable cause was not arbitrary, capricious or lacking a rational basis (see Washington Sq. Inst, for Psychotherapy & Mental Health v New York State Human Rights Appeal Bd., 67 NY2d 699, 701 [1986]).

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, etc.


text:
    [828 NE2d 73, 795 NYS2d 157]
    Hon Fui Hui, Appellant, v East Broadway Mall, Inc., Respondent.
    Argued January 12, 2005;
    decided February 22, 2005

      APPEARANCES OF COUNSEL

      Morton S. Minsley, New York City, for appellant.

      Gartner, Bloom & Greiper, P.C., New York City (Arthur E Xanthos of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and East Broadway’s motion for summary judgment denied.

Although the statute of limitations had run for the commencement of an action based on the breach of the original contract—as work had been completed by 1989—East Broadway’s February 22, 1994 acknowledgment reflecting the amount of debt “outstanding to Ka Hon” was sufficient to satisfy General Obligations Law § 17-101 and take this “action out of the operation of the provisions of limitations of time for commencing actions” (General Obligations Law § 17-101). The writing “recognize[s] an existing debt and . . . contain[s] nothing inconsistent with an intention on the part of the debtor to pay it” (Lew Morris Demolition Co., Inc. v Board of Educ., 40 NY2d 516, 521 [1976] [citations omitted]). Plaintiff’s breach of contract action, commenced February 18, 2000, was thus timely within the six-year statute of limitations (see CPLR 213 [2]).

We agree with the Appellate Division that the cause of action properly belonged to Ka Hon Construction, which had been dissolved by proclamation but had an outstanding claim pending against it. We disagree that the assignment to plaintiff dated September 28, 2001 did not cure the defect. Plaintiff was the sole shareholder of Ka Hon and had a good faith belief that all corporate business had been completed when he commenced the action as Ka Hon’s successor-in-interest. When plaintiff became aware of the outstanding judgment, his assignment as sole shareholder of the cause of action to himself in order to correct the error and prosecute the claim should not have resulted in dismissal of the action as untimely. If the corporation instead had moved to intervene, it would have been permitted to do so, despite the expiration of the statute of limitations, because it was closely related to plaintiff and its claim was based on the same transaction. If the corporation had intervened, its claim would be deemed to relate back to plaintiff’s original claim. The assignment of the corporation’s claim was simply a less cumbersome way of achieving the same result, avoiding dismissal of what appears to be an otherwise meritorious claim.

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

Order reversed, etc.

       The corporation was dissolved September 28, 1994 and the outstanding judgment was filed January 29, 1996.


text:
    Ronald Anderson, Plaintiff, and Angel Cordero, Appellant, v W. Theodore Hill et al., Respondents.
    Submitted February 14, 2005;
    decided February 22, 2005
   Appeal, insofar as taken from the November 2004 order of the Appellate Division denying reargument or leave to appeal to the Court of Appeals, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that such order does not finally determine the action within the meaning of the Constitution; appeal otherwise 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 Niena Cooper-Winfield, Also Known as Niena Winfield, Respondent, v Herman Gary, Appellant.
    Submitted January 10, 2005;
    decided February 22, 2005
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Joseph F. McCarthy, Appellant, v Patricia J. McCarthy, Respondent.
    Submitted January 10, 2005;
    decided February 22, 2005
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed that part of Supreme Court’s order that awarded counsel fees to respondent, denied; motion for leave to appeal otherwise dismissed upon the ground that the remaining portion of the Appellate Division order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for a stay dismissed as academic.


text:
    Tokio Marine and Fire Insurance Co., Ltd., et al., Respondents, v Angelo Borgia et al., Appellants, et al., Defendant.
    Submitted January 18, 2005;
    decided February 22, 2005
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that dismissed the appeal from Supreme Court’s order denying appellants’ motion to renew, dismissed upon the ground that such portion of the Appellate Division order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    [828 NE2d 592, 795 NYS2d 490]
    Charles Reginald Montgomery, Jr., Appellant, v Federal Express Corporation et al., Respondents and Third-Party Plaintiffs-Respondents. Fortune Interior Dismantling Corp., Third-Party Defendant-Respondent, et al.,ThirdParty Defendants.
    Decided March 24, 2005
    APPEARANCES OF COUNSEL

      Pollack, Pollack, Isaac & De Cicco, New York City (Brian J. Isaac of counsel), for appellant.

      Geringer & Dolan LLP, New York City (John T. McNamara of counsel), for respondents.
    Third-party defendant-respondent precluded.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should he affirmed with costs.

Plaintiff, who was employed as a helper by an elevator company, and Peter Mazzei, an elevator mechanic, were assigned to do work in an elevator “motor room” located some four feet above the roof level of a building. Arriving on the roof, plaintiff and Mazzei found that stairs that had previously led from the roof to the motor room had been removed. There was no ladder in the immediate vicinity, but ladders were available at the job site.

Rather than go and get a ladder, plaintiff and Mazzei climbed to the motor room by standing on an inverted bucket. When he left the motor room, plaintiff jumped down to the roof, injuring his knee in the process.

We agree with the Appellate Division that, since ladders were readily available, plaintiff’s “normal and logical response” should have been to go get one. Plaintiffs choice to use a bucket to get up, and then to jump down, was the sole cause of his injury, and he is therefore not entitled to recover under Labor Law § 240 (1) (Blake v Neighborhood Hous. Servs. of NY. City, 1 NY3d 280 [2003]).

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.


text:
    [828 NE2d 958, 796 NYS2d 1]
    The People of the State of New York, Respondent, v Kenneth Smith, Appellant.
    Decided March 24, 2005

      APPEARANCES OF COUNSEL

      Edward J. Nowak, Public Defender, Rochester (Timothy P. Donaher of counsel), for appellant.

      Michael C. Green, District Attorney, Rochester (Michael J. Nolan of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Following indictment, defendant moved under CPL 210.30 (1) to inspect the grand jury minutes and dismiss the indictment on the ground that “[t]he evidence before the grand jury was not legally sufficient to establish the offense[s] charged” (CPL 210.20 [1] [b]). After reviewing the transcript of the grand jury proceeding, Supreme Court found that the evidence presented to the grand jury was, in fact, sufficient. In a decision and order to this effect, Supreme Court also pointed out that the indictment stated that the charged crimes occurred on a date other than the date appearing in the minutes, and invited the People to make an application to modify the indictment accordingly. Defendant renewed his motion to dismiss the indictment for legal insufficiency. Supreme Court held a hearing to inquire into the discrepancy between the dates, ultimately concluding that the minutes contained a simple typographical error. A jury subsequently convicted defendant of several of the crimes charged.

Defendant insists that Supreme Court was required to dismiss the indictment under these circumstances. Because Supreme Court conducted the hearing in the context of defendant’s CPL 210.30 motion to inspect and dismiss, defendant has not presented us with a reviewable issue. Specifically, CPL 210.30 (6) provides that “[t]he validity of an order denying any motion made pursuant to this section is not reviewable upon an appeal from an ensuing judgment of conviction based upon legally sufficient trial evidence.” Defendant does not challenge the legal sufficiency of the trial evidence.

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

Order affirmed in a memorandum.


text:
    In the Matter of Blossom View Nursing Home, Appellant, v Antonia C. Novello, M.D., as Commissioner of Health of State of New York, et al., Respondents.
    Submitted March 14, 2005;
    decided March 24, 2005
   Motion by New York Association of Homes and Services for the Aging for leave to appear amicus curiae on the appeal herein granted to the extent that the proposed brief is accepted as filed.


text:
    Courtroom Television Network LLC, Appellant, v State of New York et al., Respondents.
    Submitted February 28, 2005;
    decided March 24, 2005
   Motion by New York State Bar Association for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief may be served and 20 copies filed within 10 days.


text:
    In the Matter of Peter Diorio, Appellant, v City of Peekskill Common Council, Respondent.
    Submitted January 24, 2005;
    decided March 24, 2005
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and is not an order of the type provided for in CPLR 5602 (a) (2).


text:
    In the Matter of KSLM-Columbus Apartments, Inc., Respondent, v New York State Division of Housing and Community Renewal et al., Appellants.
    Submitted March 14, 2005;
    decided March 24, 2005
   Motion by New York State Tenants & Neighborhood Coalition, Inc. et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    In the Matter of KSLM-Columbus Apartments, Inc., Respondent, v New York State Division of Housing and Community Renewal, Appellants.
    Submitted February 28, 2005;
    decided March 24, 2005
   Motion by Community Service Society of New York et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    In the Matter of Metro Envero Transfer, LLC, Appellant, v Village of Croton-On-Hudson et al., Respondents.
    Submitted March 21, 2005;
    decided March 24, 2005
   Motion by New York Conference of Mayors and Municipal Officials for leave to file a brief amicus curiae on the appeal herein granted. Three copies of the brief may be served and 20 copies filed within 10 days.


text:
    In the Matter of George Pantelidis, Respondent, v New York City Board of Standards and Appeals et al., Appellants, and Joseph E. Sheehan et al., Intervenors-Appellants.
    Submitted January 31, 2005;
    decided March 24, 2005
   Motions for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and is not an order of the type provided for in CPLR 5602 (a) (2).


text:
    The People of the State of New York, Respondent, v Andrew Goldstein, Appellant.
    Submitted March 21, 2005;
    decided March 24, 2005
   Motion for assignment of counsel granted and Laura Johnson, Esq., Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Craig Lewis, Appellant.
    Submitted February 22, 2005;
    decided March 24, 2005
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Corby Norcott, Appellant.
    Submitted March 7, 2005;
    decided March 24, 2005
   Motion for assignment of counsel granted and Laura Johnson, Esq., Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Kenneth J. Paulman, Appellant.
    Submitted February 28, 2005;
    decided March 24, 2005
   Motion for assignment of counsel granted and John E. Tyo, Esq., care of Zimmerman & Tyo, 6 East Main Street, PO. Box 7, Shortsville, New York 14548 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Appellant, v Andrew H. Van Buren, Respondent. The People of the State of New York, Appellant, v Mary B. Jeanniton, Respondent.
    Submitted March 21, 2005;
    decided March 24, 2005
   Motion by City of New York for leave to participate in oral argument on the appeals herein granted.


text:
    The People of the State of New York, Appellant, v Andrew H. Van Burén, Respondent. The People of the State of New York, Appellant, v Mary B. Jeanniton, Respondent.
    Submitted February 28, 2005;
    decided March 24, 2005
   Motion by Eliot Spitzer, Attorney General of the State of New York, for leave to file a brief amicus curiae on the appeals herein granted and the proposed brief is accepted as filed.


text:
    The People of the State of New York ex rel. Frank Sacco, Appellant, v Gary Greene, as Superintendent of Great Meadow Correctional Facility, Respondent.
    Submitted February 7, 2005;
    decided March 24, 2005
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


text:
    Vivian Scarangella et al., Respondents, v Anthony Laborde, Also Known as Abdul Majid, Appellant, and Eliot Spitzer, Intervenor-Respondent.
    Submitted January 14, 2005;
    decided March 24, 2005
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution. Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Jo’Ell Sheppard-Mobley et al., Respondents, v Leslie King et al., Appellants.
    Submitted February 22, 2005;
    decided March 24, 2005
   Motion by Beth IsraehMedical Center et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Jo’Ell Sheppard-Mobley et al., Respondents, v Leslie King et al., Appellants.
    Submitted February 22, 2005;
    decided March 24, 2005
   Motion by New York City Health and Hospitals Corporation for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Jo’Ell Sheppard-Mobley et al., Respondents, v Leslie King et al., Appellants.
    Submitted March 7, 2005;
    decided March 24, 2005
   Motion by Combined Coordinating Council, Inc. for leave to appear amicus curiae on the appeal herein granted to the extent that the proposed brief is accepted as filed.


text:
    Jo’Ell Sheppard-Mobley et al., Respondents, v Leslie King et al., Appellants.
    Submitted March 7, 2005;
    decided March 24, 2005
   Motion by Medical Society of the State of New York et al. for leave to appear amici curiae on the appeal herein granted to the extent that the proposed brief is accepted as filed.


text:
    Jo’Ell Sheppard-Mobley et al., Respondents, v Leslie King et al., Appellants.
    Submitted March 14, 2005;
    decided March 24, 2005
   Motion by New York State Trial Lawyers Association, Inc. for leave to appear amicus curiae on the appeal herein granted to the extent that the proposed brief is accepted as filed.


text:
    Jo’Ell Sheppard-Mobley et al., Respondents, v Leslie King et al., Appellants.
    Submitted March 7, 2005;
    decided March 24, 2005
   Motion by New York and Presbyterian Hospital et al. for leave to appear amici curiae on the appeal herein granted to the extent that the proposed brief is accepted as filed.


text:
    In the Matter of Larry Williams, Appellant, v Brion D. Travis, as Chair of the New York State Board of Parole, Respondent.
    Submitted January 3, 2005;
    decided March 24, 2005
   Motion for leave to appeal dismissed upon the ground that the issues presented have become moot. Motion for poor person relief dismissed as academic.


text:
    [829 NE2d 1187, 797 NYS2d 19]
    The People of the State of New York, Respondent, v Bedros Yavru-Sakuk, Appellant.
    Decided March 29, 2005
    APPEARANCES OF COUNSEL

      Law Offices of Sarita Kedia, New York City (Sarita Kedia and Shannon Michaels of counsel), for appellant.

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

Memorandum.

The order of the Appellate Term should be modified by remitting to Criminal Court for further proceedings in accordance with this memorandum and, as so modified, affirmed.

This case is before us for a second time. Defendant, a dentist, was convicted of sexual abuse of his patient. On the prior appeal, we reversed a determination by the Appellate Term that a proper review could not be made because of the loss of a tape recording of a telephone call between the victim and the defendant and remitted the matter for the parties to brief, and for the Appellate Term to determine, if effective review was possible without the tape (People v Yavru-Sakuk, 98 NY2d 56 [2002]). Subsequently, the tape recording was found and the Appellate Term reviewed the case on its merits.

The majority at the Appellate Term affirmed the conviction, holding that the evidence was legally sufficient to establish sexual abuse in the third degree. With respect to defendant’s argument that the People were required to turn over the entire diary of the victim’s mother rather than two pages written in Turkish, Appellate Term held that defendant had not shown, pursuant to CPL 240.75, that the remainder of the diary would have established a reasonable possibility that the result would have been different. The dissent at the Appellate Term concluded that, at the least, the court should have conducted an in camera inspection to see if there was additional Rosario material.

On this appeal, defendant contends that he had a right to review the diary for possible entries subsequent to the date of the alleged sexual abuse since the victim’s mother and other family members continued to visit him professionally after that date. The People contend that they were justified in relying on the representation of the mother that no other portion of the diary was relevant and that, though the diary was in their possession, the People had no obligation to have it translated and review it themselves.

In relying on the representation of the People that no other portion of the diary was relevant, when the People themselves had not reviewed the diary, the Appellate Term erred.

We modify by remitting to the trial court for an in camera inspection as to whether any other portion of the diary is relevant (People v Adger, 75 NY2d 723 [1989]). If it does find some relevant portion, the trial court should also determine whether the admission of that portion of the diary would lead to the conclusion “that there is a reasonable possibility that the nondisclosure materially contributed to the result of the trial” (CPL 240.75). If so, the relevant portions of the diary should be turned over to the defendant, and a new trial ordered. Otherwise, if the nondisclosure did not materially contribute to the judgment, the judgment of conviction should be amended to reflect that result.

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

       The People contend that, in addition to the two pages referred to in their brief, defendant received another page at trial and was given an opportunity to go over that page with a Turkish interpreter. In addition, the People contend that when defendant’s attorney appeared at the office of the prosecution with an interpreter, to review two pages, counsel took the opportunity to review the entire diary, which was then in the hands of the prosecution.


text:
    [829 NE2d 665, 796 NYS2d 573]
    John Slate, Respondent, v Schiavone Construction Company, Appellant.
    Decided March 29, 2005

      APPEARANCES OF COUNSEL

      Wilson, Elser, Moskowtiz, Edelman & Dicker LLP, New York City (Richard E. Lerner of counsel), for appellant.

      Cascione Purcigliotti & Galluzzi, PC., New York City (Thomas G. Cascione of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, defendant’s motion to dismiss the complaint granted and the certified question answered in the negative. In view of the extreme lack of diligence shown by plaintiff, and the long delay (more than a year and a half after running of the statute of limitations) before defendant received any notice of the action, the courts below abused their discretion in granting plaintiff an extension to serve defendant “in the interest of justice” pursuant to CPLR 306-b (see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 105-106 [2001]).

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, etc.


text:
    In the Matter of Lugman Abdullah, Appellant, v Edward R. Donnelly et al., Respondents.
    Submitted February 7, 2005;
    decided March 29, 2005
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Robert Gray et al., on Behalf of Themselves and All Others Similarly Situated, Appellants, v Seaboard Securities, Inc., et al., Respondents.
    Submitted March 7, 2005;
    decided March 29, 2005
   Motion by Investor Rights Project of Albany Law School’s Clinical Studies Program for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    In the Matter of Shawn Green, Appellant, v Judith Hard, as Judge of the Court of Claims, Respondent.
    Submitted February 22, 2005;
    decided March 29, 2005
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Michael McKown, Respondent, v Anita Barnes, Also Known as Anita Van Coppenolle, Appellant.
    Submitted February 14, 2005;
    decided March 29, 2005
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Angel Morales, Appellant, v New York State Division of Parole, Respondent.
    Submitted February 28, 2005;
    decided March 29, 2005
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Third Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).


text:
    Muriel Siebert & Co., Inc., Respondent, v Intuit, Inc., Appellant.
    Submitted February 22, 2005;
    decided March 29, 2005
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    In the Matter of Andrew J. Spano, as County Executive of the County of Westchester, et al., Appellants, v Antonia C. Novello, as Commissioner of Health, et al., Respondents.
    Submitted January 31, 2005;
    decided March 29, 2005
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    Matthew L. Van Coppenolle, Respondent, v Anita Van Coppenolle, Also Known as Anita Barnes, Appellant.
    Submitted February 14, 2005;
    decided March 29, 2005
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Xao He Lu, Appellant, v Steven B. Ross, Respondent.
    Submitted March 7, 2005;
    decided March 29, 2005
   Appeal, insofar as taken from the Appellate Division order denying appellant’s motion for reconsideration, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that such order does not finally determine the action within the meaning of the Constitution; appeal otherwise dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    [829 NE2d 668, 796 NYS2d 575]
    In the Matter of Paul C. Maggio, Doing Business as Patchogue Nursing Center, Respondent, v Barbara A. DeBuono, as Commissioner of Health of the State of New York, et al., Appellants.
    Decided March 31, 2005
    APPEARANCES OF COUNSEL

      Eliot Spitzer, Attorney General, New York City (Carol Fischer of counsel), for appellants.

      Hamburger, Maxson, Yaffe, Wishod & Knauer, LLP, Melville (David N Yaffe of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and the petition dismissed in its entirety.

The Department of Health’s reclassification of certain “restorative therapy” patients at a residential health care facility who showed no actual improvement as “maintenance therapy” patients was neither arbitrary nor capricious (see Matter of El-cor Health Servs. v Novello, 100 NY2d 273 [2003]).

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order, insofar as appealed from, reversed, etc.


text:
    [830 NE2d 249, 797 NYS2d 351]
    The People of the State of New York, Respondent, v Antonio McClemore, Appellant.
    Decided March 31, 2005

      APPEARANCES OF COUNSEL

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

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

Memorandum.

The order of the Appellate Division should be affirmed.

CPL 530.13 (4) provides a court with discretion to enter an order of protection “[u]pon conviction of any offense.” When a defendant is convicted of a felony, “[t]he duration of such an order shall be fixed by the court and . . . shall not exceed the greater of: (i) five years from the date of such conviction, or (ii) three years from the date of the expiration of the maximum term of an indeterminate or the term of a determinate sentence of imprisonment actually imposed” (CPL 530.13 [4]).

Here, defendant pleaded guilty to the felony of first-degree kidnapping (see Penal Law § 135.25). County Court imposed an indeterminate term of imprisonment of 15 years to life, and also entered an order of protection in favor of the kidnapping victim. The trial court wanted the order to remain in effect for the maximum duration permitted by CPL 530.13 (4)—three years from the date of expiration of defendant’s life sentence—but obviously could not know how long defendant would live. County Court resolved this dilemma by setting an expiration date of July 25, 2101, or 100 years after the date of sentencing. We reject defendant’s claim that County Court erred in so doing.

As we have previously observed, the purpose of fixing expiration dates in orders of protection is “to provide certainty for defendants, the protected victims and witnesses, and law enforcement authorities who may be called to enforce” the orders (People v Nieves, 2 NY3d 310, 317 [2004]). The expiration date established here fulfills that purpose, while allowing County Court to exercise its discretion to issue what is, in effeet, a lifetime order of protection, which affords the kidnapping victim the utmost safety and peace of mind.

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

Order affirmed in a memorandum.

       After the sentencing proceeding in this case, the Legislature amended CPL 530.13 to provide explicitly that “[a]n order of protection issued under this section shall plainly state the date that such order expires” (see CPL 530.13 [5]; L 2002, ch 462).


text:
    Courtroom Television Network LLC, Appellant, v State of New York et al., Respondents.
    Submitted March 28, 2005;
    decided March 31, 2005
   Motion by New York State Defenders Association for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Courtroom Television Network LLC, Appellant, v State of New York et al., Respondents.
    Submitted March 28, 2005;
    decided March 31, 2005
   Motion by Richard J. Sexton, Esq. for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Nineteen additional copies of the brief may be filed within 10 days.


text:
    Liberto Diaz et al., Appellants, v Blasina Rodriguez, Also Known as Blasina Ortiz, Respondent.
    Submitted February 7, 2005;
    decided March 31, 2005
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    Christopher E. DiPasquale, Appellant, v Security Mutual Life Insurance Company of New York et al., Respondents.
    Submitted February 28, 2005;
    decided March 31, 2005
   Motion to dismiss appeal granted and appeal dismissed, with $400 costs and $100 costs of motion, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Daniel Hernandez et al., Respondents, v Victor L. Robles, Appellant.
    Submitted March 7, 2005;
    decided March 31, 2005
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, First Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).

Judge R.S. Smith taking no part.


text:
    Christopher Hiraldo et al., Appellants, v Allstate Insurance Company, Respondent, et al., Defendants.
    Submitted March 28, 2005;
    decided March 31, 2005
   Motion by Levy, Phillips & Konigsberg, LLP for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    In the Matter of New York City Asbestos Litigation. Elizabeth Holdampf et al., Respondents, v A.C. & S., Inc., et al., Defendants, and Port Authority of New York and New Jersey, Appellant.
    Submitted March 28, 2005;
    decided March 31, 2005
   Motion by Coalition for Litigation Justice Inc. et al. for leave to file a brief amici curiae on the appeal herein granted. Three copies of the brief may be served and 20 copies filed within 20 days.


text:
    The People of the State of New York, Respondent, v Alvaro Carvajal, Appellant.
    Submitted March 28, 2005;
    decided March 31, 2005
   Motion for poor person relief denied without prejudice to renewal of the motion within 30 days upon detailed submissions by appellant showing assets or income available to him (CPLR 1101 [a]).


text:
    The People of the State of New York, Appellant, v Garth M. Hill, Respondent.
    Submitted February 28, 2005;
    decided March 31, 2005
   Motion for assignment of counsel granted and Thomas W. Ryan, Esq., 1200 Hills Building, 217 Montgomery Street, Syracuse, New York 13202 assigned as counsel to the respondent on the appeal herein.


text:
    The People of the State of New York ex rel. DeAndre Williams, Also Known as David Williams, Appellant, v The People of the State of New York, Respondent.
    Submitted February 7, 2005;
    decided March 31, 2005
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Sylvia Samuels et al., Appellants, v New York State Department of Health et al., Respondents.
    Submitted March 7, 2005;
    decided March 31, 2005
   Appeals from the order and the judgment of Supreme Court transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Third Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2J; § 5 [b]; CPLR 5601 [b] [2]).

Judge R.S. Smith taking no part.


text:
    In the Matter of Sanel V., a Child Alleged to be Abused and Neglected. Administration for Children’s Services, Respondent; Sefija V., Respondent; Murdija V., Appellant. (Proceeding No. 1.) (And Another Related Proceeding.) (Proceeding No. 2.)
    Submitted March 28, 2005;
    decided March 31, 2005
   Motion for assignment of counsel denied without prejudice to renewal of the motion within 30 days upon detailed submissions by appellant showing assets or income available to her (CPLR 1101 [a]).


text:
    Michael Zafran, Appellant, v Lisa Zafran, Respondent.
    Submitted February 14, 2005;
    decided March 31, 2005
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for a preference dismissed as academic.


text:
    [830 NE2d 267, 797 NYS2d 369]
    Angel Rivera, Respondent, v 2160 Realty Co., L.L.C., Appellant.
    Decided April 5, 2005

      APPEARANCES OF COUNSEL

      Fiedelman & McGaw, Jericho (Dawn C. DeSimone of counsel), for appellant.

      Robert Weiss, New York City, for respondent.

      William D. Fireman, P.C., New York City (William D. Fireman of counsel), for New York State Trial Lawyers Association, amicus curiae.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, the certified question answered in the affirmative and defendant’s motion for summary judgment granted.

In this slip and fall case, tenant failed to raise a triable issue of fact on the issue of whether the landlord had constructive notice on any theory of a dangerous condition in the stairwell. Tenant asserted that while descending the steps at 5:00 a.m., he tripped over a beer bottle. Yet he acknowledged that the bottle was not on the steps at 8:30 p.m. the night before and no evidence was offered indicating that the landlord was notified of the debris that night or that the bottle was present for a sufficient period of time that defendant’s employees had an opportunity to discover and remedy the problem (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]). “[0]n the evidence presented, the [beer bottle] that caused plaintiffs fall could have been deposited there only minutes or seconds before the accident and any other conclusion would be pure speculation” (id. at 838).

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, etc.


text:
    [833 NE2d 191, 800 NYS2d 48]
    Nobu Next Door, LLC, Plaintiff, and Nobu Corp., Appellant, v Fine Arts Housing, Inc., Respondent.
    Decided April 5, 2005

      APPEARANCES OF COUNSEL

      Wagner Davis, P.C., New York City (Bonnie Reid Berkow of counsel), for appellant.

      Borah, Goldstein, Altschuler, Schwartz & Nahins, P.C., New York City (Jeffrey R. Metz of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

The decision to grant or deny provisional relief, which requires the court to weigh a variety of factors, is a matter ordinarily committed to the sound discretion of the lower courts. Our power to review such decisions is thus limited to determining whether the lower courts’ discretionary powers were exceeded or, as a matter of law, abused (Doe v Axelrod, 73 NY2d 748, 750 [1988]). The party seeking a preliminary injunction must demonstrate a probability of success on the merits, danger of irreparable injury in the absence of an injunction and a balance of equities in its favor (see CPLR 6301; see generally Doe, 73 NY2d at 750).

Here, in addition to a Yellowstone injunction, plaintiff Nobu Corp. also sought a preliminary injunction tolling its time to exercise the renewal option in its lease (see Waldbaum, Inc. v Fifth Ave. of Long Is. Realty Assoc., 85 NY2d 600 [1995]; First Natl. Stores v Yellowstone Shopping Ctr., 21 NY2d 630 [1968]). The Appellate Division considered appropriate equitable factors in determining that the balance of the equities did not tip in Nobu Corp.’s favor. Accordingly, that Court did not exceed or abuse its equitable powers in vacating the preliminary injunction.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order, insofar as appealed from, affirmed, etc.


text:
    [833 NE2d 191, 800 NYS2d 48]
    In the Matter of New York Central Mutual Fire Insurance Company, Respondent, v Stephanie Drasgow, Appellant.
    Decided April 5, 2005

      APPEARANCES OF COUNSEL

      Chelus, Herdzik, Speyer, Monte & Pajak, PC., Buffalo (Thomas P. Kawalec of counsel), for appellant.

      Brown & Kelly, LLP, Buffalo (<Joseph M. Schnitter of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, with costs, petition to vacate the arbitration award denied and petition to confirm the arbitration award granted, for the reasons stated in the dissenting memorandum at the Appellate Division (12 AD3d 1038, 1039-1040), and matter remitted to Supreme Court, Erie County, for consideration of appellant’s claim for attorneys’ fees.

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


text:
    Valiere Alcena, Appellant, v Empire Blue Cross and Blue Shield et al., Respondents, et al., Defendants.
    Submitted February 28, 2005;
    decided April 5, 2005
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that, affirmed Supreme Court’s order denying appellant’s discovery motion, 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:
    Ascot Realty LLC, Appellant, v Dr, Geoffrey Richstone, Respondent.
    Submitted February 22, 2005;
    decided April 5, 2005
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion for leave to appeal from the order of the Appellate Division entered in this proceeding commenced in the Civil Court of the City of New York (see NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]).


text:
    Bankers Trust Company of California, N.A., Respondent, v Chaggrit Sawangkao, Appellant, et al., Defendants.
    Submitted March 7, 2005;
    decided April 5, 2005
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that dismissed the appeal from the judgment of foreclosure and sale, dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion from the Appellate Division order dismissing the appeal to that Court from a determination entered on default (see CPLR 5511); motion for leave to appeal otherwise dismissed upon the ground that the remaining portion of the Appellate Division order does not finally determine the action within the meaning of the Constitution.


text:
    Bank of New York, Respondent, v Norilsk Nickel et al., Respondents, and Monter Joint Stock Company, Appellant.
    Submitted February 28, 2005;
    decided April 5, 2005
   Motion to dismiss appeal granted and appeal dismissed, with $400 costs and $100 costs of motion, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Best Payphones, Inc., Appellant, v Department of Information Technology and Telecommunications of City of New York, Respondent.
    Submitted March 14, 2005;
    decided April 5, 2005
   Motion to strike granted to the extent of deeming stricken petitioner’s order to show cause for reargument and renewal and material in support thereof and references thereto in petitioner’s brief. Cross motion to amend appellant’s brief denied.


text:
    In the Matter of Alfred C. Blanche, Appellant, v Donald Selsky, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
    Submitted February 7, 2005;
    decided April 5, 2005
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


text:
    Eastbrook Caribe, A.V.V., Appellant, v Fresh Del Monte Produce, Inc., et al., Respondents, et al., Defendants.
    Submitted February 22, 2005;
    decided April 5, 2005
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Supreme Court’s orders denying reargument and leave to serve an amended 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:
    Tamar Loper, Appellant, v State of New York, Respondent.
    Submitted March 14, 2005;
    decided April 5, 2005
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Meghan H., a Neglected Child. St. Lawrence County Department of Social Services, Respondent; Sherry H., Appellant.
    Submitted March 28, 2005;
    decided April 5, 2005
   Motion for leave to appeal dismissed upon the ground that no appeal lies from the Appellate Division order dismissing the appeal to that Court from the order entered upon default (see CPLR 5511).


text:
    The People of the State of New York, Appellant, v Andrew H. Van Buren, Respondent The People of the State of New York, Appellant, v Mary B. Jeanniton, Respondent.
    Submitted April 4, 2005;
    decided April 5, 2005
   Motion by Coalition of Watershed Towns for leave to appear amicus curiae on the appeals herein granted to the extent that the proposed brief is accepted as filed.


text:
    The People of the State of New York ex rel. David A. Thigpen, Appellant, v Michael E. Giambruno et al., Respondents.
    Submitted March 7, 2005;
    decided April 5, 2005
   Motion for leave to appeal dismissed upon the ground that the document from which leave to appeal is sought does not constitute an order or judgment appealable to the Court of Appeals (see NY Const, art VI, § 3; CPLR 5602). Motion for poor person relief dismissed as academic.


text:
    In the Matter of Pine Knolls Alliance Church, Respondent, v Zoning Board of Appeals of the Town of Moreau, Appellant.
    Submitted April 4, 2005;
    decided April 5, 2005
   Motion by the Association of Towns of the State of New York for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    [833 NE2d 1196, 800 NYS2d 521]
    In the Matter of Richard Guertin.
    Decided April 28, 2005
   OPINION OF THE COURT

On the Court’s own motion, it is determined that the suspension of Honorable Richard Guertin from his office of Judge of the Middletown City Court, Orange County, imposed by order of this Court dated September 14, 2004, is hereby terminated.

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


text:
    Courtroom Television Network LLC, Appellant, v State of New York et al., Respondents.
    Submitted April 18, 2005;
    decided April 28, 2005
   Motion by Clear Channel Communications, Inc. for leave to appear amicus curiae on the appeal herein granted to the extent that the proposed brief is accepted as filed.


text:
    In the Matter of Newsday, Inc., Respondent, v State Department of Transportation, Appellant.
    Submitted April 18, 2005;
    decided April 28, 2005
   Motion by Daily News, L.E et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    In the Matter of Lasyah M. Palmer, Appellant, v New York State Department of Correctional Services, Respondent.
    Submitted March 21, 2005;
    decided April 28, 2005
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York, Respondent, v Joan Bongarzone-Suarrcy, Appellant.
    Submitted April 4, 2005;
    decided April 28, 2005
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v James Jacobs, Appellant.
    Submitted April 11, 2005;
    decided April 28, 2005
   Motion for assignment of counsel granted and Laura Johnson, Esq., Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Elvis Lopez, Appellant.
    Submitted April 25, 2005;
    decided April 28, 2005
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 45 West 45th Street, 7th Floor, New York, NY 10036 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Appellant, v Christopher Rodriguez, Respondent.
    Submitted April 4, 2005;
    decided April 28, 2005
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the respondent on the appeal herein.


text:
    The People of the State of New York, Respondent, v Santos Suarez, Appellant.
    Submitted April 25, 2005;
    decided April 28, 2005
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Appellant, v Jason Williams, Respondent.
    Submitted April 18, 2005;
    decided April 28, 2005
   Motion by New York State Association of Criminal Defense Lawyers for leave to appear amicus curiae on the appeal herein granted to the extent that the proposed brief is accepted as filed.


text:
    The People of the State of New York, Appellant, v Jason Williams, Respondent.
    Submitted April 25, 2005;
    decided April 28, 2005
   Motion by Legal Aid Bureau of Buffalo, Inc. and New York State Defenders Association for leave to join the amicus curiae brief previously filed by New York State Association of Criminal Defense Lawyers and to participate in oral argument on the appeal herein granted in each respect.


text:
    The People of the State of New York, Appellant, v Jason Williams, Respondent.
    Submitted April 25, 2005;
    decided April 28, 2005
   Motion by District Attorneys Association of the State of New York for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    [831 NE2d 408, 798 NYS2d 351]
    Sonny Boy Realty, Inc., Respondent, v City of New York, Appellant.
    Argued March 30, 2005;
    decided May 3, 2005

      APPEARANCES OF COUNSEL

      Michael A. Cardozo, Corporation Counsel, New York City {Julian L. Kalkstein and Larry A. Sonnenshein of counsel), for appellant.

      Gennet, Kallman, Antin & Robinson, P.C., New York City (Brian J. Bolán and Mark L. Antin of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, and certified question answered in the affirmative. We agree with the Appellate Division that the lease imposed an obligation on the tenant to make repairs necessitated by its own negligence or the negligence of its invitees.

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


text:
    [831 NE2d 407, 798 NYS2d 350]
    The People of the State of New York, Respondent, v James Combest, Appellant. Hybrid Films, Inc., Proposed Intervenor.
    Decided May 3, 2005

      APPEARANCES OF COUNSEL

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

      Charles J. Hines, District Attorney, Brooklyn (Shulamit Rosenblum of counsel), for respondent.

      Levine Sullivan Koch & Schulz, L.L.P., New York City (David A. Schulz, Robert Penchina and Alia L. Smith of counsel), and Cameron Stracher, Westport, Connecticut, for proposed intervenor.
   OPINION OF THE COURT

Memorandum.

The motion by nonparty Hybrid Films, Inc. to intervene should be denied and the motion for reargument dismissed.

Hybrid moves to intervene in the appeal of this criminal action and for reargument, contending that it had no notice of the appeal, in whose outcome it asserts that it had a direct interest. The Criminal Procedure Law provides no mechanism for a nonparty to intervene or be joined in a criminal case. A nonparty wishing to supplement the arguments made to a court on an issue of law may seek leave to appear as amicus curiae. In this case, the Court of Appeals filing setting forth the issues under consideration was available to the public and published, together with a solicitation for amici, in the New York Law Journal. Since Hybrid has no right to intervene in this criminal appeal, its motion for reargument should be dismissed on the ground that Hybrid was not a party to the appeal. In any event, we note that each of Hybrid’s arguments respecting the journalist’s privilege was advanced by the People and that all of Hybrid’s affidavits and memoranda of law submitted below, while not included in defendant’s appendix, were contained in the original court file before this Court.

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

Motion to intervene denied and motion for reargument dismissed in a memorandum.


text:
    In the Matter of Chris Hynes, Appellant, v Roy Girdich, as Superintendent of Upstate Correctional Facility, et al., Respondents.
    Submitted March 21, 2005;
    decided May 3, 2005
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    Martin Goldman, LLC, Respondent, v Yonkers Industrial Development Agency et al., Appellants.
    Submitted March 21, 2005;
    decided May 3, 2005
   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:
    [831 NE2d 408, 798 NYS2d 351]
    Timothy Walls et al., Respondents, v Turner Construction Company, Appellant, et al., Defendant.
    Decided May 5, 2005

      APPEARANCES OF COUNSEL

      Malapero & Prisco, New York City (Andrew L. Klauber and Frank J. Lombardo of counsel), for appellant.

      Ferro Kuba Bloom Mangano Gacovino & Lake, PC., and Pollack, Pollack, Isaac & De Cicco, New York City (Brian J. Isaac and Brett I. Bloom of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

Turner Construction Company entered into a contract with the Massapequa Union Free School District to serve as its construction manager for capital improvement projects at several schools, including McKenna Elementary School. There was no general contractor on this job. As part of its contract, Turner assumed responsibility for contractual, statutory, and regulatory compliance by all other trade contractors involved in the school district’s capital improvement project. If Turner became aware of any unsafe condition or practice at the work site that might constitute a hazard to users of the properties, it was contractually required to “immediately direct the Trade Contractors to cease work which constitutes such unsafe practice or hazardous condition.” In addition, Turner was to monitor performance by all trade contractors, enforce the terms of the trade contracts and take action within its reasonable control to minimize the loss of life and damage to property during emergencies. Turner was further required to periodically advise the owner and architect of safety issues and concerns.

As the Turner employee who was the superintendent of the McKenna site acknowledged in her deposition, “[i]f there was something that was improper that was being done on the job site, then we were able to stop it, yes.” She further admitted that Turner had the authority to control activities at the site and that her duties included being in charge of safety at the work site, as well as compiling logs, issuing monthly safety reports, surveying field work and the like. Indeed, Turner’s Safety, Health and Environmental Policy manual specifically provided that the project superintendent “[c]reate a ZERO TOLERANCE POLICY for project safety program violations.”

During the course of this improvement project, the school district also contracted with Jordan Construction Company for replacement of windows at the school. On August 21, 1999, plaintiff was working as a special employee of Jordan on the premises of the McKenna Elementary School within the oversight of Turner. During the window replacement project, plaintiff fell 12 to 14 feet while trying to construct scaffolding on a second floor window. No safety equipment had been supplied to plaintiff. Having suffered various injuries to his legs, ankle and back, plaintiff commenced this action against Jordan and Turner and was awarded summary judgment on his Labor Law § 240 (1) cause of action. In granting summary judgment, the trial court determined that based on these facts, Turner was a statutory agent of the school district for purposes of the Labor Law. The Appellate Division affirmed, one Justice dissenting, in part, and certified to us the question whether the order was correct.

Although a construction manager of a work site is generally not responsible for injuries under Labor Law § 240 (1), one may be vicariously liable as an agent of the property owner for injuries sustained under the statute in an instance where the manager had the ability to control the activity which brought about the injury (see Russin v Picciano & Son, 54 NY2d 311, 317-318 [1981]; see also Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 878 [1993]). “When the work giving rise to [the duty to conform to the requirements of section 240 (1)] has been delegated to a third party, that third party then obtains the concomitant authority to supervise and control that work and becomes a statutory ‘agent’ of the owner or general contractor” (Russin, 54 NY2d at 318). Thus, unless a defendant has supervisory control and authority over the work being done when the plaintiff is injured, there is no statutory agency conferring liability under the Labor Law (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 293 [2003]).

Defendant, Turner, in this instance had such supervisory control and authority. Turner was not the “typical construction manager” as posited by the dissent (dissenting op at 866). On this job, Turner functioned as the eyes, ears, and voice of the owner. Turner’s broad responsibility was both that of coordinator and overall supervisor for all the work being performed on the job site. Turner was under a contractual obligation to monitor Jordan’s window replacement work and to protect Jordan’s employees. Accordingly, Turner also had the duty to make sure that workers on site were furnished with the proper safety gear. The dissent’s characterization of these contractual requirements as “a few benign safety-enhancing provisions” (dissenting op at 867) is untenable. Had Turner no such broad responsibility over plaintiffs work, Turner would not be statutorily liable..

The label of construction manager versus general contractor is not necessarily determinative. Thus, on the facts of this case, given (1) the specific contractual terms creating agency, (2) the absence of a general contractor, (3) Turner’s duty to oversee the construction site and the trade contractors, and (4) the Turner representative’s acknowledgment that Turner had authority to control activities at the work site and to stop any unsafe work practices, we agree that the Appellate Division was correct in holding Turner liable as a statutory agent of the school district under Labor Law § 240 (1).

Turner’s remaining argument that plaintiff was a recalcitrant worker is completely unsupported and without merit.

R.S. Smith, J. (dissenting).

I agree with the majority (at 863) that “a construction manager of a work site is generally not responsible for injuries under Labor Law § 240 (1).” I think the decision in this case, however, fails to apply that rule correctly, and I therefore dissent.

Labor Law § 240 (1) requires “contractors and owners and their agents” to furnish proper protection against elevation-related risks to workers engaged in certain construction activities. This statute, as we have interpreted it, imposes civil liability that in some ways goes well beyond ordinary liability for negligence: the duty it imposes is nondelegable—that is, even a contractor, owner or agent who did not supervise the work involved may be hable under the statute—and if the statute has been violated, it is irrelevant whether the plaintiff’s own negligence contributed to the resulting injury. The result, as judges in this state well know, has been an enormous quantity of Labor Law § 240 (1) litigation.

In one important way, however, our interpretation of the statute has not been expansive: we have never given the broadest possible reading to the words “contractors and owners and their agents.” On the contrary, we have hmited the definition of the term “agents” to those who have “authority to supervise and control [the] work” from which an injury arises (Russin v Picciano & Son, 54 NY2d 311, 318 [1981]). For example, while architects and engineers employed by an owner to work on a construction project may be the owner’s “agents” in some senses, these architects and engineers do not normally have Labor Law § 240 (1) liability (Fox v Jenny Eng’g Corp., 70 NY2d 761 [1987], affg 122 AD2d 532 [4th Dept 1986]). And prime contractors that are not general contractors are not “contractors” within the meaning of the statute as to work that has not been specifically delegated to them (Russin, 54 NY2d at 315). We have never decided, however, whether construction managers are either “contractors” or “agents” within the meaning of the statute. Appellate Division decisions are divided on this question (compare, e.g., Phillips v Wilmorite, Inc., 281 AD2d 945 [4th Dept 2001] and Loiacono v Lehrer McGovern Bovis, Inc., 270 AD2d 464 [2d Dept 2000] [both holding construction managers not liable] with Kenny v Fuller Co., 87 AD2d 183 [2d Dept 1982] [holding construction manager hable]; see also Balthazar v Full Circle Constr. Corp., 268 AD2d 96 [1st Dept 2000] [holding issues of fact precluded summary judgment against a construction manager]).

The principal difference between a general contractor and a construction manager is that the former has decision-making authority, while the latter’s role is primarily advisory. A general contractor chooses the subcontractors, and is responsible for telling them what to do. Where an owner hires a construction manager, there often is no general contractor; the owner, relying on the construction manager’s advice, itself retains and supervises a number of prime contractors, no one of which is in overall charge of the job. Since the owner normally follows the advice the construction manager gives, the line between authority and advice can become blurred, and it would be unsurprising to find that the word of a construction manager, when spoken on a job site, carries considerable weight with contractors and their employees. This could be the basis for an argument that construction managers are not materially different from general contractors and should have the same liability under Labor Law § 240 (1).

But I believe—and the majority seems, in principle, to agree— that we should reject this argument and should adhere to our holding in Russin that only persons who have the “authority to supervise and control” the relevant work are statutory “agents.” Where an owner retains for itself, and does not delegate to a general contractor, the power to choose contractors and supervise the job, it is the owner, not the owner’s advisors— however well-heeded their advice might be—that should have Labor Law § 240 (1) liability. The burdens that the statute places on owners, contractors and their agents are severe; a defendant may be liable to a worker who may have been primarily at fault, even where the defendant itself had no role in supervising the task at issue, and thus was not at fault at all. It is fair to allow owners and those with whom they contract to determine, by their contracts, on whom to confer the decision-making authority that carries with it this kind of exposure.

Plaintiffs argue that, even if decision-making authority is essential to Labor Law § 240 (1) liability, Turner Construction Company should be held liable here because it “was functioning as a general contractor and/or general supervisor of the job, with overarching and complete responsibility for site supervision and safety which it actually carried out.” The majority is apparently persuaded by this argument. As I view the record, however, Turner was a typical construction manager, did not have the kind of authority that a general contractor has, and therefore should not be held liable.

A reading of the contract between Turner and the owner of the construction site shows that it was the owner, not Turner, that had decision-making authority. The most important provisions give Turner the duty to “monitor the performance of the Work,” to “conduct walk-throughs at each work site” and to “report any identified deficiencies” in the performance of contractors. If Turner’s employees discovered failures by contractors to perform their obligations, Turner’s duty was to “promptly notify” the architect and the owner, and to make recommendations to the architect for correcting the problem.

It is true that some phrases in the contract seem to confer more than advisory power on Turner in specific situations. The most relevant to this case is that Turner was empowered to “require compliance by the Trade Contractors with all applicable Federal, state and local statutes, rules, regulations and codes regarding safety”; but Turner was also required to “advise the Owner of any identified failure of the Trade Contractors in this regard.” The majority also relies on language requiring that Turner “immediately direct the Trade Contractors to cease work” in the event of “any unsafe practice or condition at the work site which would constitute a hazard to school children or other users of facilities or properties in proximity to the work site.” It is not clear that this provision is even relevant to practices that endangered construction workers, rather than school children and other civilians—but in any event, a few benign safety-enhancing provisions in a contract should not be a basis for imposing Labor Law § 240 (1) liability on a company whose role was primarily advisory. Plaintiffs do not claim that Turner violated any of the contract’s provisions relating to safety, but only that its authority to promote safety made it a statutory “agent.” I find the argument unpersuasive.

Nor do I think the deposition testimony of Turner’s on-site representative justifies imposing liability on Turner. The representative’s description of her functions essentially tracked the contract language. Indeed, plaintiffs complain in their brief that this witness “attempted to limit Turner’s responsibility through carefully tailored testimony.” Plaintiffs nevertheless seize on a few bits of the deposition, including the statement the majority quotes that Turner could stop “something that was improper that was being done on the job site.” This testimony need not be read as going any further than the contractual provision permitting Turner to stop work when the safety of “school children or other users” was endangered—but if the witness mistakenly understood her authority to be broader than what the contract called for, that error should not expose Turner to Labor Law § 240 (1) liability. There is no evidence that Turner ever actually did stop work on the job; the question of when it theoretically could have done so should be determined by the contract, not a witness’s description of it.

In sum, I see no material difference between Turner’s role and the ordinary, advisory role of a construction manager. Thus I think the principle, correctly stated by the majority, that “a construction manager of a work site is generally not responsible for injuries under Labor Law § 240 (1)” should lead to dismissal of the complaint.

Accordingly, I would reverse the order of the Appellate Division and answer the certified question in the negative.

Chief Judge Kaye and Judges G.B. Smith, Ciparick and Graffeo concur in memorandum; Judge R.S. Smith dissents and votes to reverse in an opinion in which Judges Rosenblatt and Read concur.

Order affirmed, etc.


text:
    Dawn Bantum, Appellant, v American Stock Exchange, LLC, et al., Respondents, et al., Defendants.
    Submitted April 18, 2005;
    decided May 5, 2005
   Motion by Eliot Spitzer, Attorney General of the State of New York, for leave to appear amicus curiae on the appeal herein granted to the extent that three copies of a brief may be served and 20 copies filed within seven days.


text:
    Dawn Bantum, Appellant, v American Stock Exchange, LLC, et al., Respondents, et al., Defendants.
    Submitted May 2, 2005;
    decided May 5, 2005
   Motion by New York Mercantile Exchange, Inc. for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two additional copies of the brief may be served and 19 additional copies may be filed within seven days.


text:
    In the Matter of Katherine Barnhart et al., Appellants, v John Cataldo et al., Respondents.
    Submitted May 2, 2005;
    decided May 5, 2005
   Motion by Legal Aid Society for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    In the Matter of Chelsea K., a Child Alleged to be Neglected. Commissioner of Social Services of Clinton County, Respondent; Loren K., Appellant, et al., Respondent.
    Submitted March 28, 2005;
    decided May 5, 2005
   Motion for leave to appeal dismissed upon the ground that the issues presented have become moot.


text:
    In the Matter of Steven Geddes, Appellant, v Lori Montpetit, Respondent. (And Another Related Proceeding.)
    Submitted March 28, 2005;
    decided May 5, 2005
   Motion for leave to appeal dismissed upon the ground that appellant is not a party aggrieved (see CPLR 5511).


text:
    In the Matter of Theodore Given, Appellant, v Robert Dennison, as Acting Chairman of the New York State Division of Parole, Respondent.
    Submitted March 21, 2005;
    decided May 5, 2005
   Motion for leave to appeal dismissed upon the ground that the issues presented have become moot.


text:
    Elizabeth Jones-Barnes, Appellant, v Congregation Agudat Achim, Respondent.
    Submitted April 4, 2005;
    decided May 5, 2005
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]; Eaton v State of New York, 76 NY2d 824).


text:
    The People of the State of New York, Respondent, v Matthew Waldron, Appellant.
    Submitted May 2, 2005;
    decided May 5, 2005
   Motion for assignment of counsel granted only to the extent that J. Scott Porter, Esq., One Park Place, 300 South State Street, Syracuse, New York 13202 is assigned without fee to represent appellant on the appeal herein. Counsel may, however, apply for reimbursement of necessary disbursements incurred in connection with the assignment, subject to the limitations contained in section 500.10 (c) of the Rules of the Court of Appeals (22 NYCRR 500.10 [c]).


text:
    In the Matter of Radisson Community Association, Inc., Appellant, v Donald J. Long, as Acting Assessor of Town of Lysander, et al., Respondents, and Baldwinsville Central School District, Intervenor-Respondent.
    Submitted March 28, 2005;
    decided May 5, 2005
   Motion for leave to appeal dismissed upon the ground that simultaneous appeals do not lie to the Appellate Division and the Court of Appeals (see Parker v Rogerson, 35 NY2d 751, 753).