text:
    [49 NE3d 1155, 29 NYS3d 863]
    The People of the State of New York, Respondent, v Rashid Bilal, Appellant.
    Argued February 11, 2016;
    decided March 31, 2016
    APPEARANCES OF COUNSEL

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

      Cyrus R. Vance, Jr., District Attorney, New York City {Philip Morrow and David M. Cohn of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by remitting to Supreme Court for a suppression hearing. In the event that defendant prevails at the suppression hearing, a new trial should be ordered; alternatively, in the event that the People prevail, the judgment should be amended to reflect that result. As so modified, the order should be affirmed.

On this record and in light of the issues framed by the parties in connection with defendant’s CPL 440.10 motion, we conclude that defendant was denied the effective assistance of counsel. In this case, defendant was indicted on a charge of criminal possession of a weapon in the second degree (see Penal Law § 265.03 [3]), and defense counsel failed to move to suppress the gun that was recovered during defendant’s encounter with the police. Defendant established, through his counsel’s affidavit, that there was no “strategic or other legitimate explanation[ ]” (People v Rivera, 71 NY2d 705, 709 [1988]) for defense counsel’s failure to file a motion to suppress. Thus, we conclude that counsel did not provide defendant with meaningful representation under these particular circumstances. Accordingly, defendant is entitled to a suppression hearing and, if he prevails at the hearing, a new trial, but if the People prevail, the judgment should be amended to reflect that result (see People v Clermont, 22 NY3d 931, 934 [2013]; People v Millan, 69 NY2d 514, 521-522 [1987]).

Chief Judge DiFiore and Judges Pigott, Rivera, Abdus-Salaam, Stein, Fahey and Garcia concur.

Order modified by remitting to Supreme Court, New York County, for further proceedings in accordance with the memorandum herein and, as so modified, affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Susan Aranoff, Respondent, v Gerald Aranoff, Appellant.
    Submitted February 16, 2016;
    decided April 5, 2016
   Motion, insofar as it seeks leave to appeal from the June 2015 Appellate Division order, dismissed upon the ground that it does not lie, appellant having previously moved in the Court of Appeals for leave to appeal (26 NY3d 944 [2015]) from the same Appellate Division order from which he currently seeks leave to appeal (see Selinger v Selinger, 90 NY2d 842 [1997]); motion, insofar as it seeks leave to appeal from the July 2015 Appellate Division order, 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:
    Joseph F. Borrelli, Appellant, v Christina Borrelli, Respondent.
    Submitted February 16, 2016;
    decided April 5, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Robert Cass, Appellant, v State of New York, Respondent.
    Submitted February 22, 2016;
    decided April 5, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Elvis Castillo, Appellant, v Anthony Annucci, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondent.
    Submitted February 16, 2016;
    decided April 5, 2016
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    Joan Coccia, Respondent, v Thomas F. Liotti, Appellant.
    Submitted February 22, 2016;
    decided April 5, 2016
   Motion for reargument of motion for leave to appeal denied [see 26 NY3d 1096 (2016)].

Chief Judge DiFiore and Judge Garcia taking no part.


text:
    The Diversified Group, Inc., et al., Appellants, v Marcum & Kliegman LLP et al., Respondents.
    Submitted February 29, 2016;
    decided April 5, 2016
   Motion to substitute Zaida Rodriguez-Cohen, as personal representative of the estate of Gerald Cohen, as party respondent herein in place of deceased respondent Gerald Cohen granted.


text:
    Donald Felix, Respondent, v Law Offices of Thomas F. Liotti, Appellant.
    Submitted February 22, 2016;
    decided April 5, 2016
   Motion for reargument of motion for leave to appeal denied [see 26 NY3d 1096 (2016)].

Chief Judge DiFiore and Judge Garcia taking no part.


text:
    Jeffrey Gural, Appellant, et al., Plaintiff, v Fred Drasner, Respondent.
    Submitted February 1, 2016;
    decided April 5, 2016
   Motion for leave to appeal dismissed upon the ground that the Appellate Division order does not finally determine the action within the meaning of the Constitution and that the stipulation does not qualify as a final judgment within the meaning of CPLR 5602 (a) (1) (ii) to bring up for review a prior nonfinal Appellate Division order because it was entered into without prejudice.


text:
    Mary Jane Hayes, Respondent, v William Ames Hayes, Appellant.
    Submitted February 29, 2016;
    decided April 5, 2016
   Motion for reargument of motion for leave to appeal etc. denied [see 26 NY3d 1081 (2015)].

Chief Judge DiFiore and Judge Garcia taking no part.


text:
    Rosemarie A. Herman et al., Respondents, v Julian Maurice Herman et al., Appellants, et al., Defendants.
    Submitted February 22, 2016;
    decided April 5, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Marilyn Hopeman, Appellant, v Eric A. Seiff, Respondent.
    Submitted February 22, 2016;
    decided April 5, 2016
   Motion for reargument of motion for leave to appeal denied [see 26 NY3d 1095 (2016)].

Chief Judge DiFiore and Judge Garcia taking no part.


text:
    Jerry L. Johnson, Appellant, v State of New York, Respondent.
    Submitted February 29, 2016;
    decided April 5, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Kanic Realty Associates, Inc., Appellant, v Suffolk County Water Authority, Respondent.
    Submitted February 8, 2016;
    decided April 5, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Elizabeth Marie Barnson Karnazes, a Disbarred Attorney.
    Submitted February 22, 2016;
    decided April 5, 2016
   On the Court’s own motion, appeal, insofar as taken from the Appellate Division order denying reconsideration, dismissed, without costs, upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution; appeal otherwise dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for poor person relief dismissed as academic.


text:
    Donette Kingston, Appellant, v New York City Police Department, Respondent.
    Submitted February 29, 2016;
    decided April 5, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Law Offices of Thomas F. Liotti et al., Appellants, v Donald Felix et al., Respondents.
    Submitted February 22, 2016;
    decided April 5, 2016
   Motion for reargument of motion for leave to appeal denied [see 26 NY3d 1097 (2016)].

Chief Judge DiFiore and Judge Garcia taking no part.


text:
    Dennis Lee, Also Known as Lee Man for Dennis, Respondent, v Chun Ka Luk, Appellant.
    Submitted February 1, 2016;
    decided April 5, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Teddy Moore, Appellant, v Frank Guerra, Defendant, and City of New York et al., Respondents.
    Submitted February 8, 2016;
    decided April 5, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Chaudry Noor, Respondent, v City of New York et al., Appellants.
    Submitted February 16, 2016;
    decided April 5, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York ex rel. Michael Aziz Zarif Shabazz, Also Known as Michael Hurley, Appellant, v Jerome J. Richards, Acting Judge of Franklin County Court, et al., Respondents.
    Submitted February 22, 2016;
    decided April 5, 2016
   Motion, insofar as it seeks leave to appeal from the February 2012 Appellate Division order, dismissed upon the ground that it does not lie, appellant having previously moved for leave to appeal to the Court of Appeals (20 NY3d 983 [2012]) from the same Appellate Division order from which leave to appeal is currently sought (see Selinger v Selinger, 90 NY2d 842 [1997]); motion, insofar as it seeks leave to appeal from the portion of the April 2015 Appellate Division order relating to this civil proceeding, dismissed as untimely (see CPLR 5513 [b]; 2103 [b] [2]).


text:
    PNC Bank, National Association, Respondent, v Aaron Klein, Appellant, et al., Defendants.
    Submitted February 1, 2016;
    decided April 5, 2016
   Motion for reargument of motion for leave to appeal denied [see 26 NY3d 1078 (2015)].

Chief Judge DiFiore and Judge Garcia taking no part.


text:
    In the Matter of Rite Aid Corporation, Appellant, v Stephen Haywood, Assessor, et al., Respondents. (Proceeding Nos. 1 and 2.)
    Submitted February 22, 2016;
    decided April 5, 2016
   Motion for reargument of motion for leave to appeal denied with $100 costs and necessary reproduction disbursements [see 26 NY3d 915 (2016)].

Chief Judge DiFiore and Judge Garcia taking no part.


text:
    In the Matter of Rite Aid Corporation, Appellant, v Terie Huseby, Assessor, et al., Respondents.
    (Appeal No. 2.)
    Submitted February 22, 2016;
    decided April 5, 2016
   Motion for reargument of motion for leave to appeal denied with $100 costs and necessary reproduction disbursements [see 26 NY3d 916 (2016)].

Chief Judge DiFiore and Judge Garcia taking no part.


text:
    SFR Holdings Ltd. et al., Appellants, v John Rice et al., Respondents.
    Submitted February 16, 2016;
    decided April 5, 2016
   Motion, insofar as it seeks leave to appeal as against respondents John Rice; Joseph Ingrassia; Capstone Capital Management, Inc.; Capstone Cayman Special Purpose Fund, LP; and Capstone Special Purpose Fund, LP, dismissed upon the ground that as to those respondents the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Maxine Todd, Appellant, v New York City Health and Hospitals Corporation Office of Legal Affairs, Claims Division, Respondent.
    Submitted February 22, 2016;
    decided April 5, 2016
   Motion for reargument denied [see 26 NY3d 1102 (2016)].

Chief Judge DiFiore and Judge Garcia taking no part.


text:
    In the Matter of the Estate of Stanley A. Wagner, Deceased. Jaan Aarismaa, IV, Appellant; John L. Wagner, as Executor of Stanley A. Wagner, Deceased, Respondent.
    Submitted February 16, 2016;
    decided April 5, 2016
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of the Estate of Stanley A. Wagner, Deceased. Jaan Aarismaa, IV, Appellant; John L. Wagner, as Executor of Stanley A. Wagner, Deceased, Respondent.
    Submitted March 7, 2016;
    decided April 5, 2016
   Motion by appellant for affirmative relief dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain it (see NY Const, art VI, § 3). Cross motion by respondent for the imposition of sanctions denied.


text:
    Women’s Interart Center, Inc., Appellant, v New York City Economic Development Corporation et al., Respondents. Women’s Interart Center, Inc., Appellant, v Clinton Housing Development Fund Corp., Respondent.
    Submitted February 8, 2016;
    decided April 5, 2016
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]). The prior motion for leave to appeal made at the Appellate Division was untimely.

Judges Rivera and Abdus-Salaam taking no part.


author: Rivera, J.

text:
    [50 NE3d 913, 31 NYS3d 446]
    The People of the State of New York, Respondent, v Ronnell Jordan, Appellant.
    Decided March 29, 2016
    APPEARANCES OF COUNSEL

      White & Case LLP, New York City (Kevin C. Adam, James Trainor and Louis O’Neill of counsel), and Lynn W.L. Fahey, Appellate Advocates, New York City, for appellant.

      Kenneth P. Thompson, District Attorney, Brooklyn {Amy Appelbaum of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant failed to preserve his contention that the trial court discharged prospective jurors based on hardship without conducting a sufficient inquiry (see People v King, 27 NY3d 147 [2016] [decided herewith]). Defendant’s remaining contentions are without merit.

Rivera, J.

(dissenting). For the reasons stated in my dissenting opinion in People v King (27 NY3d 147 [2016] [decided herewith]), I would reverse the order of the Appellate Division on the sole ground that the judge’s jury selection process denied defendant his right to a jury trial.

Judges Pigott, Abdus-Salaam, Stein and Fahey concur; Judge Rivera dissents in an opinion; Chief Judge DiFiore and Judge Garcia taking no part.

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


text:
    [50 NE3d 922, 31 NYS3d 454]
    Luis Carrion, Appellant, v John Faulkner, Individually and Doing Business as Falcon Mews Associates, et al., Respondents.
    Decided April 28, 2016

      APPEARANCES OF COUNSEL

      Arnold E. DiJoseph, P.C., New York City (Arnold E. Di-Joseph, III, of counsel), for appellant.

      Gannon, Rosenfarb & Drossman, New York City (Lisa L. Gokulsingh of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, with costs, and defendants’ motion for summary judgment denied. On this record, material questions of fact exist and, therefore, summary judgment for defendants was inappropriate.

Concur: Chief Judge DiFiore and Judges Pigott, Rivera, Abdus-Salaam, Stein, Fahey and Garcia.


text:
    [51 NE3d 554, 32 NYS3d 43]
    The People of the State of New York, Respondent, v Anthony Romero, Also Known as Robert Rosa, Appellant.
    Decided April 28, 2016

      APPEARANCES OF COUNSEL

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

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

Memorandum.

The order of the Appellate Division should be affirmed. Defendant’s pre-Miranda statement, while in custody, in response to a detective’s question regarding whether he would like to make a statement should have been suppressed. However, the error in failing to suppress the statement was harmless beyond a reasonable doubt in light of the overwhelming evidence against defendant and there being no reasonable possibility that his statement contributed to the verdict (see People v Rivera, 57 NY2d 453, 456 [1982]). Additionally, there is record support for Supreme Court’s decision to deny defendant’s motion to suppress the showup identification (see People v Clark, 85 NY2d 886 [1995]), and that decision is beyond our further review.

Chief Judge DiFiore and Judges Pigott, Rivera, Abdus-Salaam, Stein, Fahey and Garcia concur.

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


text:
    [51 NE3d 553, 32 NYS3d 42]
    Kamel R. Sadek, Respondent, v Jenkins A. Wesley et al., Appellants.
    Argued March 23, 2016;
    decided April 28, 2016

      APPEARANCES OF COUNSEL

      Landman Corsi Ballaine & Ford P.C., New York City (Gerald T. Ford, Diane J. Ruccia and Natalie Garcia of counsel), for appellants.

      Robert A. Skoblar, Hackensack, New Jersey, for respondent.
   OPINION OF THE COURT

Memorandum.

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

In view of the Appellate Division’s substitution of its discretion for that of the trial court, our review is limited (see Brady v Ottaway Newspapers, 63 NY2d 1031, 1032 [1984]; Matter of Von Bulow, 63 NY2d 221, 225 [1984]; see also Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 745 [2000]). That narrow scope of review and the unique facts present here drive our determination of this case. We conclude that the Appellate Division did not abuse its discretion as a matter of law in refusing to preclude plaintiff’s proposed expert neurological testimony with respect to what is alleged to have been a neurological injury inasmuch as the subject matter of that testimony is within the competence of plaintiff’s experts and is supported by medical literature. As the Appellate Division noted, any defects in the opinions of plaintiffs experts or the foundation on which those opinions are based should go to the weight to be accorded that evidence by the trier of fact, not to its admissibility in the first instance.

Chief Judge DiFiore and Judges Pigott, Rivera, Abdus-Salaam, Stein, Fahey and Garcia concur.

Order affirmed, with costs, and certified question answered in the affirmative, in a memorandum.

       We agree that this case is not one to which Frye v United, States (293 F 1013 [DC Cir 1923]) applies, and we have no reason to address the Appellate Division’s Frye discussion.


text:
    [50 NE3d 922, 31 NYS3d 454]
    In the Matter of Alan M. Simon.
    Decided April 28, 2016
    APPEARANCES OF COUNSEL

      Kantor, Davidoff Mandelker, Twomey, Gallanty & Olenick, P.C., New York City (Lawrence A. Mandelker of counsel), for Hon. Alan M. Simon.

      Robert H. Tembeckjian, New York City, for New York State Commission on Judicial Conduct.
   OPINION OF THE COURT

On the Court’s own motion, it is determined that the Honorable Alan M. Simon is suspended, with pay, effective immediately, from the offices of Justice of the Spring Valley Village Court, Rockland County, and the Ramapo Town Court, Rockland County, and the office of Acting Justice of the Hill-burn Village Court, Rockland County, pursuant to Judiciary Law § 44 (8), pending disposition of his request for review of a determination by the State Commission on Judicial Conduct.

Concur: Chief Judge DiFiore and Judges Pigott, Rivera, Abdus-Salaam, Stein, Fahey and Garcia.


text:
    [50 NE3d 923, 31 NYS3d 455]
    In the Matter of Steam Pipe Explosion at 41st Street and Lexington Avenue. Carrie Tassa, Plaintiff, v Consolidated Edison Inc. et al., Respondents/Third-Party Plaintiffs-Respondents, and Team Industrial Services, Inc., Appellant/Third-Party Defendant-Appellant, et al., Defendant. (And Other Actions.)
    Decided April 28, 2016

      APPEARANCES OF COUNSEL

      Shaub, Ahmuty, Citrin & Spratt, LLP, New York City (Juan C. Gonzalez and Timothy R. Capowski of counsel), for appellant.

      Davis Polk & Wardwell LLP, New York City (.Frances E. Biv-ens of counsel), Douglas J. McKay, New York City, and Clark Gagliardi & Miller, P.C., White Plains, for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, and certified question answered in the affirmative. The Appellate Division did not abuse its discretion in granting the motion to compel Team Industrial Services, Inc. to produce its file related to another action.

Concur: Judges Pigott, Rivera, Abdus-Salaam, Stein, Fa-hey and Garcia. Taking no part: Chief Judge DiFiore.


text:
    In the Matter of Brooke S.B., Respondent, v Elizabeth A.C.C., Respondent. R. Thomas Rankin, Esq., Attorney for the Child, Appellant.
    Submitted April 11, 2016;
    decided April 28, 2016
   Motion by the Association of the Bar of the City of New York et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.

Judge Fahey taking no part.


text:
    Ellen Capers, Plaintiff, v Parkshore Healthcare, LLC, et al., Respondents. Lola Capers, Nonparty Appellant.
    Decided April 28, 2016
   Appeal, insofar as taken from the March 2010 Supreme Court order, transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Second 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]). Appeal, insofar as taken from the October 2014 Appellate Division order, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that appellant is not a party aggrieved (see CPLR 5511).


text:
    In the Matter of Estrellita A., Respondent, v Jennifer L.D., Appellant.
    Submitted April 11, 2016;
    decided April 28, 2016
   Motion by the Association of the Bar of the City of New York et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.

Judge Fahey taking no part.


text:
    Sheila Freed, Respondent, v Yochai Kapla, Appellant.
    Submitted February 22, 2016;
    decided April 28, 2016
   Motion for reargument of motion for leave to appeal etc. denied [see 26 NY3d 1097 (2016)].

Chief Judge DiFxore and Judge Garcia taking no part.


text:
    The People of the State of New York, Respondent, v Ted Antoine, Appellant.
    Submitted April 11, 2016;
    decided April 28, 2016
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v James L. Carr, Appellant.
    Submitted April 25, 2016;
    decided April 28, 2016
   Motion for assignment of counsel granted and Evan M. Lum-ley, Esq., Cornell Mansion, 484 Delaware Avenue, Buffalo, New York 14202 assigned as counsel to the appellant on the appeal herein.

Judge Fahey taking no part.


text:
    The People of the State of New York, Respondent, v Mark Nonni, Appellant.
    Submitted April 25, 2016;
    decided April 28, 2016
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 120 Wall Street, 28th Floor, New York, NY 10005 assigned as counsel to the appellant on the appeal herein.


text:
    S.L., Appellant, v J.R., Respondent.
    Submitted April 18, 2016;
    decided April 28, 2016
   Motion by appellant to strike, deemed a motion to strike the supplemental appendix and related references to the documents contained therein in the briefs of the respondent and the Attorney for the Child, granted and said material deemed stricken.

Chief Judge DiFiore taking no part.


text:
    In the Matter of Reginald Swinton, Appellant, v Dora Schriro, Respondent.
    Submitted February 29, 2016;
    decided April 28, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Anthony Turturro, an Infant, by His Mother and Natural Guardian, Elida Turturro, et al., Respondents, v City of New York, Appellant, and Louis Pascarella et al., Respondents.
    Submitted April 25, 2016;
    decided April 28, 2016
   Motion by County of Suffolk for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    Xiu Jian Sun, Appellant, v Wuhua Jing, M.D., Ph.D., et al., Respondents.
    Decided April 28, 2016
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601).


text:
    [51 NE3d 560, 32 NYS3d 49]
    The People of the State of New York, Respondent, v Joel Joseph, Appellant.
    Argued March 31, 2016;
    decided May 3, 2016

      APPEARANCES OF COUNSEL

      Seymour W. James, Jr., The Legal Aid Society, New York City {Arthur H. Hopkirk of counsel), for appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City {Lindsey Richards, Manu K. Balachandran and Grace Vee of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The issue of whether the police had probable cause to arrest defendant involves a mixed question of law and fact (see People v Oden, 36 NY2d 382, 384 [1975]) and is therefore beyond this Court’s further review power if the Appellate Division’s determination is supported by evidence in the record. In this case, there is record support for the conclusion that the police possessed probable cause.

Members of the New York Drug Enforcement Task Force were following a man whom they knew to be a narcotics trafficker, based on confidential information confirmed by subsequent surveillance, as he drove through Manhattan. One of the experienced narcotics officers saw defendant and the surveillance target engage in a hasty interaction indicative of a drug transaction, in which defendant took a bag from the trunk of the target’s motor vehicle, while the target remained in the driver’s seat. Defendant was arrested, and a search of his person incident to arrest recovered a bag containing cocaine. Defendant moved to suppress the physical evidence, contending that the officers lacked probable cause to arrest him.

After a Darden hearing (see People v Darden, 34 NY2d 177 [1974], rearg denied 34 NY2d 995 [1974]), Supreme Court found that the confidential information had given the police “cause to believe” that the surveillance target was engaged in “drug activity.” Insofar as a Darden hearing is held to ensure “that the confidential informant both exists and gave the police information sufficient to establish probable cause” (People v Edwards, 95 NY2d 486, 494 [2000]), it may be inferred from the Darden hearing court’s ruling, which was adopted by the suppression court for the purpose of determining probable cause, that the confidential information was not stale by the time of defendant’s arrest.

Furthermore, the officer’s justified belief that the surveillance target was trafficking in narcotics, together with the manner in which the bag was removed from the car, support the lower courts’ conclusion that the police had probable cause to arrest defendant for criminal possession of a controlled substance. Record support for probable cause may be found on the basis of “indicia of a drug transaction” known to “an experienced officer . . . trained in the investigation and detection of narcotics,” which include “handling] [an] unidentified object in a manner typical of a drug sale” (People v Jones, 90 NY2d 835, 837 [1997]; see generally People v McRay, 51 NY2d 594, 601-602 [1980]).

Chief Judge DiFiore and Judges Pigott, Rivera, Abdus-Salaam, Stein, Fahey and Garcia concur.

Order affirmed, in a memorandum.


text:
    [54 NE3d 1143, 35 NYS3d 272]
    The People of the State of New York, Respondent, v Tyrone D. Manor, Appellant.
    Argued March 31, 2016;
    decided May 3, 2016
    APPEARANCES OF COUNSEL

      Timothy P. Donaher, Public Defender, Rochester {Kimberly F. Duguay of counsel), for appellant.

      Sandra Doorley, District Attorney, Rochester {Robert J. Shoemaker of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant challenges the judgment convicting him, upon his plea of guilty, of murder in the second degree (Penal Law § 125.25 [1]) and sentencing him, pursuant to the plea agreement, to 18 years to life in prison.

We agree with the Appellate Division that County Court did not abuse its discretion by denying defendant’s motion to withdraw his guilty plea without holding a hearing. Defendant had been provided with two alternative plea offers. The record shows that at the plea allocution, the court explained the two plea options and the rights that defendant was giving up by not going to trial. Defendant indicated that he understood and had discussed the guilty plea with his counsel. To the extent that defendant’s statements during the plea colloquy raised a question regarding his intent to kill the victim, the trial court fulfilled its “duty to inquire further to ensure [the] guilty plea [was] knowing and voluntary” (People v Lopez, 71 NY2d 662, 666 [1988]).

In moving to withdraw defendant’s guilty plea, defendant’s two attorneys submitted affirmations indicating that they were surprised that defendant had decided to take the plea, that he had not looked well on the date of the plea, and that he had been pressured to take the plea by family members. The motion was also supported by the report of a psychiatrist retained by defendant who had conducted a psychiatric examination of him approximately two months after the court had entered the guilty plea. The psychiatrist repeated the allegations of family pressure and further indicated that defendant’s plea was impaired by his use of alcohol and marijuana to control his anxiety before arriving at the courthouse. The doctor did not indicate that defendant was mentally ill or otherwise lacked the capacity to plead guilty. Notably, the motion to withdraw the plea was not supported by an affidavit from defendant. At sentencing, the court asked if either side wished to be heard beyond the papers, and both the prosecutor and defense counsel stated that they had nothing further. Defendant did not address the court. The court found that there was no need for a factual hearing and stated that it was satisfied that the plea entered was a knowing, voluntary and intelligent waiver of defendant’s rights to a trial. The court therefore denied the motion.

“When a defendant moves to withdraw a guilty plea, the nature and extent of the fact-finding inquiry rest[s] largely in the discretion of the Judge to whom the motion is made and a hearing will be granted only in rare instances” (People v Brown, 14 NY3d 113, 116 [2010] [internal quotation marks omitted], quoting People v Tinsley, 35 NY2d 926, 927 [1974]). As we said in Tinsley, “often),] a limited interrogation by the court will suffice” (35 NY2d at 927). Here, the court gave the parties an opportunity to argue in furtherance of the motion to withdraw the plea, and because both parties declined, the motion was appropriately decided on the written submissions. Furthermore, while defense counsel claimed that defendant had been pressured by his family to take the plea, this Court has “never recognized ‘coercion’ by family members as a reason for withdrawing a guilty plea” (People v Lewis, 46 NY2d 825, 826 [1978]), and the record here does not demonstrate that the court abused its discretion in denying the motion on that ground. Additionally, given defendant’s silence in any sworn statement regarding his alleged use of drugs and alcohol and the court’s ability to observe defendant during the colloquy (see People v Alexander, 97 NY2d 482, 486 [2002] [“(t)he court was able firsthand to assess whether defendant was alert and knowledgeable enough to plead guilty voluntarily”]), it was not an abuse of discretion for the court to have denied the motion to withdraw the plea without holding a hearing.

Finally, defendant did not meet his burden of demonstrating on this record that he was deprived of a fair plea proceeding by less than meaningful representation (see generally People v Flores, 84 NY2d 184, 187 [1994]).

Chief Judge DiFiore and Judges Pigott, Rivera, Abdus-Salaam, Stein and Garcia concur; Judge Fahey taking no part.

Order affirmed, in a memorandum.


text:
    BAC Home Loans Servicing, LP, Formerly Known as Countrywide Home Loans Servicing LP, Respondent, v Barbara Bixby, Appellant, et al., Defendants.
    Submitted March 7, 2016;
    decided May 3, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Douglas Elliman, LLC, Doing Business as Prudential Douglas Elliman Real Estate, Appellant, v Rhona Silver et al., Respondents.
    Submitted March 14, 2016;
    decided May 3, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Lesley Drazek, Appellant, v Vital Transportation, Inc., Respondent.
    Submitted March 7, 2016;
    decided May 3, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Flo & Eddie, Inc., a California Corporation, Individually and on Behalf of All Others Similarly Situated, Respondent, v Sirius XM Radio, Inc., a Delaware Corporation, Appellant, and Does 1 through 10, Defendants.
    Decided May 3, 2016

      See 821 F3d 265.
   Certification of question by the United States Court of Appeals for the Second Circuit, pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), accepted and the issues presented are to be considered after briefing and argument.

Concur: Chief Judge DiFiore and Judges Pigott, Rivera, Abdus-Salaam, Stein, Fahey and Garcia.


text:
    In the Matter of Sylvia Golub, Deceased. Norman Golub, Respondent; J. David Golub, Appellant. (Matter No. 1.) Norman Golub, Respondent, v Jerry David Golub, Appellant. (Matter No. 2.)
    Submitted March 7, 2016;
    decided May 3, 2016
   Motion for reconsideration of this Court’s January 7, 2016 dismissal orders denied [see 26 NY3d 1094, 1095 (2016)]. Motion for leave to appeal dismissed upon the ground that the Court of Appeals lacks jurisdiction to entertain the motion (see NY Const, art VI, § 3; CPLR 5602). Motion for a stay dismissed as academic.

Chief Judge DiFiore and Judge Garcia taking no part.


text:
    In the Matter of Dwight James, Appellant, v New York State Board of Parole, Respondent.
    Decided May 3, 2016
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Vladimir Jeanty, Appellant, v Barry M. Donalty, Supervising Judge, Oneida County Court, et al., Respondents.
    Submitted April 18, 2016;
    decided May 3, 2016
   Motion to seal dismissed as unnecessary (see Rules of Ct of Appeals [22 NYCRR] § 500.5 [b]).


text:
    In the Matter of Diana Oliver, Appellant, v Mark A. Gross, Judge of the Mount Vernon City Court, et al., Respondents.
    Submitted April 4, 2016;
    decided May 3, 2016
   Motion to dismiss appeal granted and appeal dismissed, without costs, for failure to proceed.

Chief Judge DiFiore taking no part.


text:
    The People of the State of New York ex rel. Gary H. Moore, Appellant, v Superintendent of Coxsackie Correctional Facility, Respondent.
    Submitted March 21, 2016;
    decided May 3, 2016
   Motion for reconsideration of this Court’s February 23, 2016 dismissal order denied [see 26 NY3d 1138 (2016)].

Judge Stein taking no part.


text:
    The People of the State of New York ex rel. Dexter Washington, Also Known as Eze Alimase, Appellant, v Kathleen G. Gerbing, Superintendent, Otisville Correctional Facility, Respondent.
    Decided May 3, 2016
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Raisa Rozina et al., Appellants, v Casa 74th Development LLC et al., Respondents.
    Submitted March 7, 2016;
    decided May 3, 2016
   Motion for reargument of motion for leave to appeal dismissed as untimely (see Rules of Ct of Appeals [22 NYCRR] § 500.24 [b]) [see 24 NY3d 1097 (2015)].

Chief Judge DiFiore and Judge Garcia taking no part.


text:
    In the Matter of Judson Watkins, Appellant, v Albert Prack, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
    Submitted March 14, 2016;
    decided May 3, 2016
   Motion, insofar as it seeks leave to appeal from the Appellate Division judgment, dismissed as untimely (see CPLR 5513 [b]; Eaton v State of New York, 76 NY2d 824 [1990]); motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution.


text:
    [52 NE3d 243, 32 NYS3d 579]
    Marie Castiglione et al., Respondents, v Robert Kruse et al., Appellants.
    Decided May 5, 2016

      APPEARANCES OF COUNSEL

      Picciano & Scahill, P.C., Westbury (Andrea E. Ferrucci of counsel), for appellants.

      Blackstone Law Group LLP, New York City (Justin B. Perri and Alexander J. Urbelis of counsel), and Michael S. Langella, PC., Hauppauge, for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, with costs, plaintiffs’ motion for summary judgment on the issue of liability denied, and certified question answered in the negative. On this record, triable questions of fact preclude summary judgment in plaintiffs’ favor.

Concur: Chief Judge DiFiore and Judges Pigott, Rivera, Abdus-Salaam, Stein, Fahey and Garcia.


text:
    [52 NE3d 231, 32 NYS3d 568]
    Rodney Sherman, Appellant, v New York State Thruway Authority, Respondent.
    Argued March 24, 2016;
    decided May 5, 2016

      APPEARANCES OF COUNSEL

      Norman M. Block, P.C., Hawthorne (Norman M. Block of counsel), for appellant.

      McGaw, Aluentosa & Zajac, Jericho (Andrew Zajac of counsel), for respondent.

      Lawrence Heisler, Brooklyn, for New York City Transit Authority, amicus curiae.
   OPINION OF THE COURT

Memorandum.

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

Claimant, a New York State Trooper, slipped and fell on an icy sidewalk outside the trooper barracks in Newburgh. The sidewalk is located on property owned and maintained by defendant New York State Thruway Authority. Claimant commenced this personal injury action against the Authority, alleging that it negligently failed to maintain the sidewalk by failing to remove ice and/or place salt after a winter storm. Following discovery, both parties moved for summary judgment. As relevant here, the Authority argued that it was entitled to judgment as a matter of law under the “storm in progress” doctrine. The Court of Claims denied the parties’ motions, finding questions of fact as to whether a storm was in progress at the time of claimant’s fall. The Appellate Division reversed and granted the Authority summary judgment (120 AD3d 792 [2d Dept 2014]). We granted claimant leave to appeal (25 NY3d 905 [2015]) and now affirm.

Although a landowner owes a duty of care to keep his or her property in a reasonably safe condition, he “will not be held liable in negligence for a plaintiff’s injuries sustained as the result of an icy condition occurring during an ongoing storm or for a reasonable time thereafter” (Solazzo v New York City Tr. Auth., 6 NY3d 734, 735 [2005]). The Authority established prima facie that it was entitled to judgment as a matter of law by submitting uncontroverted evidence that a storm was ongoing at the time of claimant’s fall. Claimant admitted at his deposition that “an ice storm” had taken place the night before the accident, and an “intermittent wintry mix” of snow, sleet and rain persisted the next morning until 6:50 a.m., when claimant arrived at the trooper barracks for work. Claimant testified, and a certified weather report confirmed, that it was still raining at 8:15 a.m. when he walked to his vehicle and slipped on a patch of ice. The undisputed facts that precipitation was falling at the time of claimant’s accident and had done so for a substantial time prior thereto, while temperatures remained near freezing, established that the storm was still in progress and that the Authority’s duty to abate the icy condition had not yet arisen. In opposition, claimant failed to raise a triable issue of fact.

Therefore, the Appellate Division properly granted the Authority’s motion for summary judgment dismissing the complaint.

Rivera, J.

(dissenting). This appeal involves the application on summary judgment of the storm-in-progress doctrine to claimant Rodney Sherman’s personal injury action against the New York State Thruway Authority, arising from his slip and fall on an icy patch of a sidewalk under the care and responsibility of the Authority. On the record before us, triable issues of material fact exist as to whether the storm in question had ended, and if so whether a reasonable period of time had passed to hold the Authority liable for negligence resulting in claimant’s injuries. Therefore, the Appellate Division should be reversed, and I dissent from the majority’s determination to the contrary.

“Since [summary judgment] deprives [a] litigant of [the party’s] day in court it is considered a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues” (Andre v Pomeroy, 35 NY2d 361, 364 [1974]). “[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Thus, “[a] party moving for summary judgment must demonstrate that ‘the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment’ in the moving party’s favor” (Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, 833 [2014], quoting CPLR 3212 [b]). “This burden is a heavy one and on a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party” (William J. Jenack Estate Appraisers & Auctioneers, Inc. v Rabizadeh, 22 NY3d 470, 475 [2013] [internal quotation marks omitted]), “and every available inference must be drawn in the [non-moving party’s] favor” (De Lourdes Torres v Jones, 26 NY3d 742, 763 [2016]). If the moving party makes out a prima facie showing, “the burden then shifts to the non-moving party to establish the existence of material issues of fact which require a trial of the action” (Jacobsen, 22 NY3d at 833 [internal quotation marks omitted]).

In support of its summary judgment motion, the Authority relied on the storm-in-progress doctrine, which provides that “[a] property owner will not be held liable in negligence for a plaintiff’s injuries sustained as the result of an icy condition occurring during an ongoing storm or for a reasonable time thereafter” (Solazzo v New York City Tr. Auth., 6 NY3d 734, 735 [2005]).

“The reasonableness of the time within which [an owner] must respond to its duty to clear the sidewalks is measured from the time that the storm comes to an end since . . . ‘responsibility for ice conditions arises, at the most, only after the lapse of a reasonable time for taking protective measures and never while a storm is still in progress’ ” (Valentine v City of New York, 86 AD2d 381, 384 [1st Dept 1982], affd 57 NY2d 932 [1982], quoting Valentine v State of New York, 197 Misc 972, 975 [Ct Cl 1950], affd 277 App Div 1069 [3d Dept 1950], lv denied 277 App Div 1080 [1950]).

The doctrine reflects practical concerns related to the challenges and dangers of maintaining property in reasonably safe conditions during inclement weather (see Powell v MLG Hillside Assoc., 290 AD2d 345, 345 [1st Dept 2002]). It “allow [s] workers a reasonable period of time to clean the walkways,” and “is designed to relieve the worker(s) of any obligation to shovel snow while continuing precipitation or high winds are simply re-covering the walkways as fast as they are cleaned, thus rendering the effort fruitless” (id.). Thus, when weather conditions are no longer storm-like, or where a storm has turned to rainy conditions that neither imperil workers nor frustrate cleanup efforts, the temporary suspension of a property owner’s duty of care is no longer justified.

In accordance with these legal principles, in order for the Authority to establish its storm-in-progress defense and thus carry its prima facie burden on summary judgment, it had to proffer admissible evidence that at the time of Sherman’s accident there was an ongoing storm, or that the storm had ceased and a reasonable amount of time had not yet elapsed before the Authority was required to ameliorate the icy sidewalk conditions. In support of the motion, the Authority submitted deposition testimony from four individuals — Sherman, an Authority maintenance supervisor, and two other Authority employees — as well as a certified weather report from the National Climatic Data Center for Stewart International Airport, which is located five miles from where the accident occurred.

According to Sherman’s deposition testimony, on the date of his injury he was working as a state trooper at Troop T barracks in Newburgh, New York. In describing the weather conditions preceding the accident, Sherman stated there was an ice storm in the area the night before, that during his commute to work the next morning the weather consisted of a “wintry mix” of sleet and rain, and when he arrived at the barracks at 6:50 a.m. the weather was an “intermittent wintry mix.” He remained indoors until 8:15 a.m. when he left to respond to a traffic accident. When he stepped outside the barracks he noted that it “had warmed up considerably” and there was a light rain falling. He walked about eight feet before he slipped and fell on an icy area of the sidewalk.

The supervisor testified that the Authority was responsible for maintaining the sidewalks around the barracks, but during a storm they were a third priority, after the highways and service areas. Two construction equipment operators responsible for maintaining the roads during a storm, who worked the respective 3:00 p.m. to 11:00 p.m. and 11:00 p.m. to 7:00 a.m. shifts the night before and into the day of the accident, both recorded in their logs and testified at their depositions that it was raining. The climatological report for the airport, located five miles away from the barracks, indicated rain and mist and above-freezing temperatures from 10:45 p.m. the night before and for hours following on the day of the accident.

In opposition to the Authority’s motion, Sherman relied on his testimony and the evidence submitted by the Authority, as well as various daily logbooks from other members of the Authority’s salt and sand crew. The logbooks for the two construction equipment operators indicate that from 11:00 p.m. the night before the accident until 6:00 a.m. the day of, there was light to medium rain. Sherman argued that this evidence established the storm had ended hours before the accident, and no later than 5:45 a.m.

Applying the storm-in-progress rule, and giving Sherman every favorable inference, as the Court must on summary judgment (see De Lourdes Torres, 26 NY3d at 763), there are triable questions of material fact as to the actual weather conditions before and at the moment Sherman fell. Specifically, there are questions of fact as to when the storm ended, if at all, and if it did end, how much time had elapsed before Sherman slipped and fell on the icy sidewalk. The Authority claimed that the original ice storm was ongoing because at a minimum, winter precipitation continued during defendant’s drive to work, and rain was falling during a period of near-freezing temperatures. Sherman, on the other hand, argued that the storm was over when he sustained his injuries because by that time all roadwork had been completed, which would not be the case if the storm was ongoing, and at the time of his injury the weather had warmed up, producing light, and not freezing, rain.

We have never held that above-freezing rain alone constitutes a type of storm-in-progress that would relieve a property owner from taking any action to clear or maintain the property. Thus, if an ice storm has changed, due to warming weather, into mere rain, then the storm has ended. Applying this test the Authority’s summary judgment submissions do not establish whether the storm ended or, if so, whether insufficient time had elapsed to require the Authority to take protective measures. Sherman testified there was a wintry mix falling the night before and until 6:50 a.m. the day of the accident, and that at 8:15 a.m., when he exited the barracks, moments before his fall, the temperature was considerably warmer and it was raining. The Authority’s employees, logbooks, and the climatological report all corroborate his testimony that at least the hour before and at the time of the accident, the temperature was above-freezing and it was raining. The Authority’s crew workers’ depositions and logbooks indicated light to moderate rain throughout the night and the morning of the accident. Therefore, there remain triable questions of material fact as to whether the storm ended and, if so, when, requiring a trier of fact to resolve the nature of the precipitation both preceding and at the time of Sherman’s fall, and whether the rain conditions were storm-like. Furthermore, factual questions remain as to whether the precipitation was a post-storm event preventing the Authority from taking protective measures to avoid accidents from the accumulated icy conditions caused by the storm. In other words, if the storm conditions had passed, such that there was only above-freezing rain, then the justification for the storm-in-progress rule no longer holds water.

Contrary to the majority’s conclusory statement that “undisputed facts” establish a storm-in-progress at the time Sherman fell (majority mem at 1021), the summary judgment submissions demonstrate that the weather conditions are highly contested. Although the parties agree there was an ice storm the night before the accident, that is where their agreement ends. Given that the summary judgment proof in the form of Sherman’s testimony, the Authority’s employees’ statements and documentary evidence, and the climatological report, all indicate that above-freezing rain was falling in the hours before and at the time of the accident, material factual questions exist as to the nature of the weather conditions and the applicability of the storm-in-progress doctrine. To the extent the majority infers the storm-like nature of the precipitation, such inference favors the Authority as the moving party. However, on a summary judgment motion this Court must “view[ ] [the facts] in the light most favorable” to Sherman as the non-moving party, and “even if the jury at a trial could, or likely would, decline to draw inferences favorable to [Sherman],” the Court “must indulge all available inferences” in his favor (De Lourdes Torres, 26 NY3d at 763). Those inferences, at a minimum, lend support to Sherman’s argument that at the time of his accident the ice storm had passed, evidenced by the existence of nonfreezing rain, requiring the Authority to take appropriate safety measures to address the accumulated icy conditions.

Chief Judge DiFiore and Judges Pigott, Stein and Garcia concur; Judge Rivera dissents in an opinion in which Judges Abdus-Saxaam and Fahey concur.

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Anonymous, a Suspended Attorney, Appellant. Committee on Professional Standards, Respondent.
    Submitted March 14, 2016;
    decided May 5, 2016
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order as confirmed a confidential letter of caution, denied; motion for leave to appeal otherwise dismissed upon the ground that the remainder of the Appellate Division order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.

Judge Stein taking no part.


text:
    In the Matter of Brooke S.B., Respondent, v Elizabeth A.C.-C., Respondent. R. Thomas Rankin, Attorney for the Child, Appellant.
    Submitted May 2, 2016;
    decided May 6, 2016
   Motion by New York State Bar Association for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.

Judge Fahey taking no part.


text:
    In the Matter of Brooke S.B., Respondent, v Elizabeth A.C.-C., Respondent. R. Thomas Rankin, Attorney for the Child, Appellant.
    Submitted May 2, 2016;
    decided May 5, 2016
   Motion by American Academy of Adoption Attorneys et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.

Judge Fahey taking no part.


text:
    In the Matter of Brooke S.B., Respondent, v Elizabeth A.C.-C., Respondent. R. Thomas Rankin, Attorney for the Child, Appellant.
    Submitted May 2, 2016;
    decided May 5, 2016
   Motion by Sanctuary for Families et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.

Judge Fahey taking no part.


text:
    In the Matter of Brooke S.B., Respondent, v Elizabeth A.C.-C., Respondent. R. Thomas Rankin, Attorney for the Child, Appellant.
    Submitted May 2, 2016;
    decided May 5, 2016
   Motion by Lawyers for Children et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.

Judge Fahey taking no part.


text:
    The Burlington Insurance Company, Appellant, v NYC Transit Authority et al., Respondents.
    Submitted January 25, 2016;
    decided May 5, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Estrellita A., Respondent, v Jennifer L.D., Appellant.
    Submitted May 2, 2016;
    decided May 5, 2016
   Motion by Lawyers for Children et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.

Judge Fahey taking no part.


text:
    Peter E. Grevelding, Jr., as Executor of Jason M. Rhoades, Deceased, Respondent, v State of New York, Appellant.
    (Claim No. 109855.)
    Submitted February 16, 2016;
    decided May 5, 2016
   Motion for leave to appeal from the amended judgment of Supreme Court entered upon the October 2015 Appellate Division order dismissed upon the ground that the Appellate Division order, not the amended judgment, is the final appealable paper in this action (see CPLR 5611; Whitfield v City of New York, 90 NY2d 777 [1997]).

Judge Fahey taking no part.


text:
    In the Matter of Albert Harriott, Appellant, v Anthony J. Annucci, as Acting Commissioner of Corrections and Community Supervision, et al., Respondents.
    Submitted March 28, 2016;
    decided May 5, 2016
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]). The prior motion for leave to appeal made at the Appellate Division was untimely (see Arthur Karger, Powers of the New York Court of Appeals § 12:3 at 436-437 [3d ed rev 2005]).


text:
    In the Matter of Albert Harriott, Appellant, v Michael Sheahan, as Superintendent of Five Points Correctional Facility, Respondent.
    Submitted March 28, 2016;
    decided May 5, 2016
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]). The prior motion for leave to appeal made at the Appellate Division was untimely (see Arthur Karger, Powers of the New York Court of Appeals § 12:3 at 436-437 [3d ed rev 2005]).


text:
    In the Matter of Regan U. Lally, Appellant, v Richard E. Aebly, Respondent.
    Submitted March 7, 2016;
    decided May 5, 2016
   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:
    Leslie Karen Lariviere et al., Appellants, v New York City Transit Authority et al., Respondents, et al., Defendants.
    Submitted April 4, 2016;
    decided May 5, 2016
   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 (see Cuadrado v New York City Tr. Auth., 14 NY3d 748 [2010]; Butler v New York City Tr. Auth., 14 NY3d 909 [2010]).


text:
    In the Matter of Ming Tung et al., Appellants, v China Buddhist Association et al., Respondents.
    Submitted April 4, 2016;
    decided May 6, 2016
   Motion for reargument denied [see 26 NY3d 1152 (2016)].


text:
    NYCTL 2011-A Trust et al., Plaintiffs, v Da'jue Properties, Inc., Appellant, et al., Defendants. Fay Capital Corp., Nonparty Respondent.
    Submitted March 28, 2016;
    decided May 5, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Appellant, v Jamell R. McCullough, Respondent.
    Submitted May 2, 2016;
    decided May 5, 2016
   Motion by Innocence Project, Inc. for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    The People of the State of New York, Respondent, v Charles Smith, Appellant. The People of the State of New York, Respondent, v Tyrell Ingram, Appellant. The People of the State of New York, Respondent, v Isma McGhee, Also Known as Izzy, Appellant.
    Submitted May 2, 2016;
    decided May 5, 2016
   Motion by Legal Aid Society for leave to file a brief amicus curiae on the appeals herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    The People of the State of New York, Respondent, v Phillip Wright, Appellant.
    Submitted May 2, 2016;
    decided May 5, 2016
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 111 John Street, 9th Floor, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    Precast Restoration Services, LLC, Appellant, v Global Precast, Inc., Respondent, et al., Defendants.
    Submitted March 21, 2016;
    decided May 5, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    RW Holdings, LLC, Appellant, v Johanna Mayer et al., Respondents.
    Submitted February 29, 2016;
    decided May 5, 2016
   Motion for leave to appeal dismissed upon the ground that the January 2016 judgment sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Osqugama F. Swezey et al., Appellants, v Merrill Lynch, Pierce Fenner & Smith Inc., Respondent, and Philippine National Bank et al., Intervenors-Respondents, et al., Respondent.
    Submitted April 4, 2016;
    decided May 5, 2016
   Motion for a writ of King’s Bench etc. dismissed upon the ground that it does not lie (see NY Const, art VI, § 3; CPLR 5519 [c]).


text:
    In the Matter of Joel R. Brandes, a Disbarred Attorney.
    Submitted May 2, 2016;
    decided May 10, 2016
   Motion to preclude the Grievance Committee of the Tenth Judicial District from appearing as a respondent on the appeal herein denied; motion for a preference denied.

Judges Rivera and Stein taking no part.


text:
    Bridge Street Contracting Inc., Respondent, et al., Plaintiffs, v Everest National Insurance Company, Respondent, et al., Defendant. CastlePoint Insurance Company, Proposed Intervenor-Appellant.
    Submitted March 21, 2016;
    decided May 10, 2016
   Motion by CastlePoint Insurance Company for leave to appeal dismissed as untimely (see CPLR 5513 [b]; CPLR 2103 [b] [2]).


text:
    Melanie Butler, Respondent, v Magnet Sports & Entertainment Lounge, Inc., Doing Business as Magnet Sports & Entertainment Lounge and Another, Defendant, Morais Dicks, Appellant.
    Submitted March 28, 2016;
    decided May 10, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    James Carver et al., Appellants, v County of Nassau et al., Respondents.
    Submitted March 14, 2016;
    decided May 10, 2016
   Motion, insofar as it seeks leave to appeal as against defendants County of Nassau and Nassau County Police Department, 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 leave to appeal otherwise denied.


text:
    CIFG Assurance North America, Inc., Appellant, v Credit Suisse Securities (USA) LLC, Respondent.
    Submitted March 21, 2016;
    decided May 10, 2016
   Motion by the Association of Financial Guaranty Insurers for leave to appear amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    Julie Conason et al., Respondents, v Megan Holding, LLC, et al., Appellants.
    Submitted February 1, 2016;
    decided May 10, 2016
   Motion dismissed upon the ground that no action or proceeding is presently before the Court of Appeals. An application to enforce this Court’s remittitur, if such application properly lies, is by appeal, not motion (see Arthur Karger, Powers of the New York Court of Appeals § 5:30 at 193-194 [3d ed rev 2015]) [see 25 NY3d 1 (2015)].


text:
    In the Matter of Joseph T. Delgrande, Appellant, v Greenville Fire District et al., Respondents.
    Submitted March 28, 2016;
    decided May 10, 2016
   Motion for reargument of motion for leave to appeal denied with $100 costs and necessary reproduction disbursements [see 26 NY3d 918 (2016)].

Judge Garcia taking no part.


text:
    Terry Lane, Respondent, v Lydell Tyson, Appellant.
    Submitted March 21, 2016;
    decided May 10, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Dimitry Markov, Appellant, v Spectrum Group International Inc. et al., Respondents.
    Submitted March 21, 2016;
    decided May 10, 2016
   Motion, insofar as it seeks leave to appeal as against Stacks, LLC, dismissed upon the ground that as to that party the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    The People of the State of New York, Appellant, v Kenyatta James, Also Known as Nate Beander, Respondent.
    Submitted March 21, 2016;
    decided May 10, 2016
   Motion for reconsideration of this Court’s February 11, 2016 dismissal order denied [see 26 NY3d 1118 (2016)].

Judge Garcia taking no part.


text:
    Thomas Perkins et al., Respondents, v Philip Barry, Appellant, et al., Defendants.
    Decided May 10, 2016
   Appeal, insofar as taken from that portion of the Appellate Division order which dismissed appellant’s appeal, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved; appeal otherwise dismissed, without costs, by the Court of Appeals, sua sponte, 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:
    [52 NE3d 1174, 33 NYS3d 148]
    CRP/Extell Parcel I, L.P., Respondent, v Andrew M. Cuomo, in His Capacity as the Attorney General of the State of New York, et al., Respondents, and 3to4, LLC, et al., Appellants.
    Argued May 4, 2016;
    decided June 2, 2016

      APPEARANCES OF COUNSEL

      Cohen & Coleman, LLP, New York City (John A. Coleman, Jr., Richard N. Cohen and Joshua N. Cohen of counsel), for appellants.

      Boies, Schiller & Flexner LLP, Armonk (Jason C. Cyrulnik and Edward J. Normand of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Petitioner CRP/Extell Parcel I, L.P., the sponsor of newly-constructed luxury condominium units in Manhattan, filed an offering plan in 2006 with the Attorney General’s office. Under the plan, the purchaser of a unit was required to make a down payment upon the signing of a purchase agreement, with the down payment to be held in an interest-bearing escrow account. The plan also provided that, if the first closing did not occur by September 1, 2008, the purchaser would have the right to rescind the purchase agreement and have the down payment plus any interest earned returned.

Respondents constitute 41 purchasers who entered into purchase agreements with CRP between 2006 and 2008. When the first closing did not occur by the rescission date, the purchasers demanded return of their down payments. CRP refused, claiming that the September 1, 2008 date indicated in the plan was a “scrivener’s error” and that the actual rescission date should have been September 1, 2009. The purchasers filed applications seeking release of their down payments with the Attorney General who, after considering all the relevant facts and legal issues presented by the parties, found in the purchasers’ favor and ordered the down payments returned.

CRP then brought this hybrid CPLR article 78 proceeding challenging the Attorney General’s determinations as arbitrary and capricious and seeking reformation of the purchase agreements based on the claimed scrivener’s error.

In January 2012, Supreme Court denied CRP’s petition to annul the Attorney General’s determinations, directed the release and return of the down payments with accumulated escrow interest, and dismissed the action (34 Misc 3d 1214[A], 2012 NY Slip Op 50073[U] [Sup Ct, NY County 2012]). CRP appealed to the Appellate Division, which affirmed Supreme Court’s judgment (101 AD3d 473 [1st Dept 2012]). In December 2012, CRP returned the down payments and accumulated escrow interest to the purchasers.

While CRP was appealing Supreme Court’s judgment dismissing its action, some of the purchasers filed a motion seeking an award of statutory interest under Civil Practice Law and Rules § 5001. Supreme Court granted the motion (2012 NY Slip Op 32329[U] [Sup Ct, NY County 2012]), and in August 2013, directed entry of a judgment of approximately $4.9 million, representing interest at the statutory rate. Upon appeal, the Appellate Division reversed; the Court denied the purchasers’ motion and vacated the statutory interest judgment (124 AD3d 560 [1st Dept 2015]).

We agree with the Appellate Division that Supreme Court lacked jurisdiction to award statutory interest on the January 2012 judgment that dismissed the petition. Contrary to the purchasers’ contention, the January 2012 paper, denominated an “order,” was a final judgment dismissing the proceeding (see Matter of De Paula v Memory Gardens, 90 AD2d 886, 886 [3d Dept 1982]). Once Supreme Court dismissed CRP’s petition and judgment was entered, the court was without jurisdiction to entertain the purchasers’ postjudgment motion for statutory interest (see CPLR 7806; see also De Paula, 90 AD2d at 886).

Chief Judge DiFiore and Judges Pigott, Rivera, Abdus-Salaam, Stein, Fahey and Garcia concur.

Order affirmed, with costs, and certified question answered in the affirmative, in a memorandum.


text:
    [53 NE3d 705, 33 NYS3d 828]
    The People of the State of New York, Respondent, v Bobby Wallace, Appellant.
    Argued March 22, 2016;
    decided April 28, 2016

      APPEARANCES OF COUNSEL

      Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York City (.Katherine Kelly Fell and Kyle Adam Wirshba of counsel), and Seymour W. James, Jr., The Legal Aid Society, New York City (Lawrence T. Hausman of counsel), for appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City {Ellen Stanfield Friedman and Sylvia Wertheimer of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant failed to preserve for this Court’s review the two arguments he now raises on appeal.

Defendant argues that, irrespective of the surrounding circumstances, his admission that he struck the victim, in response to police questioning, placed him in custody such that his subsequent statement — and the weapon he ultimately produced to the police — should have been suppressed as the involuntary product of a custodial interrogation. It is undisputed that defendant was not advised of his rights under Miranda v Arizona (384 US 436 [1966]) before making the statement and producing the physical evidence at issue.

We cannot reach defendant’s present argument because he failed to make it to the suppression court and that court did not, “ ‘in response to a protest by a party, . . . expressly decide [ ] the question raised on appeal’ ” (People v Graham, 25 NY3d 994, 996 [2015], quoting CPL 470.05 [2]). Before Supreme Court, defendant sought to suppress the statement and weapon upon the ground that, considering all of the circumstances of the street encounter, he was in custody at the relevant time inasmuch as a reasonable innocent person in defendant’s position would not have felt free to leave. The court denied defendant’s motion solely upon the ground that the police questioning was investigatory, not interrogatory, in nature.

Defendant also contends that the trial court’s handling of a jury request to take notes during a re-reading of a portion of the charge constituted a mode of proceedings error requiring reversal despite his conceded failure to preserve the issue by not raising it before that court (see generally People v O’Rama, 78 NY2d 270 [1991]). We disagree. Under these circumstances, the jury’s request was “not the kind of substantive [request] that implicates O’Rama” (People v Mays, 20 NY3d 969, 971 [2012]). “Nor did the court commit a mode of proceedings error by delegating delivery of its answer to [the] jury question to a court officer” inasmuch as the “task was in this context practically ministerial” (People v Williams, 21 NY3d 932, 935 [2013]). Consequently, “preservation was required” and defendant’s admitted failure to do so precludes our review (Mays, 20 NY3d at 971).

Chief Judge DiFiore and Judges Pigott, Rivera, Abdus-Salaam, Stein, Fahey and Garcia concur.

Order affirmed, in a memorandum.


text:
    [53 NE3d 730, 33 NYS3d 853]
    Friends of Thayer Lake LLC et al., Appellants, v Phil Brown, Respondent, and State of New York et al., Intervenors-Respondents, et al., Defendant.
    Argued March 24, 2016;
    decided May 10, 2016

      APPEARANCES OF COUNSEL

      McPhillips, Fitzgerald & Cullum, LLP, Glens Falls (.Dennis J. Phillips of counsel), for appellants.

      Caffry & Flower, Glens Falls {John W. Caffry and Claudia K. Braymer of counsel), for Phil Brown, respondent.

      Eric T. Schneiderman, Attorney General, Albany {Brian D. Ginsberg, Barbara D. Underwood, Andrea Oser, Andrew B. Ayers and Philip M. Bein of counsel), for State of New York and another, respondents.

      Pacific Legal Foundation, Palm Beach Gardens, Florida {Mark Miller, of the Florida bar, admitted pro hac vice, of counsel), and New York Farm Bureau, Inc., Albany {Elizabeth C. Dribusch of counsel), for Pacific Legal Foundation and others, amici curiae.

      Diane Van Epps Finnegan, Manlius, for Adirondack Landowners Association, amicus curiae.

      Adirondack Mountain Club, Inc., Lake George {Neil F. Wood-worth of counsel), and Schoeman Updike & Kaufman LLP, New York City {Charles B. Updike and Jeremy M. Weintraub of counsel), for Adirondack Mountain Club, Inc., and another, amici curiae.

      Hancock Estabrook, LLP, Syracuse {Alan J. Pierce of counsel), for Empire State Forest Products Association, amicus curiae.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, without costs, by denying defendants’ motions for summary judgment and, as so modified, affirmed.

Plaintiffs are the collective owners of real property in a remote area of the Adirondack Mountains. The property is bounded on the north by the William C. Whitney Wilderness Area, which consists of more than 20,000 acres of state forest preserve land. The Wilderness Area was privately owned, at least during the twentieth century, until fully acquired by the State in 1998. Within the Wilderness Area, a network of lakes, ponds, streams, and canoe carry trails known as the Lila Traverse Section of the Whitney Loops permits canoe travel between two lakes on opposite sides of the Wilderness Area.

The parties’ dispute concerns the Mud Pond Waterway, a two-mile-long system of ponds and streams within the Lila Traverse that crosses plaintiffs’ property. Shortly after the Wilderness Area entered public ownership, defendant New York State Department of Environmental Conservation constructed a 0.8-mile carry trail in order to permit canoe travelers to avoid the Waterway and complete the Lila Traverse without entering plaintiffs’ property. Defendants now assert that members of the public are not obligated to use the carry trail, as the Waterway is subject to a public right of navigation. We are asked to determine whether the Waterway is navigable-in-fact and therefore open to public use.

As a general principle, if a waterway is not navigable-in-fact, “it is the private property of the adjacent landowner” (Adirondack League Club v Sierra Club, 92 NY2d 591, 601 [1998]). A waterway that is navigable-in-fact, however, “is considered a public highway, notwithstanding the fact that its banks and bed are in private hands” (id., citing Morgan v King, 35 NY 454 [1866]; see Van Cortlandt v New York Cent. R.R. Co., 265 NY 249, 254-255 [1934]; Fulton Light, Heat & Power Co. v State of New York, 200 NY 400, 412 [1911]). To be subject to this public easement, a waterway must provide practical utility to the public as a means for transportation, whether for trade or travel (Adirondack League Club, 92 NY2d at 603). In Adirondack League Club, though we did “not broaden the standard for navigability-in-fact,” we held that recreational use may properly be “part of the navigability analysis” (id.).

Though the parties dispute the Waterway’s navigability, they do not want a trial. Instead, the parties jointly requested a determination as a matter of law upon their respective motions for summary judgment, contending that the material facts are fully and accurately presented in the record and are not in significant dispute. Supreme Court expressed a clear reluctance to honor this request, noting its inclination to determine that sufficient issues of fact exist to preclude the issuance of summary judgment. The Appellate Division, while noting that determinations of navigability are “heavily dependent on factual evidence and assessments,” granted the parties’ mutual request to resolve the matter as a question of law (Friends of Thayer Lake LLC v Brown, 126 AD3d 22, 25 [3d Dept 2015]). Nonetheless, both lower courts granted the parties’ request to resolve the dispute as a matter of law, concluding that parties in a civil dispute may “chart their own course in litigation” and may “agree upon the factual basis for the resolution of a legal controversy” (id., citing Matter of Kaczor v Kaczor, 101 AD3d 1403, 1404-1405 [3d Dept 2012]).

Such freedom, however, must give way to certain practical restraints: A waterway’s navigability is a highly fact-specific determination that cannot always be resolved as a matter of law (Adirondack League Club, 92 NY2d at 605). On a motion for summary judgment, the moving party must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d 40, 49 [2015]). Summary judgment is inappropriate in any case where there are material issues of fact in dispute or where more than one conclusion may be drawn from the established facts (Kriz v Schum, 75 NY2d 25, 33-34 [1989]).

Notably, in lieu of a stipulated statement of facts, the parties submitted an expansive record containing, among other things, documents, maps, photographs, letters, articles, guidebooks, video footage, diaries, testimony, and affidavits. They now seek a determination “as a matter of law” based on the agreed-upon facts that may be gleaned therefrom. While in this proceeding, a stipulated statement of facts is not a prerequisite for the issuance of summary judgment, its absence is notable where, as here, the parties have amassed a voluminous and detailed record, and seek a legal resolution of an inherently fact-intensive determination.

On this record, we must decline the parties’ invitation to award judgment as a matter of law. Contrary to their claim, the parties have presented conflicting or inconclusive evidence with regard to a number of material facts and the inferences they wish to be drawn from those facts. The record is not conclusive with regard to, for instance, the Waterway’s historical and prospective commercial utility, the Waterway’s historical accessibility to the public, the relative ease of passage by canoe, the volume of historical travel, and the volume of prospective commercial and recreational use. Collectively, these factual assessments present material considerations that, left unresolved, permit more than one conclusion to be drawn concerning the Waterways practical utility (Adirondack League Club, 92 NY2d at 605-607; see Morgan, 35 NY at 459-460; People ex rel. Lehigh Val. Ry Co. v State Tax Commn., 247 NY 9, 11-12 [1928]; People ex rel. Erie R.R. Co. v State Tax Commn., 266 App Div 452, 454 [3d Dept 1943]). As material questions of fact remain, neither party has demonstrated prima facie entitlement to summary judgment, and the competing evidence must be weighed and the credibility of the witnesses must be assessed by a factfinder (Adirondack League Club, 92 NY2d at 600). These factual determinations and their relative weight — as well as the “ultimate conclusion” of navigability-in-fact — are for the trier of fact based on the evidence (Adirondack League Club, 92 NY2d at 605). We therefore hold that sufficient issues of fact exist to preclude the issuance of summary judgment.

Chief Judge DiFiore and Judges Pigott, Rivera, Abdus-Salaam, Stein, Fahey and Garcia concur.

Order modified, without costs, by denying defendants’ motions for summary judgment and, as so modified, affirmed, in a memorandum.


text:
    In the Matter of Maureen Abramoski et al., Appellants, v New York State Education Department et al., Respondents, et al., Respondents.
    Submitted March 28, 2016;
    decided June 7, 2016
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order as affirmed the Supreme Court order denying the motion to vacate the judgment, dismissed upon the ground that such portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Angel R. Administration for Children’s Services, Respondent; Syheid R., Appellant. (Proceeding No. 1.) In the Matter of Farrelle J. Administration for Children’s Services, Respondent; Syheid R., Appellant. (Proceeding No. 2.) In the Matter of Tarrelle J. Administration for Children’s Services, Respondent; Syheid R., Appellant. (Proceeding No. 3.) In the Matter of Safire J. Administration for Children’s Services, Respondent; Syheid R., Appellant. (Proceeding No. 4.) In the Matter of Sonia J. Administration for Children’s Services, Respondent; Syheid R., Appellant. (Proceeding No. 5.)
    Submitted April 11, 2016;
    decided June 7, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceedings within the meaning of the Constitution.


text:
    Santokh S. Badesha et al., Respondents, v Parminder S. Soch et al., Appellants.
    Submitted April 11, 2016;
    decided June 7, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Hilary Best, Appellant, v Barry A. Schwartz, Respondent.
    Submitted April 11, 2016;
    decided June 7, 2016
   Motion for reconsideration of this Court’s February 23, 2016 dismissal order etc. denied [see 26 NY3d 1133 (2016)].


text:
    Amy Braunstein, Respondent, v David J. Braunstein, Appellant. (Action No. 1.)
    Submitted April 11, 2016;
    decided June 7, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Michael Garry, Appellant, v American Standard Trane, Inc., et al., Respondents. Workers’ Compensation Board, Respondent.
    Submitted April 4, 2016;
    decided June 7, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of John Z., Appellant. Commissioner of Mental Health, Respondent.
    Decided June 7, 2016
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Dieudonne Muboyayi, Appellant, v Monica Quintero et al., Respondents.
    Submitted April 18, 2016;
    decided June 7, 2016
   Motion, insofar as it seeks leave to appeal from the portion of the Appellate Division order that affirmed the August 2014 Supreme Court order conditionally precluding plaintiff’s testimony at trial, dismissed upon the ground that such portion of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Pascazi Law Offices, PLLC, Appellant, v Pioneer Natural Pools, Inc., et al., Respondents.
    Submitted April 11, 2016;
    decided June 7, 2016
   Motion, insofar as it seeks leave to appeal as against Taconic Holdings, LLC, dismissed upon the ground that as to it the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Juvondi Pender, Appellant, v Morris Duffy Alonso Faley, LLP, Respondent.
    Submitted April 11, 2016;
    decided June 7, 2016
   Motion for reargument of motion for leave to appeal denied [see 26 NY3d 1137 (2016)].


text:
    Robert L. Schulz, Appellant, et al., Plaintiffs, v Andrew M. Cuomo et al., Respondents, et al., Defendants.
    Submitted April 18, 2016;
    decided June 7, 2016
   Motion for reconsideration of this Court’s February 23, 2016 dismissal order denied [see 26 NY3d 1139 (2016)].

Chief Judge DiFiore taking no part.


text:
    Robert L. Schulz, Appellant, et al., Plaintiffs, v State of New York Executive et al., Respondents.
    Submitted April 18, 2016;
    decided June 7, 2016
   Motion for reconsideration of this Court’s February 23, 2016 dismissal order denied [see 26 NY3d 1139 (2016)].

Chief Judge DiFiore and Judge Stein taking no part.


text:
    In the Matter of the Claim of Mary Ann Tango, Appellant. Commissioner of Labor, Respondent.
    Submitted April 11, 2016;
    decided June 7, 2016
   Motion for reargument of motion for leave to appeal denied [see 26 NY3d 1128 (2016)].

Judge Garcia taking no part.


text:
    In the Matter of the Arbitration between USAA Insurance Company, Respondent, and Daniel B. Armstrong et al., Appellants.
    Submitted April 4, 2016;
    decided June 7, 2016
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals has jurisdiction to entertain a motion for leave to appeal pursuant to CPLR 5602 (a) (1) (ii) from a final paper where a prior nonfinal Appellate Division order necessarily affects that paper, and such is not the case here.


text:
    [54 NE3d 69, 34 NYS3d 397]
    Red Zone LLC, Respondent, v Cadwalader, Wickersham & Taft LLP, Appellant.
    Argued April 27, 2016;
    decided June 2, 2016

      APPEARANCES OF COUNSEL

      Cravath, Swaine & Moore LLP, New York City {David R. Marriott of counsel), for appellant.

      Jeffrey A. Jannuzzo, New York City, and Hinman Straub PC, Albany {James T. Potter of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should he modified, with costs, by denying plaintiff’s motion for summary judgment and reinstating defendant’s affirmative defenses of the statute of limitations and comparative negligence and, as so modified, affirmed.

Viewing the evidence in the light most favorable to defendant as the non-movant (see generally Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012]; Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 339 [2011]), material triable questions of fact exist regarding whether defendant failed to exercise the ordinary reasonable skill and knowledge commonly possessed by members of the legal profession {see Dombrowski v Bulson, 19 NY3d 347, 350 [2012]). While a party may not create a feigned issue of fact to defeat summary judgment (see S.J. Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338, 341 [1974]), contrary to plaintiff’s assertion here, the affidavit of the attorney who represented plaintiff did not flatly contradict his prior deposition testimony. Therefore, the affidavit should have been considered in opposition to plaintiff’s motion.

Similarly, plaintiff did not meet its burden of demonstrating that defendant’s statute of limitations defense fails as a matter of law. Specifically, triable questions of fact exist regarding whether the statute of limitations was tolled by the continuous representation doctrine in light of: the significant gap in time between the alleged malpractice and the later communications between the parties; the changed nature of the alleged legal representation of plaintiff by defendant; the absence of any clear delineation of the period of such representation; and defendant’s submission of affidavits disclaiming any mutual understanding of legal representation after 2005 (see generally Grace v Law, 24 NY3d 203, 212 [2014]).

Judges Pigott, Rivera, Abdus-Salaam, Stein and Garcia concur; Chief Judge DiFiore and Judge Fahey taking no part.

Order modified, with costs, by denying plaintiff’s motion for summary judgment and reinstating defendant’s affirmative defenses of statute of limitations and comparative negligence and, as so modified, affirmed, in a memorandum.


text:
    [54 NE3d 78, 34 NYS3d 406]
    Dryden Mutual Insurance Company, Appellant, v Stanley Goessl et al., Defendants, and AP Daino & Plumbing, Inc., et al., Respondents.
    Argued April 28, 2016;
    decided June 7, 2016

      APPEARANCES OF COUNSEL

      Knych & Whritenour, LLC, Syracuse (Peter W. Knych of counsel), and Bruce R. Bryan, Syracuse, for appellant.

      Kenney Shelton Liptak Nowak LLP, Buffalo (Jessica L. Fos-colo and Robert A. Crawford of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

In this insurance coverage dispute, plaintiff Dryden Mutual Insurance Company seeks a declaratory judgment that it does not have a duty to defend and indemnify defendant Stanley Goessl in an underlying tort action. Dryden Mutual also seeks a declaration that defendant The Main Street America Group has a duty to defend and indemnify Goessl. To determine which insurance policy provides coverage to Goessl, the courts below were required to apply principles of contract interpretation to the insurance policies (see Matter of Covert, 97 NY2d 68, 76 [2001]). In doing so, a factual question arose and the lower courts reached opposite conclusions, based on their own findings of fact, as to whether Dryden Mutual or Main Street has a duty to defend and indemnify Goessl.

Where, as here, the Appellate Division makes new factual findings and reverses the trial court’s factual findings, we must determine which court’s findings “more nearly comport with the weight of the evidence” (Oelsner v State of New York, 66 NY2d 636, 637 [1985]). Upon review of the record, we conclude that the Appellate Division’s factual findings more nearly comport with the weight of the evidence. Therefore, Dryden Mutual has a duty to defend and indemnify Goessl in the underlying tort action and Main Street has no such duty.

Chief Judge DiFiore and Judges Pigott, Rivera, Abdus-Salaam, Stein and Garcia concur; Judge Fahey taking no part.

Order affirmed, with costs, in a memorandum.


text:
    Susan Aranoff, Respondent, v Gerald Aranoff, Appellant.
    Submitted April 25, 2016;
    decided June 9, 2016
   Motion for reargument of motion for leave to appeal denied [see 27 NY3d 971 (2016)].


text:
    James Brady, Appellant, v 450 West 31st Street Owners Corp. et al., Respondents. (And Another Action.)
    Submitted April 18, 2016;
    decided June 9, 2016
   Motion for reargument of motion for leave to appeal denied [see 27 NY3d 948 (2016)]. Motion for a stay dismissed as academic.


text:
    In the Matter of Amy R. Gurvey (admitted as Amy Rebecca Weissbrod), an Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted April 25, 2016;
    decided June 9, 2016
   Motion for leave to appeal dismissed for failure to establish timeliness as required by section 500.22 (b) (2) of the Rules of Practice of the Court of Appeals (22 NYCRR 500.22 [b] [2]).

Judge Abdus-Salaam taking no part.


text:
    Joan C. Lipin, Appellant, v David E. Hunt, Defendant, and Danske Bank et al., Respondents.
    Submitted April 18, 2016;
    decided June 9, 2016
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion to disqualify Allegaert Berger & Vo-gel LLP et al. from appearing before this Court etc. denied.


text:
    Teddy Moore, Appellant, v Frank Guerra, Defendant, and City of New York et al., Respondents.
    Submitted April 18, 2016;
    decided June 9, 2016
   Motion for reargument of motion for leave to appeal denied [see 27 NY3d 975 (2016)]. Motion for poor person relief dismissed as academic.


text:
    In the Matter of 111-35 75th Ave. Owners Corp., Respondent, v Sarah Hendrix, Appellant, et al., Respondents.
    Submitted April 25, 2016;
    decided June 9, 2016
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain a motion for leave to appeal from an order of the Appellate Division entered in a proceeding commenced in the Civil Court of the City of New York (see NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]).


text:
    The People of the State of New York, Respondent, v Jude Francis, Appellant.
    Submitted March 21, 2016;
    decided June 9, 2016
   Motion by Youth Represent et al. for leave to file a brief amici curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    PS 157 Lofts, LLC, Respondent, v Kimberly Austin et al., Appellants.
    Submitted April 25, 2016;
    decided June 9, 2016
   On the Court’s own motion, appeal transferred, without costs, to the Appellate Term, 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 (see NY Const, art VI, §§ 3 [b] [2]; 5 [b]; CPLR 5601 [b] [2]). Motion to dismiss appeal denied.


text:
    Joseph T. Stearns, Appellant, v Kenny & Stearns et al., Respondents.
    Submitted April 25, 2016;
    decided June 9, 2016
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]; 2103 [b] [2]).


text:
    In the Matter of Suit-Kote Corporation, Appellant, v Peter M. Rivera, as New York State Commissioner of Labor, Respondent.
    Submitted April 11, 2016;
    decided June 9, 2016
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    Abuwi M. Waheed, Appellant, v City of New York et al., Respondents.
    Submitted April 18, 2016;
    decided June 9, 2016
   Motion for reargument of motion for leave to appeal denied [see 26 NY3d 1141 (2016)].

Judge Abdus-Salaam taking no part.


text:
    [54 NE3d 1163, 35 NYS3d 292]
    Dylan P., an Infant, by His Mother and Natural Guardian, Raisa L., et al., Respondents, v Webster Place Associates, L.P., Appellant.
    Decided June 2, 2016

      APPEARANCES OF COUNSEL

      Gannon, Rosenfarb & Drossman, New York City (Lisa L. Gokhulsingh of counsel), for appellant.

      Alexander J. Wulwick, New York City, for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, and certified question answered in the affirmative. Material questions of fact remain regarding whether defendant had constructive notice of a dangerous condition.

Concur: Chief Judge DiFiore and Judges Pigott, Rivera, Abdus-Salaam, Stein, Fahey and Garcia.