text:
    Luna Lighting, Inc., Appellant, v Just Industries, Inc., Respondent, et al., Defendants.
    Submitted July 21, 2008;
    decided September 4, 2008
   Motion for reargument of motion for leave to appeal denied with $100 costs and necessary reproduction disbursements [see 10 NY3d 712 (2008)].


source: Caselaw Access Project

license: Public Domain

text:
    Jerome McSorley, Appellant, v Kay L. Spear, Respondent.
    Submitted August 11, 2008;
    decided September 4, 2008
   Motion for reargument of motion for leave to appeal denied with $100 costs and necessary reproduction disbursements [see 10 NY3d 715 (2008)].


text:
    Diane Morris, Appellant, v Solow Management Corporation Townhouse Company, L.L.C., et al., Respondents, et al., Defendants.
    Submitted June 23, 2008;
    decided September 4, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Elaine Pachter, Respondent, v Bernard Hodes Group, Inc., Appellant.
    Submitted July 21, 2008;
    decided September 4, 2008
   Motion for reargument denied [see 10 NY3d 609 (2008)].


text:
    Joan E. Peebles, Respondent, v Robert M. Peebles Jr. et al., Respondents, et al., Defendants, and David Peebles, Appellant.
    Submitted July 14, 2008;
    decided September 4, 2008
   Motion for reargument of motion for leave to appeal denied [see 10 NY3d 893 (2008)].


text:
    The People of the State of New York, Respondent, v Juan Carlos Aleman, Appellant.
    Submitted September 2, 2008;
    decided September 4, 2008
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Donald France, Appellant.
    Submitted September 2, 2008;
    decided September 4, 2008
   Motion for assignment of counsel granted and Steven Banks, Esq., the Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    In the Matter of the Estate of Ellen Piterniak, Deceased. Robert J. Piterniak et al., Appellants; Ellen Cinque, Respondent.
    Submitted August 18, 2008;
    decided September 4, 2008
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Seasia D. Mr. Anonymous et al., Appellants; Kareem W., Respondent. Tenisha D., Nonparty Respondent.
    Submitted July 21, 2008;
    decided September 4, 2008
   Motion for reargument denied [see 10 NY3d 879 (2008)].


text:
    In the Matter of Richard Stevens (Admitted as Richard Zelma), a Disbarred Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted July 28, 2008;
    decided September 4, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Santos Suarez, Appellant, v John Byrne, as Acting Justice of the Supreme Court, Bronx County, et al., Respondents.
    Submitted July 7, 2008;
    decided September 4, 2008
   Motion for reargument denied [see 10 NY3d 523 (2008)].


text:
    TAG 380, LLC, Respondent, v ComMet 380, Inc., Appellant. (And a Third-Party Action.)
    Submitted July 14, 2008;
    decided September 4, 2008
   Motion for reargument denied [see 10 NY3d 507 (2008)].


text:
    In the Matter of Tax Liens. Vincent Terio, Appellant; County of Putnam, Respondent.
    Submitted June 30, 2008;
    decided September 4, 2008
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Vincent Terio, Appellant, v Systems & Services Technologies, Inc., Respondent.
    Submitted June 30, 2008;
    decided September 4, 2008
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Yujo Velasquez, Appellant, v Edward Davidowitz, as Justice of the Supreme Court, Bronx County, et al., Respondents. (And Another Proceeding.)
    Submitted June 30, 2008;
    decided September 4, 2008
   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. Motion for a stay dismissed as academic. Motion for poor person relief dismissed as academic.


text:
    [895 NE2d 518, 865 NYS2d 589]
    In the Matter of Mary Ellis, Respondent, v Kevin P. Mahon et al., Appellants.
    Decided September 9, 2008

      APPEARANCES OF COUNSEL

      Charlene M. Indelicato, County Attorney, White Plains (Thomas G. Gardiner of counsel), for appellants.

      Lovett & Gould, LLP, White Plains (Jane Bilus Gould of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Petitioner, employed as an eligibility examiner tasked with processing food stamp applications, consistently processed such applications in particularly late fashion, even after multiple warnings concerning her poor performance. Accordingly, we cannot conclude that the penalty of termination shocks the judicial conscience (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 233-234 [1974]). We reiterate that the Appellate Division has no discretionary authority or interest of justice jurisdiction in this CPLR article 78 proceeding to review the penalty imposed by respondent Commissioner of the Westchester County Department of Social Services (see Matter of Torrance v Stout, 9 NY3d 1022, 1023 [2008]; Matter of Rutkunas v Stout, 8 NY3d 897, 899 [2007]).

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

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


text:
    [894 NE2d 1192, 864 NYS2d 802]
    Victor Peri et al., Respondents, v City of New York, Appellant, et al., Defendants.
    Decided September 9, 2008

      APPEARANCES OF COUNSEL

      Michael A. Cardozo, Corporation Counsel, New York City (Karen M. Griffin of counsel), for appellant.

      Fitzgerald & Fitzgerald, P.C., Yonkers (John M. Daly of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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 for the reasons stated in the memorandum at the Appellate Division (44 AD3d 526 [1st Dept 2007]).

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


text:
    [896 NE2d 75, 866 NYS2d 592]
    Anthony Quattrocchi, Respondent, v F.J. Sciame Construction Corp., Respondent. F.J. Sciame Construction Co., Inc., Sued Herein as F.J. Sciame Construction Corp., Third-Party Plaintiff-Respondent, v Complete Construction Consortium, Inc., Third-Party Defendant-Respondent, and United Airconditioning Corp., Third-Party Defendant-Appellant.
    Decided September 9, 2008

      APPEARANCES OF COUNSEL

      Smith Mazure Director Wilkins Young & Yagerman, P.C., New York City (Joel M. Simon of counsel), for third-party appellant.

      Sacks and Sacks LLP, New York City (Scott N. Singer of counsel), for respondent.

      Quirk and Bakalor, P.C., New York City (Dara L. Rosenbaum), for Complete Construction Consortium, Inc., third-party respondent.

      Nicoletti Hornig & Sweeney, New York City (Barbara A. Sheehan of counsel), for F.J. Sciame Construction Co., Inc., for third-party respondent.
   OPINION OF THE COURT

Memorandum.

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

As our holding in Outar v City of New York indicates, “falling object” liability under Labor Law § 240 (1) is not limited to cases in which the falling object is in the process of being hoisted or secured (5 NY3d 731 [2005], affg 11 AD3d 593 [2d Dept 2004]). In this case, plaintiff alleges that he was struck by falling planks that had been placed over open doors as a makeshift shelf to facilitate the installation of an air conditioner above a doorway. We agree with the Appellate Division majority that triable questions of fact preclude summary judgment on plaintiffs Labor Law § 240 (1) claim, including whether the planks were adequately secured in light of the purposes of the plank assembly and whether plaintiff caused the accident by jostling the doors after disregarding a warning not to enter the doorway area. Accordingly, the Appellate Division properly modified Supreme Court’s order to the extent of denying partial summary judgment on plaintiffs Labor Law § 240 (1) claim.

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

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


text:
    AG Capital Funding Partners, L.P., et al., Appellants, v State Street Bank and Trust Company, Respondent. (And Other Actions.)
    Submitted August 4, 2008;
    decided September 9, 2008
   Motion for reargument denied [see 11 NY3d 146 (2008)].


text:
    Arlene C. Farkas, Appellant-Respondent, v Bruce R. Farkas, Respondent-Appellant.
    Submitted August 25, 2008;
    decided September 9, 2008
   Motion to strike a portion of appellant-respondent’s brief denied with $100 costs and necessary reproduction disbursements.


text:
    Arlene C. Farkas, Appellant-Respondent, v Bruce R. Farkas, Respondent-Appellant.
    Submitted September 8, 2008;
    decided September 9, 2008
   Motion to strike appellant-respondent’s supplemental submission denied with $100 costs and necessary reproduction disbursements.


text:
    Vicky R. Gabay, Respondent, v Irving Bender et al., as Personal Representatives of William Gottlieb and Molly Bender, Deceased, Appellants. Allan H. Carlin, Esq., Nonparty Appellant.
    Submitted May 19, 2008;
    decided September 9, 2008
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Shawn Green, Appellant, v Donald Selsky, as Director of Special Housing and Inmate Disciplinary Programs, et al., Respondents.
    Submitted August 4, 2008;
    decided September 9, 2008
   Motion for reargument of motion for leave to appeal denied [see 10 NY3d 716 (2008)].


text:
    In the Matter of Vivian L. Hausch, a Suspended Attorney, Appellant.
    Submitted July 21, 2008;
    decided September 9, 2008
   Motion for reargument of motion for leave to appeal denied [see 10 NY3d 713 (2008)].


text:
    JPMorgan Chase Bank, N.A., Appellant, v Rocar Realty Northeast, Inc., Respondent, et al., Defendant.
    Submitted June 16, 2008;
    decided September 9, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Samson Odumbo, Respondent, v Gamage D. Perera, Appellant.
    Submitted July 21, 2008;
    decided September 9, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    One Beacon Insurance Company, as Subrogee of Dooney & Bourke, Inc., Respondent, v French Institute Alliance Francais NYC, Appellant, et al., Defendants.
    Submitted June 23, 2008;
    decided September 9, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v Kenneth Goodwin, Appellant.
    Submitted July 28, 2008;
    decided September 9, 2008
   Motion for reargument denied [see 10 NY3d 713 (2008)]. Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York, Respondent, v Dwayne Middleton, Appellant.
    Submitted June 19, 2008;
    decided September 9, 2008
   Motion for leave to appeal granted. Motion for poor person relief granted.


text:
    Owen J. Peterson et al., Appellants, v Commerce Street Properties, Inc., Respondent.
    Submitted June 30, 2008;
    decided September 9, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    James Shovak, Appellant, v Long Island Commercial Bank, Respondent.
    Submitted June 16, 2008;
    decided September 9, 2008
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that denied appellant’s cross motion for leave to amend the complaint, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    [896 NE2d 660, 867 NYS2d 25]
    Stanley Okun, Respondent, v Paul Tanners, Appellant.
    Decided September 11, 2008

      APPEARANCES OF COUNSEL

      Rosenberg Feldman Smith, LLP, New York City (Michael H. Smith and Richard B. Feldman of counsel), for appellant.

      Shaw, Licitra, Gulotta, Esernio & Henry, P.C., Garden City (Thomas M. Hoey, Jr., of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, plaintiff’s cross motion to restore the action to the calendar denied and defendant’s motion to dismiss the action as abandoned dismissed as unnecessary. The certified question should be answered in the negative.

Under the circumstances, plaintiffs conclusory and unsubstantiated claim of law office failure does not constitute a reasonable excuse for the 20-month delay in pursuing the action. Further, plaintiffs inactivity between the time the action was marked off the calendar and defendant’s motion to dismiss fails to rebut the presumption of abandonment that arose pursuant to CPLR 3404.

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

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


text:
    [896 NE2d 77, 866 NYS2d 594]
    Damon Frutchey, an Infant, by Gregg Frutchey, His Parent and Guardian, et al., Appellants, v Jacqueline Felicita, Defendant, and Michael V. DeLosa et al., Respondents.
    Decided September 11, 2008

      APPEARANCES OF COUNSEL

      Friedlander, Friedlander & Arcesi, P.C., Waverly (William S. Friedlander of counsel), for appellants.

      Coughlin & Gerhart LLP, Binghamton (Keith A. O’Hara of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the motion by defendants Michael V. DeLosa and Allen’s Plumbing, Heating and Air Conditioning, Inc. for summary judgment denied. Plaintiffs raised triable issues of fact concerning whether (1) defendant DeLosa acted negligently in traveling at an excessive speed and in following too closely to Nichols’s vehicle, given the road and weather conditions and, (2) if so, such negligence was a proximate cause of the accident (see Herbert v Morgan Drive-A-Way, 202 AD2d 886, 888-889 [1994, Yesawich Jr., J., dissenting], revd on dissenting mem 84 NY2d 835 [1994]; Esposito v Wright, 28 AD3d 1142, 1144 [4th Dept 2006]).

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

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


text:
    [896 NE2d 661, 867 NYS2d 26]
    Filip Di Sanza, Appellant, v City of New York et al., Defendants, and Consolidated Edison Company of New York, Respondent.
    Decided September 11, 2008
    APPEARANCES OF COUNSEL

      Susan R. Nudelman, Dix Hills, for appellant.

      Richard W. Babinecz, New York City, and Helman R. Brook for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed with costs. We agree with the majority at the Appellate Division that, under the particular circumstances of this case, defendant Consolidated Edison Company of New York’s evidentiary submissions were sufficient to establish its prima facie entitlement to judgment as a matter of law on the ground that it neither created nor had actual or constructive notice of the one-inch bulge in the sidewalk grating. We further conclude that plaintiffs introduction of the postaccident photographs, which were not probative of the duration of the bulge, and the conclusory affidavit from his expert were insufficient to raise a triable issue of fact (see Batton v Elghanayan, 43 NY2d 898, 900 [1978] [photographs are not always sufficient to prove constructive notice]; see also Diaz v New York Downtown Hosp., 99 NY2d 542, 544-545 [2002]; Romano v Stanley, 90 NY2d 444, 451-452 [1997] [conclusory expert affidavit, devoid of evidentiary foundation, insufficient to defeat summary judgment]).

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

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


text:
    In the Matter of Robert B. Bernstein, Appellant, v Paul J. Feiner, as Town Supervisor of the Town of Greenburgh, et al., Respondents. Jay Leon et al., Intervenors.
    Submitted August 18, 2008;
    decided September 11, 2008
   Motion to intervene herein granted.


text:
    Alexander Breytman, Appellant, v Olinville Realty, LLC, et al., Respondents. Alexander Breytman, Appellant, v City of New York et al., Respondents.
    Submitted June 2, 2008;
    decided September 11, 2008
   Motion, insofar as it seeks leave to appeal from Supreme Court’s order denying reargument, dismissed upon the ground that it does not lie (see CPLR 5602); motion, insofar as it seeks leave to appeal from the Appellate Division order as against defendants Olinville Realty, LLC, Weiner Realty LLC, Pinnacle Bronx LLC and Anthony Mota, dismissed upon the ground that as to said parties, the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal from the Appellate Division order otherwise denied. Motion to enlarge the record etc. denied.


text:
    Briggs Avenue LLC, Appellant, v Insurance Corporation of Hannover, Respondent.
    Submitted September 8, 2008;
    decided September 11, 2008
   Motion by Complex Insurance Claims Litigation Association for leave to file a brief amicus curiae on consideration of the certified question herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Eurycleia Partners, LP, et al., Appellants, v Seward & Kissel, LLP, Respondent, et al., Defendants.
    Submitted June 16, 2008;
    decided September 11, 2008
   Motion by Marc I. Steinberg and Daniel J. Morrissey for leave to file a brief amici curiae on the motion for leave to appeal herein denied.


text:
    In the Matter of Mujahid Farid, Appellant, v Robert Dennison, as Chair of the Board of Parole, et al., Respondents.
    Submitted August 25, 2008;
    decided September 11, 2008
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Haiyan Lu, M.D., Appellant, v Henry M. Spinelli, M.D., et al., Respondents.
    Submitted August 18, 2008;
    decided September 11, 2008
   Motion for reargument of motion for leave to appeal denied with $100 costs and necessary reproduction disbursements [see 10 NY3d 716 (2008)].


text:
    In the Matter of Phillip Jean-Laurent, Appellant, v Joseph David, as Superintendent of Greene Correctional Facility, Respondent.
    Submitted September 2, 2008;
    decided September 11, 2008
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of the Claim of Larry Jolley, Appellant, v Ind-Venture Communications, Inc., et al., Respondents. Workers’ Compensation Board, Respondent.
    Submitted August 25, 2008;
    decided September 11, 2008
   Appeal, insofar as taken from the Appellate Division order denying appellant’s motion for reconsideration or leave to appeal to the Court of Appeals, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution; appeal, insofar as taken from the Appellate Division order of affirmance, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (see CPLR 5601).


text:
    Christine Kopsachilis, Respondent, v 130 East 18 Owners Corp. et al., Appellants.
    Submitted September 8, 2008;
    decided September 11, 2008
   Motion by Riverbay Corporation for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    In the Matter of Lemar H. Forestdale, Inc., et al., Respondents; Ervin H., Jr., Appellant. (Proceeding No. 1.) In the Matter of Kenmar H. Forestdale, Inc., et al., Respondents; Ervin H., Jr., Appellant. (Proceeding No. 2.)
    Submitted July 7, 2008;
    decided September 11, 2008
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that dismissed appeals from parts of Family Court orders entered on consent, dismissed upon the ground that as to that part of the Appellate Division order, appellant is not a party aggrieved; motion for leave to appeal otherwise denied.


text:
    Thomas J. Mazerbo, Respondent, v Mark Murphy, Appellant.
    Submitted August 25, 2008;
    decided September 11, 2008
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Joseph W. McGarr, as Executor of Kathleen M. Mooney, Deceased, Appellant, v The Guardian Life Insurance Company of America et al., Defendants, and James Downing, Respondent.
    Submitted July 14, 2008;
    decided September 11, 2008
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    Gary Melius et al., Appellants, v Wilbur F. Breslin et al., Respondents, et al., Defendants.
    Submitted August 11, 2008;
    decided September 11, 2008
   Motion for reargument of motion for leave to appeal denied with $100 costs and necessary reproduction disbursements [see 10 NY3d 715 (2008)].


text:
    Town of Nassau, Respondent, v Stephen O. Nalley, Doing Business as Impact Auto, Appellant.
    Submitted July 21, 2008;
    decided September 11, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    New Hampshire Insurance Company, as Subrogee of Links Club, Inc., Appellant, v Maria Serena Bartha et al., Respondents, et al., Defendants.
    Submitted July 16, 2008;
    decided September 11, 2008
   Motion, insofar as it seeks leave to appeal as against Maria Serena Bartha, as to whom the action remains pending in her representative capacity as administratrix of the estate of Nicholas Bartha, dismissed upon the ground that as to her the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that denied appellant’s motion to amend the complaint, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    The People of the State of New York, Respondent, v Sudeep Bhattacharjee, Appellant.
    Submitted September 8, 2008;
    decided September 11, 2008
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Jose Vargas, Appellant.
    Submitted September 8, 2008;
    decided September 11, 2008
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York ex rel. Woodrow Flemming, Appellant, v R. Woods, as Superintendent of Upstate Correctional Facility, Respondent.
    Submitted July 7, 2008;
    decided September 11, 2008
   Motion for reargument denied [see 10 NY3d 799 (2008)].


text:
    The People of the State of New York ex rel. Michael-Tony Velez, Appellant, v Dale Artus, as Superintendent of Clinton Correctional Facility, Respondent.
    Submitted August 4, 2008;
    decided September 11, 2008
   Motion for reargument of motion for leave to appeal denied [see 10 NY3d 716 (2008)].


text:
    In the Matter of Enrique Rivera, Respondent, v Neil Jon Firetog, as Justice of the Supreme Court of the State of New York, Respondent, and Charles J. Hynes, as District Attorney, Appellant.
    Submitted September 8, 2008;
    decided September 11, 2008
   Motion by New York State Association of Criminal Defense Lawyers for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Christopher Selletti, Respondent, v Thomas F. Liotti, Appellant.
    Submitted July 7, 2008;
    decided September 11, 2008
   Motion for leave to appeal dismissed upon the ground that appellant has failed to demonstrate timeliness as required by Rules of the Court of Appeals (22 NYCRR) § 500.22 (b) (2).


text:
    Syndicated Communication Venture Partners IV, LP, Appellant, v BayStar Capital, L.P., Now Known as Northbay Opportunities, L.P., et al., Respondents, et al., Defendants. (And a Third-Party Action.)
    Submitted September 2, 2008;
    decided September 11, 2008
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of 10 East Realty, LLC, et al., Respondents, v Incorporated Village of Valley Stream et al., Appellants.
    Submitted September 8, 2008;
    decided September 11, 2008
   Motion by City of New York for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    In the Matter of Sambasiva Rao Venigalla et al., Respondents, v Dattatreyudu Nori et al., Appellants. Attorney General of State of New York, Intervenor.
    Submitted July 28, 2008;
    decided September 11, 2008
   Motion for reargument denied [see 11 NY3d 55 (2008)].


text:
    [896 NE2d 86, 866 NYS2d 601]
    The People of the State of New York, Appellant, v Menashe Shemesh, Respondent.
    Decided September 16, 2008

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney, New York City (Frank Glaser and Mark Dwyer of counsel), for appellant.

      Arnold J. Levine, New York City, for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed. There is record support for the finding below that the District Attorney failed to accord the defendant reasonable time to exercise his right to appear as a witness before the grand jury.

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


text:
    [896 NE2d 86, 866 NYS2d 601]
    In the Matter of Gary DeFilippo, Appellant, v Stephen J. Rooney et al., Respondents.
    Decided September 16, 2008

      APPEARANCES OF COUNSEL

      Hankin Handwerker & Mazel LLP, New York City (Michael Handwerker of counsel), for appellant.

      Charles J. Hynes, District Attorney, Brooklyn (Ann Bordley of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be affirmed, without costs, and the certified question not answered on the ground that it is unnecessary.

The Appellate Division correctly concluded that petitioner failed to meet his burden of demonstrating that the alleged prosecutorial misconduct was conducted in a deliberate attempt to provoke him to move for a mistrial (see Matter of Gorghan v DeAngelis, 7 NY3d 470 [2006]). The Appellate Division also properly concluded that petitioner failed to demonstrate a clear legal right to the remedy of prohibition (see Matter of Rush v Mordue, 68 NY2d 348, 352 [1986]; Matter of State of New York v King, 36 NY2d 59, 62 [1975]).

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

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


text:
    [896 NE2d 87, 866 NYS2d 602]
    In the Matter of Leopold Siao-Pao, Appellant, v Robert Dennison, as Acting Chairman of the New York State Division of Parole, Respondent.
    Decided September 16, 2008
    APPEARANCES OF COUNSEL

      Feinman & Grossbard, P.C., White Plains (Steven N. Feinman of counsel), for appellant, and Leopold Siao-Pao, appellant pro se.

      Andrew M. Cuomo, Attorney General, New York City (Robert C. Weisz of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

The courts below applied the correct legal standards and properly considered the Board of Parole’s written determination, which, when evaluated in the context of the parole hearing transcript, demonstrated that the Board considered the required statutory factors (see Executive Law § 259-i; Matter of Silmon v Travis, 95 NY2d 470, 476 [2000]). The Board’s written determination, while less detailed than it might be, is not merely “conclusory” and so does not violate Executive Law § 259-i (2) (a) (i).

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

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, without costs, in a memorandum.


text:
    [897 NE2d 1044, 868 NYS2d 563]
    William McCleery et al., Appellants, v Consolidated Edison of New York, Inc., et al., Respondents.
    Decided September 16, 2008

      APPEARANCES OF COUNSEL

      Thomas Torto, New York City, for appellants.

      Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York City (Richard Lerner and Melissa Murphy-Petros 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. We agree with the dissenting justices at the Appellate Division that the injured plaintiff presented issues of fact as to how his foot was crushed and whether his injuries were a result of the Consolidated Edison driver’s negligence, which preclude the grant of summary judgment to defendants.

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


text:
    In the Matter of Board of Education of the East Meadow Union Free School District, East Meadow, New York, et al., Appellants, v East Meadow Teachers Association et al., Respondents.
    Submitted July 14, 2008;
    decided September 16, 2008
   Motion, insofar as it seeks leave to appeal against East Meadow Teachers Association, dismissed upon the ground that as to that party the order sought to be appealed from does not finally determine an action or proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Brittny MM., a Person in Need of Supervision. Michele Clark, as Probation Officer of the Columbia County Probation Department, Respondent; Brittny MM., Appellant.
    Submitted September 8, 2008;
    decided September 16, 2008
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Alan Chernow, Respondent, v Heman Chernow, Appellant.
    Submitted June 30, 2008;
    decided September 16, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Jesus Fuentes, as a Parent of a Disabled Child, Appellant, v Board of Education of the City of New York et al., Respondents.
    Decided September 16, 2008
   Certification of question by the United States Court of Appeals for the Second Circuit, pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), accepted and the issues presented are to be considered after briefing and argument.

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


text:
    Regina Glazer, Appellant, v Choong-Hee Lee et al., Respondents.
    Submitted July 21, 2008;
    decided September 16, 2008
   Motion, insofar as it seeks leave to appeal against Michael A. Werner, M.D. and M.A.Z.E. Laboratories, dismissed upon the ground that as to those parties the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    HSBC Bank USA, N.A., Respondent, v Barbara Scharf, Appellant, et al., Defendants.
    Submitted July 21, 2008;
    decided September 16, 2008
   Motion for reargument of motion for leave to appeal denied [see 10 NY3d 892 (2008)].


text:
    Infinity Consulting Group, Inc., Appellant, v Town of Huntington, Respondent.
    Submitted September 8, 2008;
    decided September 16, 2008
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that appellant has failed to demonstrate timeliness (see Rules of Ct of Appeals [22 NYCRR] §§ 500.9, 500.10).


text:
    In the Matter of Kimberly Kaminester, Respondent, v Inalee Foldes, Appellant.
    Submitted July 7, 2008;
    decided September 16, 2008
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that remanded for a hearing on contempt, 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:
    Lisa E.G. et al., as Parents and Natural Guardians of the Person and Property of Jennifer G., an Infant, Appellants, v The Genesee Hospital et al., Respondents.
    Submitted July 21, 2008;
    decided September 16, 2008
   Motion, insofar as it seeks leave to appeal against defendants Karin R. Dickinson, M.D., and Genesee Valley Obstetrics & Gynecology, P.C., dismissed upon the ground that as to those parties the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Lombard & Co., Inc., Respondent, v German De La Roche, Appellant.
    Submitted June 2, 2008;
    decided September 16, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Mainline Electric Corp., Respondent, v East Quogue Union Free School District, Appellant.
    Submitted July 21, 2008;
    decided September 16, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Annette Meiselman, Appellant, v Lonnie Fogel et al., Respondents.
    Submitted September 8, 2008;
    decided September 16, 2008
   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:
    Elhadi Elsheik Mohamed et al., Appellants, v Larry Defrin et al., Respondents, and Christoforos Blanis, Appellant, et al., Defendants.
    Submitted July 14, 2008;
    decided September 16, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    John Moody, Respondent, v Svetlana Sorokina, Appellant. Richard Alderman, Respondent.
    Submitted September 8, 2008;
    decided September 16, 2008
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Marek Szpakowski et al., Respondents, v Shelby Realty, LLC, Respondent, and Forthright Development Company, LLC, Appellant, et al., Defendant. (And a Third-Party Action.)
    Submitted July 21, 2008;
    decided September 16, 2008
   Motion, insofar as it seeks leave to appeal against Shelby Realty, 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:
    Myra Warman, Appellant, v Haim Shimon Warman, Respondent.
    Submitted July 14, 2008;
    decided September 16, 2008
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    Wells Fargo Bank, Respondent, v Barbara Scharf, Appellant, et al., Defendants.
    Submitted July 21, 2008;
    decided September 16, 2008
   Motion for reargument of motion for leave to appeal denied [see 10 NY3d 886 (2008)].


text:
    [897 NE2d 1050, 868 NYS2d 569]
    The People of the State of New York, Respondent, v Jamie Smith, Appellant.
    Argued September 4, 2008;
    decided October 16, 2008
    APPEARANCES OF COUNSEL

      Legal Aid Society of Suffolk, Inc., Appeals Bureau, Riverhead (Robert C. Mitchell and James H. Miller, III, of counsel), for appellant.

      Thomas J. Spota, District Attorney, Riverhead (Michael J. Miller of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the case remitted to County Court for further proceedings in accordance with this memorandum.

Defendant pleaded guilty to one count of rape in the third degree (Penal Law § 130.25 [2]) after admitting that he was 31 years old when he engaged in sexual intercourse with the 16-year-old victim. At a subsequent hearing held pursuant to the Sex Offender Registration Act (see Correction Law art 6-C), defendant conceded that the risk assessment instrument properly imposed 70 points, the maximum point total for presumptive risk level one sex offender status. His classification turned on whether he should receive additional points under risk factor 7 on the basis that his crime “was directed at a stranger or a person with whom a relationship had been established or promoted for the primary purpose of victimization” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 12 [2006]). County Court assessed 20 points under this risk factor, thereby designating defendant a level two sex offender, and the Appellate Division affirmed.

Correction Law § 168-n (3) requires the sentencing court to “render an order setting forth its determinations and the findings of fact and conclusions of law on which the determinations are based.” In reaching its decision, which must be based on clear and convincing evidence, the judge “shall review any victim’s statement and any relevant materials and evidence submitted by the sex offender and the district attorney and the recommendation and any materials submitted by the board, and may consider reliable hearsay evidence submitted by either party, provided that it is relevant to the determinations” (Correction Law § 168-n [3]).

Here, County Court did not adequately set forth the findings of fact and conclusions of law on which it based its decision to assess defendant 20 points under the risk factor pertaining to defendant’s relationship with the victim—the evidence upon which the court found that the victim was a stranger or determined that defendant had “established or promoted” the relationship for the primary purpose of victimization. We therefore remit this case to County Court to specify its findings of fact and conclusions of law (see People v Kraeger, 27 AD3d 1160 [4th Dept 2006]; People v Marr, 20 AD3d 692 [3d Dept 2005]; see also Matter of Jose L.I., 46 NY2d 1024 [1979]).

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

Order reversed, etc.


text:
    [897 NE2d 1049, 868 NYS2d 568]
    In the Matter of City of Elmira et al., Respondents, v John Doe, Appellant.
    Argued September 3, 2008;
    decided October 16, 2008
    APPEARANCES OF COUNSEL

      Schlather, Geldenhuys, Stumbar & Salk, Ithaca (Diane V. Bruns of counsel), for appellant.

      J. William O’Brien II, Corporation Counsel, Elmira (John J. Ryan, Jr., of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be affirmed, without costs.

In this special civil proceeding brought pursuant to CPL 160.50 to vacate a sealing order, the primary issue before this Court is whether some of the sealed materials constitute “official records” within the meaning of CPL 160.50 (1) (c). We agree with the Appellate Division that certain sealed records in this case (i.e., property tags, bags and logs showing the chain of custody of money surrendered by persons arrested by respondent, and other records generated in the investigations of those arrests) are not official records subject to a CPL 160.50 seal. Respondent’s remaining argument that the Appellate Division erred in granting “resettlement and reargument” is without merit.

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

Order, insofar as appealed from, affirmed, without costs, in a memorandum.

       All parties now acknowledge that CPL 160.50 (1) (d) is not applicable; accordingly, we may not pass on those aspects of the rulings below. Throughout this proceeding, neither party addressed whether CPL 160.50 (1) (c) is a proper basis upon which to obtain sealed documents in this procedural context. They simply contest whether the subject materials constitute “official records.” Thus, as this threshold issue was not preserved for appellate review, we must here accept without comment the general applicability of CPL 160.50 (1) (c) as a basis for vacatur.


text:
    City of New York, Appellant, v Smokes-Spirits.Com, Inc., et al., Respondents, et al., Defendants. (And Other Actions.)
    Decided October 16, 2008
   Certification of questions by the United States Court of Appeals for the Second Circuit, pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), accepted and the issues presented are to be considered after briefing and argument.

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


text:
    Jeanne DeLaurentis, Appellant, v Vito F. DeLaurentis, Jr., Respondent.
    Submitted July 28, 2008;
    decided October 16, 2008
   Motion for the imposition of sanctions denied.


text:
    In the Matter of Fiveco, Inc., Doing Business as Mer’s, Inc., Appellant, v Bruce Haber, Respondent.
    Submitted August 11, 2008;
    decided October 16, 2008
   Motion for reargument denied with $100 costs and necessary reproduction disbursements [see 11 NY3d 140 (2008)].


text:
    Jericho Group, Ltd., Appellant, v Midtown Development, L.P., Respondent.
    Submitted July 14, 2008;
    decided October 16, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Lee N. Koehler, Appellant, v The Bank of Bermuda Limited, Respondent.
    Decided October 16, 2008
   Certification of question by the United States Court of Appeals for the Second Circuit, pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), accepted and the issues presented are to be considered after briefing and argument.

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


text:
    In the Matter of the Claim of Yvonne Pearson, Appellant, v Bestcare et al., Respondents. Workers’ Compensation Board, Respondent.
    Submitted July 28, 2008;
    decided October 16, 2008
   Motion for reargument of motion for leave to appeal denied [see 10 NY3d 715 (2008)].


text:
    The People of the State of New York, Respondent, v Dzemil Balic, Appellant.
    Submitted July 28, 2008;
    decided October 16, 2008
   Motion for leave to appeal granted. Motion for poor person relief granted.


text:
    The People of the State of New York, Appellant, v Amber Bauman and Charles Edward Lafler, Respondents.
    Submitted September 22, 2008;
    decided October 16, 2008
   Motion for assignment of counsel granted and Timothy E Donaher, Esq., Monroe County Public Defender, 10 N. Fitzhugh Street, Rochester, New York 14614 assigned as counsel to respondent Amber Bauman on the appeal herein.


text:
    The People of the State of New York, Respondent, v Dionis Collado, Appellant.
    Submitted September 29, 2008;
    decided October 16, 2008
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Dale F. Leeson, Appellant.
    Submitted September 29, 2008;
    decided October 16, 2008
   Motion for assignment of counsel granted and John E. Tyo, Esq., care of Zimmerman & Tyo, 6 East Main Street, PO. Box 7, Shortsville, New York 14548 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Jonathan Mattocks, Appellant.
    Submitted September 22, 2008;
    decided October 16, 2008
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Tyrone Mingo, Appellant.
    Submitted September 22, 2008;
    decided October 16, 2008
   Motion by James Ching for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    The People of the State of New York, Respondent, v Kristerfer Passino, Appellant.
    Submitted October 14, 2008;
    decided October 16, 2008
   Motion for assignment of counsel granted and M. Elizabeth Coreno, Esq., care of Jones Ferradino, 68 West Avenue, PO. Box 4400, Saratoga Springs, New York 12866 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Thomas Perez, Appellant.
    Submitted October 6, 2008;
    decided October 16, 2008
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Robert Tocci, Appellant.
    Submitted September 15, 3008;
    decided October 16, 2008
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Billy Witherspoon, Appellant.
    Submitted October 6, 2008;
    decided October 16, 2008
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The RGH Liquidating Trust, on Behalf of Reliance Group Holdings, Inc., and Another, Appellant, v Deloitte & Touche LLP et al., Respondents.
    Submitted August 4, 2008;
    decided October 16, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Mark Rufeh, Respondent, v Seth M. Schwartz et al., Appellants.
    Submitted July 28, 2008;
    decided October 16, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.

Chief Judge Kaye taking no part.


text:
    David Simons, Appellant, v Lycee Francais de New York et al., Respondents.
    Submitted July 28, 2008;
    decided October 16, 2008
   Motion for reargument of motion for leave to appeal denied with $100 costs and necessary reproduction disbursements [see 10 NY3d 714 (2008)].


text:
    [897 NE2d 1054, 868 NYS2d 573]
    Sorbara Construction Corporation, Appellant, v AIU Insurance Company, Respondent, et al., Defendants.
    Argued September 3, 2008;
    decided October 21, 2008

      APPEARANCES OF COUNSEL

      Herzfeld & Rubin, P.C., New York City (David B. Hamm and Miriam Skolnik of counsel), for appellant.

      Hodgson Russ LLP, Buffalo (Kevin D. Szczepanski and Patrick M. Tomovic of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

It is well settled that when a policy of liability insurance requires that notice of an occurrence be given “as soon as practicable,” such notice must be provided within a reasonable period of time; failure to give such notice relieves the insurer of its obligations under the contract, regardless of whether the insurer was prejudiced by the delay (Great Canal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d 742, 743 [2005]; Argo Corp. v Greater N.Y. Mut. Ins. Co., 4 NY3d 332, 339 [2005]).

Contrary to the insured’s contention in this case, notice provided under the workers’ compensation policy at the time of the incident did not constitute notice under the liability policy even though both policies were written by the same carrier (see generally Nationwide Ins. Co. v Empire Ins. Group, 294 AD2d 546, 548 [2d Dept 2002]; 57th St. Mgt. Corp. v Zurich Ins. Co., 208 AD2d 801, 802 [2d Dept 1994]). Each policy imposes upon the insured a separate, contractual duty to provide notice. Similarly, an additional insured’s notice to the carrier under a different policy does not excuse the insured’s obligation to provide timely notice under its policy (see Travelers Ins. Co. v Volmar Constr. Co., 300 AD2d 40 [1st Dept 2002]).

Here, the insured did not give notice to the insurer until it was sued in a third-party action—some SVa years after the accident. Under the circumstances of this case, such notice was unreasonable as a matter of law and relieved the insurer of its obligation to defend or indemnify the insured.

The insured’s remaining contention is without merit.

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

Order affirmed, with costs, in a memorandum.


text:
    Maria Teresa Bacani et al., Appellants, v Lisa Rosenberg, M.D., et al., Respondents.
    Submitted August 11, 2008;
    decided October 21, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Victor Batshever, Appellant, v Avery E. Okin, Respondent.
    Submitted July 21, 2008;
    decided October 21, 2008
   Motion for leave to appeal dismissed upon the ground that it does not lie (see NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]). Motion for poor person relief dismissed as academic.


text:
    Stephen F. Brummer, Plaintiff, v Town of Tonawanda et al., Defendants. Christopher A. Spence, P.C., Appellant; The Barnes Firm, P.C., Successor to Cellino & Barnes, Respondent.
    Submitted July 28, 2008;
    decided October 21, 2008
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]; Eaton v State of New York, 76 NY2d 824 [1990]).


text:
    In the Matter of Carolyn Z. and Another, Children Alleged to be Neglected. St. Lawrence County Department of Social Services, Respondent; Tage Z., Appellant.
    Submitted August 18, 2008;
    decided October 21, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Robert DelBene et al., Respondents, v Nate Estes et al., Appellants.
    Submitted August 18, 2008;
    decided October 21, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Judith L. Hancock, Respondent, v Arts4All, Ltd., Also Known as A4A Mobile, Ltd., Appellant.
    Submitted August 4, 2008;
    decided October 21, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Angelo Iannone, Appellant, v ING Financial Services, LLC, et al., Respondents.
    Submitted August 25, 2008;
    decided October 21, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. The doctrine of implied severance is not applicable (see Burke v Crosson, 85 NY2d 10, 16-17 [1995]).

Chief Judge Kaye taking no part.


text:
    In the Matter of Jazmone S., a Child Alleged to be Neglected. Administration for Children’s Services, Respondent; Philip J., Appellant. (Proceeding No. 1.) In the Matter of Ashley J., a Child Alleged to be Neglected. Administration for Children’s Services, Respondent; Philip J., Appellant. (Proceeding No. 2.) In the Matter of Zalika J., a Child Alleged to be Neglected. Administration for Children’s Services, Respondent; Philip J., Appellant. (Proceeding No. 3.) In the Matter of Ethan J., a Child Alleged to be Neglected. Administration for Children’s Services, Respondent; Philip J., Appellant. (Proceeding No. 4.)
    Submitted July 21, 2008;
    decided October 21, 2008
   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. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Jenny A., Appellant, v Cayuga County Department of Health and Human Services, Respondent.
    Submitted July 28, 2008;
    decided October 21, 2008
   Motion for leave to appeal dismissed upon the ground that appellant has failed to demonstrate timeliness as required by Rules of the Court of Appeals (22 NYCRR) § 500.22 (b) (2).


text:
    In the Matter of Edward Koehl, Appellant, v Brian Fischer, as Commissioner of Correctional Services, Respondent.
    Submitted August 11, 2008;
    decided October 21, 2008
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    In the Matter of Walter Self, Appellant, v New York State Division of Human Rights et al., Respondents.
    Submitted July 21, 2008;
    decided October 21, 2008
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no appeal lies to the Court of Appeals from the order of an individual Justice of the Appellate Division (see NY Const, art VI, § 3 [b]; CPLR 5601). Motion for leave to appeal dismissed upon the ground that it does not lie from the order of an individual Justice of the Appellate Division (see NY Const, art VI, § 3 [b]; CPLR 5602).


text:
    Dante Smith et al., Appellants, v 2328 University Avenue Corp. et al., Defendants, and NL Industries, Inc., Respondent.
    Submitted August 4, 2008;
    decided October 21, 2008
   Motion by the New York City Coalition to End Lead Poisoning et al. for leave to file affirmations amici curiae on the motion for leave to appeal herein granted and the affirmations are accepted as filed.

Judge Smith taking no part.


text:
    [898 NE2d 561, 869 NYS2d 378]
    Craig Crawford, Respondent, v Liz Claiborne, Inc., et al., Appellants.
    Argued September 10, 2008;
    decided October 23, 2008

      APPEARANCES OF COUNSEL

      Orrick Herrington & Sutcliffe, LLP, New York City (Michael Delikat and John D. Giansello of counsel), for appellants.

      Thompson Wigdor & Gilly, LLP, New York City (Douglas H. Wigdor and Renan F. Varghese of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, the case remitted to the Appellate Division for further proceedings in accordance with this decision and the certified question answered in the negative.

On September 24, 2004, plaintiff Craig Crawford brought a Human Rights Law action in Supreme Court, New York County, against his employer, Liz Claiborne, Inc., and other parties alleging discrimination based on sexual orientation. On April 11, 2005, the IAS Judge issued a preliminary conference order (PCO) directing that dispositive motions be made “per local rule.”

At the time of the issuance of the PCO, rule 17 of the Rules of the Justices of the Supreme Court, Civil Branch, New York County (Local Rules) provided that “[u]nless specified otherwise in a particular case, pursuant to CPLR 3212 (a) all motions for summary judgment must be made no later than 60 days after the filing of the note of issue.” The IAS Judge had individual part rules in addition to the Local Rules, but at the time the PCO was issued had no individual part rule regarding summary judgment motions.

On April 17, 2006, before the note of issue was filed, the Local Rules were amended, including an amended rule 17 providing that

“[ujnless otherwise provided in a particular case in the preliminary conference order or other directive of the Justice assigned, a motion for summary judgment shall be made no later than 120 days after the filing of the note of issue, except with leave of court for good cause shown.”

Around the same time, the IAS Judge modified her individual part rules adding the language “[ajbsent court order, post note of issue dispositive motions shall be made within 60 days thereof.”

Thus, when the instant note of issue was filed on May 15, 2006, the Local Rules differed from the IAS Judge’s individual part rules regarding the deadline for filing a summary judgment motion. Under the IAS Judge’s individual part rules, a motion for summary judgment would be due on July 17, 2006, whereas the parties would have 60 additional days under the amended Local Rules.

Defendants’ motion for summary judgment was made on July 19, 2006. On July 20, 2006, plaintiff moved by order to show cause to strike defendants’ motion as untimely. The IAS Judge denied the application and instructed plaintiff to raise the issue of timeliness in his response to the summary judgment motion. Thereafter, plaintiff opposed the motion solely on the ground of untimeliness without addressing the merits. At oral argument on September 18, 2006, the IAS Judge determined that the motion was untimely but found that defendants showed “good cause” for the delay in filing the motion. In that the motion was otherwise unopposed on the merits, the IAS Judge granted summary judgment for defendants.

Relying on Brill v City of New York (2 NY3d 648 [2004]), the Appellate Division, in a 3-2 decision, reversed, reinstated the complaint, and remanded the case to the Supreme Court (45 AD3d 284, 287 [1st Dept 2007]). Defendants appeal to this Court by leave of the Appellate Division on a certified question.

We hold that defendants’ motion for summary judgment, made 62 days after the filing of the note of issue, was timely and that Brill is inapplicable to this case. At the time the PCO was entered, the IAS Judge had no individual part rule; thus, “per local rule” could only have referred to the Local Rules of Supreme Court, New York County. In that the 120-day amended Local Rule was in effect at the time the note of issue was filed, defendants’ motion was actually timely.

Given this conclusion, we need not address the secondary issue of whether the Appellate Division properly reassigned the case to a different Justice on remand. However, as the Appellate Division has not had an opportunity to pass on the propriety of Supreme Court’s grant of summary judgment on the merits, we remit this case to the Appellate Division for that purpose.

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

Order reversed, etc.


text:
    [897 NE2d 1071, 868 NYS2d 588]
    In the Matter of Stephen R. Hunter, Respondent, v Orange County Board of Elections, Respondent, and Robert A. Onofry, Appellant.
    Argued October 22, 2008;
    decided October 23, 2008

      APPEARANCES OF COUNSEL

      Vincent J. Messina, Jr., Central Islip, for appellant.

      Jonathan G. Jacobson, New Windsor, for Stephen R. Hunter, respondent.

      David L. Darwin, County Attorney, Goshen (Sharon Worthy-Spiegl of counsel), for Orange County Board of Elections, respondent.

      John Ciampoli, Albany, for Orange County Interim County Organization of the New York State Independence Party and another, amici curiae.
   OPINION OF THE COURT

Order reversed, without costs, and matter remitted to Supreme Court, Orange County, with directions to dismiss the proceeding. Under the circumstances of this case, it would be impossible, if this Court were to entertain the merits, to render meaningful relief in compliance with the Election Law.

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


text:
    In the Matter of the Claim of Viorel Cincu, Appellant. Sutton House, Inc., Respondent; Commissioner of Labor, Respondent.
    Submitted September 2, 2008;
    decided October 23, 2008
   Motion for reargument of motion for leave to appeal denied [see 10 NY3d 714 (2008)].


text:
    In the Matter of David Clinton, an Attorney, Appellant. Grievance Committee for the Second and Eleventh Judicial Districts, Respondent.
    Submitted September 29, 2008;
    decided October 23, 2008
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    John R. Consedine, Respondent, v Portville Central School District et al., Appellants.
    Submitted October 20, 2008;
    decided October 23, 2008
   Motion by New York State School Boards Association for leave to file a brief amicus curiae on the appeal herein granted. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Ajet Delaj et al., Appellants, v Kenneth R. Jameson, Defendant. Mark E. Seitelman Law Offices, P.C., Nonparty Respondent.
    Submitted September 2, 2008;
    decided October 23, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine an action or proceeding within the meaning of the Constitution.


text:
    In the Matter of Nicole Gale, Respondent, v John Lotito III, Appellant.
    Submitted May 27, 2008;
    decided October 23, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Mike Henriquez, Appellant, v Keith Dubray, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
    Submitted July 28, 2008;
    decided October 23, 2008
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Stephen R. Hunter, Respondent, v Orange County Board of Elections, Respondent, and Robert A. Onofry, Appellant.
    Submitted October 22, 2008;
    decided October 23, 2008
   Motion, insofar as the Orange County Interim County Organization of the New York State Independence Party et al., seek leave to intervene, denied; motion, insofar as said movants seek leave to appear amici curiae on the appeal herein, granted.


text:
    Kathryn Jordan, Appellant, v Bates Advertising Holdings, Inc., Formerly Known as AC & R Advertising, Inc., Respondent, et al., Defendant. Klein Zelman Rothermel LLP, Nonparty Intervenor-Respondent.
    Submitted September 22, 2008;
    decided October 23, 2008
   Motion for reargument of motion for leave to appeal denied [see 11 NY3d 701 (2008)].


text:
    In the Matter of Walter Kearney, Appellant, v New York State Board of Parole, Respondent.
    Submitted July 28, 2008;
    decided October 23, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine an action or proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Shawn Moynihan, Appellant, v State of New York, Respondent.
    Submitted August 4, 2008;
    decided October 23, 2008
   On the Court’s own motion, appeal transferred, without costs, to the Appellate Division, Third Department, upon the ground that the direct appeal does not lie (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]). Motion for poor person relief dismissed as academic.


text:
    New York State Crime Victims Board, Respondent, v Bruce Lorick, Appellant.
    Submitted September 22, 2008;
    decided October 23, 2008
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Omni Recycling of Westbury, Inc., Respondent, v Town of Oyster Bay et al., Appellants.
    Submitted October 20, 2008;
    decided October 23, 2008
   Motion by the Association of Towns of the State of New York for leave to file a brief amicus curiae on the appeal herein granted. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    The People of the State of New York, Respondent, v Julio Borrell, Also Known as Julio Cesar Borrell, Appellant.
    Submitted October 20, 2008;
    decided October 23, 2008
   Motion for assignment of counsel granted and Steven Banks, Esq., the Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v William Mitchell, Appellant.
    Submitted September 29, 2008;
    decided October 23, 2008
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no civil appeal lies from the order of the Appellate Division entered in this criminal proceeding Csee NY Const, art VI, § 3 [b]; CPLR 5601; CPL 450.90).


text:
    In the Matter of Ronald V. Pomerance, Appellant, v Roger Paul McTiernan, Jr., et al., Respondents.
    Submitted July 28, 2008;
    decided October 23, 2008
   Motion for leave to appeal dismissed upon the ground that the issues presented have become moot.


text:
    Norma Rose et al., Appellants, v Brown & Williamson Tobacco Corporation, as Successor in Interest to American Tobacco, et al., Respondents, et al., Defendant.
    Submitted October 20, 2008;
    decided October 23, 2008
   Motion by Product Liability Advisory Council, Inc. for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Norma Rose et al., Appellants, v Brown & Williamson Tobacco Corporation, as Successor in Interest to American Tobacco, et al., Respondents, et al., Defendant.
    Submitted October 20, 2008;
    decided October 23, 2008
   Motion by Professor James A. Henderson, Jr. for leave to file a brief amicus curiae on the appeal herein granted. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Norma Rose et al., Appellants, v Brown & Williamson Tobacco Corporation, as Successor in Interest to American Tobacco, et al., Respondents, et al., Defendant.
    Submitted October 20, 2008;
    decided October 23, 2008
   Motion by Chamber of Commerce of the United States of America for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    [898 NE2d 571, 869 NYS2d 388]
    Wendy Litwack, Appellant, v Plaza Realty Investors, Inc., et al., Respondents.
    Argued September 11, 2008;
    decided October 28, 2008
    APPEARANCES OF COUNSEL

      William D. Fireman, P.C., New York City (William D. Fireman and Adam Silvera of counsel), for appellant.

      Molod Spitz & DeSantis, P.C., New York City (Marcy Sonneborn and Salvatore J. DeSantis of counsel), for respondents.

      Arnold E. DiJoseph, P.C., New York City (Arnold E. DiJoseph, III, of counsel) for New York State Trial Lawyers’ Association, amicus curiae.
   OPINION OF THE COURT

Memorandum.

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

In April 1999, plaintiff complained to the apartment building doorman about a four-to-six inch “brown wet, dark brownish” spot in the middle of her dining room wall. Within a week, a building handyman removed about five inches of sheetrock, revealing a potential tiny crack in a steam pipe. When the steam was turned on in October, revealing the precise location of a hair-width, one-eighth-inch long crack, a plumber was able to replace that section of the pipe, and a building handyman repaired the wall. Plaintiff additionally complained that, during summer months, air conditioners in her apartment dripped; in response, building staff from time to time changed the filters. In either the fall or winter of 1999, plaintiff began to feel ill, and in July 2001 doctors advised her to have her apartment environmentally tested. Testing confirmed the presence of toxic mold, and plaintiff vacated the apartment that month. Thereafter, in October 2001, plaintiff notified the landlords of the claimed mold condition.

After plaintiff brought suit for, among other things, negligence, defendants landlords moved for summary judgment. Supreme Court granted summary judgment, concluding that plaintiff did not give defendants sufficient notice of the toxic mold condition and holding that “there was no proof of continuous complaints about the repeated entry of water, based on repair work undertaken by the owner, which could warrant an issue as to the foreseeability of a mold hazard.” The Appellate Division affirmed, with one Justice dissenting, on the ground that, as a matter of law, the evidence was insufficient to put defendants on notice of a hazardous mold condition, and certified the following question: “Was the order of the Supreme Court, as affirmed by the decision and order of this Court, properly made?” We conclude that it was.

A landlord may be liable for failing “to repair a dangerous condition, of which it has notice, on leased premises if the landlord assumes a duty to make repairs and reserves the right to enter in order to inspect or to make such repairs” (Chapman v Silber, 97 NY2d 9, 19 [2001]). Plaintiff bears the burden of proving that the landlord had notice of the dangerous condition and a reasonable opportunity to repair it (Juarez v Wavecrest Mgt. Team, 88 NY2d 628, 642 [1996]).

Here, even applying plaintiffs proposed notice standard— whether defendants created, or had notice of persistent water leaks that foreseeably could result in, a hazardous mold condition—plaintiff failed to raise any triable factual issues. In April 1999, the crack and spot with surrounding wetness were small; once the steam was turned on and the repair could be made in October, there was no further complaint. Additionally, plaintiff never complained that the air conditioners dampened her carpet, or that the areas smelled musty or moldy; indeed, she vacated the apartment three months before notifying defendants of the claimed mold condition. Thus, summary judgment dismissing the complaint was warranted.

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

Order affirmed, etc.


text:
    [898 NE2d 21, 869 NYS2d 8]
    The People of the State of New York, Respondent, v Lionel Jones, Appellant.
    Argued September 11, 2008;
    decided October 28, 2008

      APPEARANCES OF COUNSEL

      Legal Aid Bureau of Buffalo, Inc., Buffalo (Nicholas T. Texido and David C. Schopp of counsel), for appellant.

      Frank J. Clark, District Attorney, Buffalo (Michael J. Hillery and J. Michael Marion of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant Lionel Jones failed to meet his burden of establishing a prima facie case of discrimination pursuant to Batson v Kentucky (476 US 79 [1986]). While the party making a Batson challenge need not establish a pattern of discrimination to satisfy the step-one burden (see People v Smocum, 99 NY2d 418, 421-422 [2003]), “sketchy assertions” and declarations that the prospective juror “indicated no reason why [the juror] could not serve fairly” are, standing alone, generally insufficient to establish a prima facie case of discrimination (People v Childress, 81 NY2d 263, 267-268 [1993] [internal quotation marks omitted]). Defense counsel’s contentions that the prosecutor’s peremptory challenge of an African-American prospective juror must have been based on her race because the challenged juror’s answers were “neutral” and “would not give [the prosecutor] any reason to believe that she could [not] be impartial” are exactly the kind of vague and conclusory assertions this Court rejected in Childress.

Finally, the hearing court’s determination that the police possessed founded suspicion of criminality justifying a common-law inquiry, a mixed question of law and fact, is supported by the record (People v Battaglia, 86 NY2d 755, 756 [1995]). Accordingly, this Court’s review process is exhausted.

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

Order affirmed in a memorandum.


text:
    [897 NE2d 1059, 868 NYS2d 578]
    Edward Cohen et al., Respondents, v Memorial Sloan-Kettering Cancer Center et al., Appellants.
    Decided October 28, 2008

      APPEARANCES OF COUNSEL

      Mauro Goldberg & Lilling, Great Neck (Matthew W. Naparty of counsel), and Kopff, Nardelli & Dopf LLP, New York City (Martin B. Adams of counsel), for appellants.

      David P. Kownacki, New York City, for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, plaintiffs’ cross motion for summary judgment on their Labor Law § 240 (1) claim denied, defendants’ motion for summary judgment dismissing the Labor Law § 240 (1) claim granted, and the certified question answered in the negative.

No Labor Law § 240 (1) liability exists where an injury results from a separate hazard wholly unrelated to the risk which brought about the need for the safety device in the first place (see Nieves v Five Boro A.C. & Refrig. Corp., 93 NY2d 914 [1999]; Melber v 6333 Main St., 91 NY2d 759, 763-764 [1998]). Here, the presence of two unconnected pipes protruding from a wall was not “the risk which brought about the need for the [ladder] in the first instance” (Nieves, 93 NY2d at 916 [citations omitted]), but was one of “the usual and ordinary dangers at a construction site” (id.) to which the “extraordinary protections of Labor Law § 240 (1) [do not] extend” (id. at 915).

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

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


text:
    Tricia Baron, Plaintiff, v Richard J. Grant, Appellant, and First Union Auto Finance, Inc., Respondent.
    Submitted April 28, 2008;
    decided October 28, 2008
   Motion for leave to appeal dismissed upon the ground that movant has failed to show that the order sought to be appealed from is final as required by Rules of the Court of Appeals (22 NYCRR) § 500.22 (b) (3).


text:
    Sally Ann Blazynski et al., Appellants, v A. Gareleck & Sons, Inc., et al., Respondents, et al., Defendants.
    Submitted July 28, 2008;
    decided October 28, 2008
   Motion, insofar as it seeks leave to appeal from the Appellate Division order that affirmed Supreme Court’s order denying appellants’ motion for leave to renew, dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Stevi Brooks, Respondent, v Harley I. Lewin, Esq., et al., Defendants. Curtis & Associates, P.C., Nonparty Appellant.
    Submitted September 2, 2008;
    decided October 28, 2008
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Supreme Court’s order denying reargument, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Richard J. Condon, as Special Commissioner of Investigation for the New York City School District, Respondent, v The Inter-Religious Foundation for Community Organization, Inc., Appellant. In the Matter of Richard J. Condon, as Special Commissioner of Investigation for the New York City School District, Respondent, v Lucius Walker, Jr., Appellant.
    Submitted August 18, 2008;
    decided October 28, 2008
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for a stay dismissed as academic.


text:
    Albina Emanvilova et al., Appellants, v Joseph Pallotta et al., Respondents. In the Matter of American Transit Insurance Company, Respondent, v Albina Emanvilova et al., Appellants, and Igor Loktev, Respondent, and Allstate Insurance Co., Proposed Respondent. (And Another Proceeding.)
    Submitted September 2, 2008;
    decided October 28, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine an action or proceeding within the meaning of the Constitution.


text:
    Ernie Otto Corporation, Appellant, v Inland Southeast Thompson Monticello, LLC, Defendant, and Kim Hine, Doing Business as Kim’s Gifts and Kim’s Mountain Gift Corporation, Respondent.
    Submitted September 15, 2008;
    decided October 28, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    ExxonMobil Corporation, Appellant, v Certain Underwriters at Lloyd’s, London, et al., Respondents.
    Submitted September 2, 2008;
    decided October 28, 2008
   Motion by United Policyholders for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    Mark Hynes, Appellant, v Sonido, Inc., Respondent.
    Submitted August 25, 2008;
    decided October 28, 2008
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    In the Matter of Michael S. Kimm, an Attorney, Appellant. Grievance Committee for the Tenth Judicial District, Respondent.
    Submitted October 20, 2008;
    decided October 28, 2008
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    The People of the State of New York, Respondent, v Jorge Alcaraz, Appellant.
    Submitted August 25, 2008;
    decided October 28, 2008
   Motion for leave to appeal from the order of the Appellate Term dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain it (see CPLR 5602 [a]). Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York ex rel. Erwin Jackson, Appellant, v Nassau County Sheriff’s Department, Respondent.
    Submitted September 8, 2008;
    decided October 28, 2008
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    In the Matter of Robert Scott, Appellant, v Department of Correctional Services, Respondent.
    Submitted August 25, 2008;
    decided October 28, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Vincent Terio, Appellant, v Systems & Services Technologies, Inc., Respondent. In the Matter of Tax Liens. Vincent Terio, Appellant; County of Putnam, Respondent.
    Submitted September 29, 2008;
    decided October 28, 2008
   Motion for reargument denied [see 11 NY3d 753 (2008)].


text:
    3657 Realty Co., LLC, Respondent, v Ida Mae Jones, Appellant.
    Submitted September 22, 2008;
    decided October 28, 2008
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain this motion for leave to appeal from the order of the Appellate Division where the appeal to the Appellate Division was from an order entered on an appeal from another court (see NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]).


text:
    In the Matter of Douglas B. Bower, Respondent, v Board of Education, Cazenovia Central School District, et al., Appellants.
    Submitted September 8, 2008;
    decided November 20, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine an action or proceeding within the meaning of the Constitution.


text:
    Golden Gate Yacht Club, Appellant, v Société Nautique de Genève, Respondent, and Club Náutico Español de Vela, Intervenor-Defendant.
    Submitted October 17, 2008;
    decided November 20, 2008
   Motion by Reale Yacht Club Canottieri Savoia et al. for leave to file a brief amici curiae on the appeal herein granted. Three copies of the brief must be served and an original and 24 copies filed within seven days.


text:
    Kerusa Co. LLC, Respondent, v W10Z/515 Real Estate Limited Partnership et al., Appellants.
    Submitted November 3, 2008;
    decided November 20, 2008
   Motion by the Real Estate Board of New York, Inc. for leave to file a brief amicus curiae on the appeal herein granted. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    In the Matter of LCO Building LLC, Formerly Known as 189 Van Rensselaer, Appellant, v Bruna Michaux, as Assessor of City of Buffalo, et al., Respondents.
    Submitted September 8, 2008;
    decided November 20, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    LMK Psychological Services, P.C., et al., Respondents, v State Farm Mutual Automobile Insurance Company, Appellant.
    Submitted October 27, 2008;
    decided November 20, 2008
   Motion by Government Employees Insurance Company et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    Robert McCormick et al., Respondents, v Sarah Pickert, Appellant.
    Submitted September 8, 2008;
    decided November 20, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (see Karger, Powers of the New York Court of Appeals § 5:3, at 109 [3d ed rev]).


text:
    In the Matter of Faith Ann Peaslee and Others. George M. Reiber, Appellant, v GMAC, LLC, et al., Respondents.
    Decided November 20, 2008
   Certification of a question by the United States Court of Appeals for the Second Circuit, pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), accepted and the issues presented are to be considered after briefing and argument.

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


text:
    The People of the State of New York, Respondent, v Eric Bailey, Appellant.
    Submitted October 27, 2008;
    decided November 20, 2008
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Richard Brooks, Appellant.
    Submitted October 27, 2008;
    decided November 20, 2008
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Michael J. Brown, Appellant.
    Submitted October 27, 2008;
    decided November 20, 2008
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Wayne Davis, Appellant.
    Submitted November 17, 2008;
    decided November 20, 2008
   Motion for assignment of counsel granted and Steven Banks, Esq., the Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Noel Marte, Appellant.
    Submitted October 27, 2008;
    decided November 20, 2008
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Daniel Meleance, Appellant.
    Submitted November 17, 2008;
    decided November 20, 2008
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    Riverside Capital Advisors, Inc., Appellant, and Winchester Global Trust Company Limited, Respondent, v First Secured Capital Corp. et al., Appellants, et al., Defendants. Thomas B. Donovan et al., Nonparty Appellants.
    Submitted August 25, 2008;
    decided November 20, 2008
   Motion for leave to appeal dismissed upon the ground that the “Third Amended Order and Judgment” sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    TOA Construction Co., Inc., Respondent, v Michael Tsitsires, Appellant, et al., Respondents.
    Submitted November 17, 2008;
    decided November 20, 2008
   Motion by the National Alliance on Mental Illness of New York City, Inc. for leave to file a brief amicus curiae on the appeal herein granted. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Zulma Villalba, Appellant, v New York City Department of Education et al., Respondents.
    Submitted September 8, 2008;
    decided November 20, 2008
   Motion by the Council of School Supervisors and Administrators for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    [901 NE2d 186, 872 NYS2d 695]
    The People of the State of New York, Respondent, v Dermot MacShane, Appellant.
    Decided November 24, 2008
    APPEARANCES OF COUNSEL

      Norman A. Olch, New York City, for appellant.

      Adam B. Levy, District Attorney, Carmel (Mary Jane MacCrae of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Term should be affirmed.

Defendant Dermot MacShane failed to meet his burden of establishing a prima facie case of discrimination under step one of the three-step protocol in Batson v Kentucky (476 US 79 [1986]). As this Court has held, “sketchy assertions” and the fact that the prospective jurors “indicated no reason why they could not serve fairly” are, standing alone, generally insufficient to establish a prima facie case of discrimination (see People v Childress, 81 NY2d 263, 267, 268 [1993]).

Here, defense counsel simply asserted that the prosecutor had eliminated two male prospective jurors “for no good reason” because “she wants a female jury.” He did not articulate facts and circumstances that raised an inference that the prosecutor excused these jurors for a discriminatory reason; instead, defense counsel merely identified a general motive to discriminate untethered to the particular jurors at issue. Specifically, defense counsel did not compare the challenged jurors to similarly-situated unchallenged prospective jurors, point to factors in the challenged jurors’ background that made them likely to be pro-prosecution, or enunciate any factor that suggested that the prosecutor exercised the challenges due to the prospective jurors’ gender. Accordingly, the prosecutor was not required to provide gender-neutral reasons for her challenges to these prospective jurors. While the Appellate Term incorrectly proceeded to steps two and three of the Batson inquiry for the first time on appeal, reversal is not required because defendant failed to meet his burden of establishing a prima facie case of discrimination under step one.

The Appellate Term also erred by seemingly considering a confidential opinion of the Advisory Committee on Judicial Ethics when deciding that the trial judge did not abuse his discretion by denying defendant’s recusal motion. The confidential opinion was not part of the record on appeal. The Appellate Term correctly concluded, however, that there was no legal disqualification under section 14 of the Judiciary Law, and that the trial judge did not abuse his discretion when he made “[t]his discretionary decision . . . within the personal conscience of the court” (see People v Moreno, 70 NY2d 403, 405 [1987]).

Defendant’s remaining contention is without merit.

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

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


text:
    [901 NE2d 732, 873 NYS2d 239]
    Those Certain Underwriters at Lloyds, London, et al., Appellants, v Occidental Gems, Inc., Respondent, and Interings, Inc., et al., Appellants.
    Argued October 21, 2008;
    decided November 24, 2008

      APPEARANCES OF COUNSEL

      Abrams, Gorelick, Friedman & Jacobson, P.C., New York City (Daniel J. Friedman and Gabrielle H. Puchalsky of counsel), for Those Certain Underwriters at Lloyds, London and another, appellants.

      K&L Gates LLP, New York City (Michael R. Gordon and Elizabeth M. Harris of counsel), for Interings, Inc. and others, appellants.

      Mound Cotton Wollan & Greengrass, New York City (Daniel Markewich 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.

We are called upon to determine whether the Appellate Division correctly affirmed Supreme Court’s order denying plaintiffs’ motion to confirm a special referee’s report which recommended that defendant Occidental Gems, Inc. (Occidental) be compelled to produce (1) Vijay Mehta, a resident of Belgium, for an oral deposition in New York and (2) testimony and documents relating to a Belgian arbitration in which Occidental is not a party. We conclude that this question should be answered in the affirmative.

This dispute arises from a fidelity loss claim filed with plaintiffs (various insurance underwriters) by Occidental seeking to recover approximately $10.5 million in losses. Plaintiffs refused to pay the claim and brought a declaratory judgment action in Supreme Court alleging that the losses by Occidental were not covered under the applicable insurance policies. Pursuant to CPLR 3104, Supreme Court appointed a special referee to oversee discovery. Subsequently, plaintiffs moved, pursuant to CPLR 3126, for an order of preclusion. This motion was referred to the special referee. Upon reviewing the submitted exhibits and after hearing arguments, the special referee issued a report recommending that plaintiffs’ motion be granted to the extent of requiring Occidental to (1) produce Mr. Mehta in New York to be deposed and (2) provide testimony and documents relating to a Belgian arbitration. The special referee further recommended that “this report be approved and confirmed, upon proper application to the court pursuant to CPLR § 4403, and that the underlying relief held in abeyance be disposed of in accordance with the foregoing findings.” Plaintiffs moved to confirm the report and defendant Occidental cross-moved for an order vacating it.

After determining that the evidence did not support the special referee’s recommendations, Supreme Court denied plaintiffs’ motion to confirm the referee’s report and granted Occidental’s cross motion to vacate. In a 3-2 decision, the Appellate Division, upon its own review of the evidence, upheld the decision of Supreme Court. In so concluding, the court reaffirmed that a trial court is vested with broad discretion in supervising the discovery process and its determination will not be disturbed absent an improvident exercise of that discretion. The dissenting justices agreed with the factual findings that supported the special referee’s recommendations.

Plaintiffs argue that: (1) a trial court cannot disaffirm a special referee’s findings of fact where there is support in the record for those findings; and (2) when the trial court appoints a special referee it waives its discretion and limits its review. We disagree.

Generally, the trial court “is afforded broad discretion in supervising disclosure and its determinations will not be disturbed unless that discretion has been clearly abused. The deference afforded to the trial court regarding disclosure extends to its decision to confirm a referee’s report, so long as the report is supported by the record” (Di Mascio v General Elec. Co., 307 AD2d 600, 601 [3d Dept 2003] [internal citations omitted]). However, the Appellate Division is vested with its own discretion and corresponding power to substitute its own discretion for that of the trial court, even in the absence of abuse (see Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 745 [2000] [internal citations omitted]).

Here, the Appellate Division exercised such discretion and found that Supreme Court properly determined that the evidence did not support the special referee’s recommendation.

Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur in memorandum; Chief Judge Kaye taking no part.

Order affirmed, etc.

       [1] This reference was made pursuant to CPLR 3104 (“Supervision of disclosure”), not CPLR 4320 (“Reference to report”); accordingly, the special referee’s recommendation that her report be confirmed did not comport with the procedure set forth in CPLR 3104 (d) (any party or witness can make a motion in the court in which the action is pending to seek review of a referee’s order). Bottom line, where the reference is made under CPLR 3104, there is no requirement that the referee’s order be confirmed by the court in the absence of a request for review by a party.


text:
    In the Matter of Lorraine Abeido, Respondent, v Mohsen Abeido, Appellant.
    Submitted September 22, 2008;
    decided November 24, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Malik Allah, Appellant, v Donald Selsky, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
    Submitted September 22, 2008;
    decided November 24, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Loretta L. Havens, Respondent, v County of Saratoga et al., Appellants.
    Submitted September 29, 2008;
    decided November 24, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.