text:
    [860 NE2d 705, 827 NYS2d 88]
    In the Matter of DaimlerChrysler Corporation et al., Appellants, v Eliot Spitzer, as Attorney General of the State of New York, et al., Respondents. In the Matter of the Arbitration between General Motors Corporation, Appellant, and James Warner, Respondent.
    Argued November 14, 2006;
    decided December 14, 2006

      POINTS OF COUNSEL

      Rose Law Firm, PLLC, Albany (Paul A. Feigenbaum, Keith B. Rose and Justin E. Proper of counsel), for appellants in the first above-entitled proceeding.
    I. The Legislature’s inclusion of the phrase “continues to exist” in the present tense evidences a clear intent that the condition continue to exist at the time of the arbitration hearing or trial to recover under the repair attempt provision, regardless of whether more than four attempts to repair occurred. (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; Tompkins v Hunter, 149 NY 117; People ex rel. Harris v Sullivan, 74 NY2d 305; Blanco v American Tel. & Tel. Co., 90 NY2d 757; Enright v Eli Lilly & Co., 77 NY2d 377; People v Heine, 9 NY2d 925; Bright Homes v Wright, 8 NY2d 157; Matter of Schmidt v Roberts, 74 NY2d 513; People v Finnegan, 85 NY2d 53; United States v Wilson, 503 US 329.) II. The construction of the statute by the Appellate Division violates additional rules of statutory construction by ignoring the phrase “or more.” (Matter of SIN, Inc. v Department of Fin. of City of N.Y., 71 NY2d 616; Matter of Tonis v Board of Regents of Univ. of State of N.Y., 295 NY 286; People v Gallina, 66 NY2d 52; Matter of Van Patten v La Porta, 148 AD2d 858.) III. The different treatment of the repair provision and the days out of service provision confirms the error below. (Heard v Cuomo, 80 NY2d 684; Matter of Long v Adirondack Park Agency, 76 NY2d 416; People v Schulz, 67 NY2d 144; Matter of Albano v Kirby, 36 NY2d 526; Waddell v Elmendorf, 10 NY 170; Matter of Friss v City of Hudson Police Dept., 187 AD2d 94; Kurlander v Incorporated Vil. of Hempstead, 31 Misc 2d 121.) IV The statute’s legislative history does not support the Appellate Division’s construction of the “repair attempt” provision. (Sega v State of New York, 60 NY2d 183; People v Tychanski, 78 NY2d 909; Blanco v American Tel. & Tel. Co., 90 NY2d 757.)

      Eliot Spitzer, Attorney General, New York City (Thomas G. Conway, Caitlin J. Halligan, Michelle Aronowitz, Jane M. Azia, Matthew J. Barbaro, Stephen Mindell and Herbert Israel of counsel), respondent pro se in the first above-entitled proceeding.
    Proof of an existing defect at the time of arbitration or trial is not a prerequisite to consumer recovery under the Lemon Law. (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; Rosner v Metropolitan Prop. & Liab. Ins. Co., 96 NY2d 475; Matter of White v County of Cortland, 97 NY2d 336; Jensen v General Elec. Co., 82 NY2d 77; Motor Veh. Mfrs. Assn. of U.S. v State of New York, 75 NY2d 175; Matter of Hynson [American Motors Sales Corp.—Chrysler Corp.], 164 AD2d 41; Levine v American Motors Corp., 134 Misc 2d 1088; Matter of Bay Ridge Toyota v Lyons, 272 AD2d 397; Kucher v DaimlerChrysler Corp., 9 Misc 3d 45; Barnhart v Thomas, 540 US 20.)

      Hiscock & Barclay, LLP, Albany (Mark W. Blanchfield of counsel), for New York State Dispute Resolution Association, respondent in the first above-entitled proceeding.
    The New York State Dispute Resolution Association was entitled to abide the Attorney General’s construction of the statute. (Matter of Salvati v Eimicke, 72 NY2d 784.)

      Rose Law Firm, PLLC, Albany (Paul A. Feigenbaum, Keith B. Rose and Justin E. Proper of counsel), for appellant in the second above-entitled proceeding.
    I. The Legislature’s inclusion of the phrase “continues to exist” in the present tense evidences a clear intent that the condition continue to exist at the time of the arbitration hearing or trial to recover under the repair attempt provision, regardless of whether more than four attempts to repair occurred. (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; Tompkins v Hunter, 149 NY 117; People ex rel. Harris v Sullivan, 74 NY2d 305; Blanco v American Tel. & Tel. Co., 90 NY2d 757; Enright v Eli Lilly & Co., 77 NY2d 377; People v Heine, 9 NY2d 925; Bright Homes v Wright, 8 NY2d 157; Matter of Schmidt v Roberts, 74 NY2d 513; People

      v Finnegan, 85 NY2d 53; United States v Wilson, 503 US 329.) II. The construction of the statute by the Appellate Division violates additional rules of statutory construction by ignoring the phrase “or more.” (Matter of SIN, Inc. v Department of Fin. of City of N.Y., 71 NY2d 616; Matter of Tonis v Board of Regents of Univ. of State of N.Y., 295 NY 286; People v Gallina, 66 NY2d 52; Colbert v International Sec. Bur., 79 AD2d 448; Matter of Gerald R.M., 12 AD3d 1192; Matter of Van Patten v La Porta, 148 AD2d 858.) III. The different treatment of the repair provision and the days-out-of-service provision confirms the error below. (Heard v Cuomo, 80 NY2d 684; Matter of Long v Adirondack Park Agency, 76 NY2d 416; People v Schulz, 67 NY2d 144; Matter of Albano v Kirby, 36 NY2d 526; Waddell v Elmendorf, 10 NY 170; Matter of Friss v City of Hudson Police Dept., 187 AD2d 94; Kurlander v Incorporated Vil. of Hempstead, 31 Misc 2d 121.) IV The statute’s legislative history does not support the Appellate Division’s construction of the “repair attempt” provision. (Sega v State of New York, 60 NY2d 183; People v Tychanski, 78 NY2d 909; Matter of Bay Ridge Toyota v Lyons, 272 AD2d 397; Blanco v American Tel. & Tel. Co., 90 NY2d 757.)

      Sadis & Goldberg, LLC, New York City (Douglas R. Hirsch, Francis Bigelow, David Kasell and Jarret Kahn of counsel), for respondent in the second above-entitled proceeding.
    I. As demonstrated by the rules of statutory construction, liability under the Lemon Law is not contingent upon the condition of the vehicle at the time of hearing or trial. (Majewski v BroadalbinPerth Cent. School Dist., 91 NY2d 577; Matter of Mills v Staffking [Hidden Val.], 271 AD2d 146; Kucher v DaimlerChrysler Corp., 9 Misc 3d 45; Barclay Knitwear Co. v King’swear Enters., 141 AD2d 241; Matter of DaimlerChrysler Corp. v Spitzer, 6 Misc 3d 228, 26 AD3d 88; Matter of White v County of Cortland, 97 NY2d 336; Motor Veh. Mfrs. Assn. of U.S. v State of New York, 75 NY2d 175.) II. The Appellate Division correctly interpreted the words “or more” as ensuring that consumers who exceed the minimum number of repair attempts are entitled to the presumption. (Matter of DaimlerChrysler Corp. v Spitzer, 26 AD3d 88; Hadden v Consolidated Edison Co. of N.Y., 45 NY2d 466.) III. The repair-attempt provision and the days-out-of-service provision use different language because they address two different repair scenarios. (Matter of DaimlerChrysler Corp. v Spitzer, 6 Misc 3d 228; Kurlander v Incorporated Vil. of Hempstead, 31 Misc 2d 121; McKuskie v Hendrickson, 128 NY 555.) IV The Lemon Law’s use of the present tense verb “continues” does not compel the conclusion that the defect must exist at the time of trial. (Fortune v Scott Ford, 175 AD2d 303; Jandreau v La Vigne, 170 AD2d 861; Jason v Summerfield, 214 F2d 273; Matter of Cario v Sobol, 157 AD2d 172; Ohio Val. Envtl. Coalition v Horinko, 279 F Supp 2d 732.) V Decisions from other courts demonstrate that the Appellate Division’s interpretation of the Lemon Law is correct.
   OPINION OF THE COURT

Graffeo, J.

The purchaser of a new motor vehicle is entitled to a “repair presumption” and therefore can seek relief under the New Car Lemon Law when the consumer can demonstrate that the vehicle has been subject to repair four or more times within a prescribed time period and the same substantial defect continues to exist. The common issue in these two appeals is whether a consumer, who claims the benefit of the presumption, must also establish that the vehicle remains defective at the time of trial or arbitration. We conclude that the statute does not require such a showing and therefore affirm the orders of the Appellate Division so holding.

New Car Lemon Law

In 1983, the Legislature enacted the New Car Lemon Law (General Business Law § 198-a) “to provide New York consumers greater protection than that afforded by automobile manufacturers’ express limited warranties or the Federal Magnuson-Moss Warranty Act” (Motor Veh. Mfrs. Assn. of U.S. v State of New York, 75 NY2d 175, 179 [1990]). The statute obligates manufacturers to repair, without charge, any new motor vehicle which fails to conform to all express warranties during the first 18,000 miles of operation or for two years immediately following delivery of the vehicle, whichever comes first (see General Business Law § 198-a [b] [1]). If, within this time frame, a manufacturer is unable to correct a defect that “substantially impairs” the value of the vehicle “after a reasonable number of attempts,” the manufacturer — at the consumer’s option — must either replace the vehicle or accept the return of the vehicle in exchange for a refund of the purchase price (General Business Law § 198-a [c] [1]).

Under the statute, a presumption that the consumer has met the “reasonable number of attempts” requirement arises in two circumstances: if the same defect has been subject to repair “four or more times” but “continues to exist” — commonly termed the “repair presumption” (General Business Law § 198-a [d] [1]); or if the vehicle has been out of service for a total of 30 or more days — referred to as the “days-out-of-service presumption” (General Business Law § 198-a [d] [2]). The triggering of either presumption does not ensure that a consumer will recover. A manufacturer may attempt to rebut the presumption and is afforded an affirmative defense when it can show either that the defect “does not substantially impair” the vehicle’s value or the condition resulted from “abuse, neglect or unauthorized modifications or alterations of the motor vehicle” (General Business Law § 198-a [c] [3] [i], [ii]).

As originally enacted, the New Car Lemon Law required consumers to commence a legal action to obtain relief from manufacturers (see General Business Law § 198-a [j]). In 1986, the Legislature amended the statute to give consumers the option of resolving disputes by arbitration and directed the Attorney General to establish and supervise the arbitration hearing process (see General Business Law § 198-a [k]). In addition to promulgating regulations that govern the relevant procedures (see 13 NYCRR part 300), the Attorney General created a written consumer’s guide to Lemon Law procedures and standard forms for use in arbitration. Beginning in 1987, the consumer’s guide and forms stated that a consumer would be eligible for a refund or replacement vehicle only when the purchaser could demonstrate that a defect still existed as of the date of arbitration. But in 2002, in response to Matter of Bay Ridge Toyota v Lyons (272 AD2d 397 [2d Dept 2000]), the Attorney General reconsidered his interpretation of General Business Law § 198-a (d), and concluded that the presence of a defect at the time of arbitration or trial was not a prerequisite for recovery. In accordance with this view, the Attorney General amended the consumer guide and forms, effective in 2003, to explain that a consumer may be entitled to relief if, within the first 18,000 miles or two years, the vehicle was subject to four or more unsuccessful repair attempts or out of service for 30 days, notwithstanding that the condition was subsequently repaired.

Matter of DaimlerChrysler Corporation v Spitzer

Petitioners DaimlerChrysler Corporation, General Motors Corporation and Saturn Corporation (collectively, the manufacturers) object to the Attorney General’s new interpretation of the statute to the extent that it permits consumers relying on the repair presumption to seek relief when their vehicles have been fixed after more than four attempts. The manufacturers commenced CPLR article 75 proceedings to vacate a series of arbitration awards in which the arbitrators had applied the Attorney General’s new construction of the repair presumption in granting relief to consumers. The courts vacated the awards, determining that a consumer relying on the repair presumption must demonstrate that the defect “continues to exist” at the time of the arbitration hearing.

Relying on these decisions, the manufacturers brought this CPLR article 78 proceeding to enjoin the Attorney General and respondent New York State Dispute Resolution Association from using the new interpretation of General Business Law § 198-a (d) (1) in the Lemon Law arbitration system. Supreme Court denied the petition and dismissed this proceeding. The Appellate Division affirmed. We granted the manufacturers leave to appeal.

Matter of General Motors Corporation (Warner)

In March 2003, respondent James Warner bought a new truck from a dealership known as LaQua’s 481. The vehicle was manufactured by petitioner General Motors Corporation. Shortly after acquiring the truck, Warner discovered a transmission problem, which LaQua attempted to fix on five occasions between April and November 2003. In December 2003, Warner filed a request for arbitration under the New Car Lemon Law. After a hearing, the arbitrator found that there had been four or more attempts to repair the same defect and that the problem persisted following the fourth attempt. The arbitrator awarded Warner a refund of approximately $30,000.

General Motors brought this article 75 proceeding to vacate the award, arguing that Warner could not prevail unless he demonstrated that LaQua’s final repair attempt proved unsuccessful such that the vehicle remained defective at the time of the commencement of the arbitration hearing. Supreme Court granted the petition to the extent it sought a new hearing to determine whether the problem had in fact been remedied prior to the hearing. The Appellate Division reversed and reinstated the arbitration award. We granted General Motors leave to appeal.

Analysis

In these cases, the manufacturers contend that a plain reading of the repair presumption in General Business Law § 198-a (d) (1) requires a consumer to establish that the defect continues to exist at the time of trial or arbitration. They submit that the Legislature must have intended such a result based on the placement of the phrase “continues to exist” in the statute. Under their reading of the provision, a consumer may seek Lemon Law relief after four unsuccessful repair attempts but, if a consumer voluntarily decides to give the manufacturer additional repair opportunities that prove successful in eliminating the problem, the consumer is precluded from recovery. We disagree.

When presented with a question of statutory interpretation, our primary consideration “is to ascertain and give effect to the intention of the Legislature” (Riley v County of Broome, 95 NY2d 455, 463 [2000] [internal quotation marks and citation omitted]). The statutory text is the clearest indicator of legislative intent and courts should construe unambiguous language to give effect to its plain meaning (see Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998]; Matter of State of New York v Ford Motor Co., 74 NY2d 495, 500 [1989]). At the same time, because the New Car Lemon Law is remedial in nature, it should be liberally construed in favor of consumers (see Matter of White v County of Cortland, 97 NY2d 336, 339 [2002]). And where, as here, “the question is one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent, there is little basis to rely on any special competence or expertise of the administrative agency” — in this case, the Attorney General’s office (Matter of Gruber [New York City Dept. of Personnel — Sweeney], 89 NY2d 225, 231 [1996] [internal quotation marks and citation omitted]).

The substantive remedy provision of the New Car Lemon Law states, in relevant part:

“If, within [the first 18,000 miles or two years], the manufacturer or its agents or authorized dealers are unable to repair or correct any defect or condition which substantially impairs the value of the motor vehicle to the consumer after a reasonable number of attempts, the manufacturer, at the option of the consumer, shall replace the motor vehicle with a comparable motor vehicle, or accept return of the vehicle from the consumer and refund to the consumer the full purchase price” (General Business Law § 198-a [c] [1] [emphasis added]).

Under this statute, a consumer’s eligibility for recovery hinges on whether the manufacturer was unable to repair the vehicle after a reasonable number of attempts. Nothing in this section indicates that the vehicle’s condition on the date of trial or arbitration has any relevance.

The New Car Lemon Law gives tangible meaning to the phrase “reasonable number of attempts” through the repair and days-out-of-service presumptions. Specifically, General Business Law § 198-a (d) provides:

“It shall be presumed that a reasonable number of attempts have been undertaken to conform a motor vehicle to the applicable express warranties, if:
“(1) the same nonconformity, defect or condition has been subject to repair four or more times by the manufacturer or its agents or authorized dealers . . . but such nonconformity, defect or condition continues to exist; or
“(2) the vehicle is out of service by reason of repair of one or more nonconformities, defects or conditions for a cumulative total of thirty or more calendar days” (emphasis added).

Construing these two presumptions together with the substantive remedy provision (see Matter of Charter Dev. Co., L.L.C. v City of Buffalo, 6 NY3d 578, 581 [2006]), it is obvious that subdivision (d) simply quantifies the minimum that presumptively amounts to a reasonable number of repair attempts. Although the manufacturers concede that a consumer whose vehicle has been out of service for 30 or more days gains the presumption regardless of whether the vehicle is fixed after the 30-day mark (see General Business Law § 198-a [d] [2]), they argue that a consumer relying on the repair presumption (General Business Law § 198-a [d] [1]) must show that the defective condition continues at the time of trial or arbitration.

We do not read the repair presumption as requiring a consumer to establish that the vehicle defect continued to exist until the trial or hearing date. Rather, the plain language of the provision obligates a consumer to demonstrate that the vehicle was subject to repair at least four times and that the same defective condition remained unresolved after the fourth attempt. Therefore, once a consumer has met the four-repair threshold, the presumption arises regardless of whether the manufacturer later remedies the problem. After four attempts, it is presumed that the manufacturer has been given a reasonable number of opportunities to fix the vehicle. The determination of whether a reasonable number of attempts took place for a consumer to recover does not turn on whether the car was ultimately repaired. If the Legislature intended to condition recovery on such a requirement, it easily could have said so.

Contrary to the manufacturers’ argument, our interpretation gives meaning to all of the statutory language in the context of the statute as a whole. The requirement that the defect “continues to exist” is simply another way of saying that the fourth repair attempt was unsuccessful. Without that language, a consumer could meet the presumption even if the defect was repaired on the fourth visit. The phrase “or more” clarifies that consumers may opt to bring their vehicles for repair more than four times yet still retain eligibility for Lemon Law relief. The Legislature likely included the phrase “or more” in the days-out-of-service presumption for the same reason. In short, it is clear that the Legislature intended to create two bright-line presumptions by which a consumer can demonstrate that the manufacturer was accorded a reasonable number of attempts to alleviate the problem; neither presumption is dependent upon a showing that the defect was not repaired at the time of trial or arbitration.

This interpretation is also consistent with the remedial nature of the New Car Lemon Law. The statutory construction posited by the manufacturers would restrict its salutary objectives by effectively requiring a consumer to leave the new vehicle in an inoperable or malfunctioning state in order to preserve the right to seek Lemon Law relief. As the Appellate Division aptly observed:

“[T]he average consumer, who is typically obligated to make monthly car payments and rely on the car for employment, should not be forced to continue to drive a defective new vehicle until the date of adjudication simply to preserve his or her rights under the New Car Lemon Law. Nor does the average consumer have the luxury of simply casting a new, albeit defective, vehicle aside while awaiting disposition of a New Car Lemon Law action or proceeding” (26 AD3d 88, 92 [2005]).

Finally, the result we reach today is buttressed by the legislative history of the New Car Lemon Law, which indicates that a consumer’s eligibility for relief under the statute arises upon a fourth unsuccessful repair attempt. The sponsors’ memorandum in support of the legislation states:

“Presently, the Magnuson-Moss Act has a so-called ‘lemon provision’ which entitles the consumers to repair [or] replacement of a defective product. Unfortunately, the Magnuson-Moss Act fails to define a reasonable number of attempts to remedy defects. This bill contains clearly expressed guidelines in determining when a ‘reasonable number’ of repair attempts has been surpassed” (Sponsors’ Mem, Bill Jacket, L 1983, ch 444).

It further explains that the New Car Lemon Law would require “the manufacturer to replace the automobile or refund to the consumer the full purchase [price] after four attempts have been made to repair the car or after the car has been out of service for a total of 30 or more days” (id.). In contrast, nothing in the legislative history indicates an intention to require consumers to leave their vehicles in disrepair pending arbitration or trial.

Accordingly, in each case the order of the Appellate Division should be affirmed, with costs.

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

In each case: Order affirmed, with costs.

      . In Lyons, the Second Department held that, under an analogous provision of the Used Car Lemon Law (General Business Law § 198-b [c] [2] [b]), once a car had been out of service for 15 days, a presumption arose that the manufacturer was afforded a reasonable number of attempts to repair the defect, regardless of “whether the car was presently operable” (272 AD2d at 397).

      . The Attorney General was not a party to any of these proceedings.

      . In some of these proceedings, the courts granted the petitions in their entirety, finding that the vehicles had in fact been repaired before the hearing date. In others, the courts granted the petitions to the extent of remitting the matter for a new arbitration hearing to determine whether the defect had been repaired.

      . The New York State Dispute Resolution Association administers the Lemon Law arbitration program under the Attorney General’s supervision.

      . Had the Legislature desired to immunize manufacturers from Lemon Law liability when they repaired a vehicle, it likely would have included such language in either the substantive remedy provision (General Business Law § 198-a [c] [1]) or as an affirmative defense (see General Business Law § 198-a [c] [3]).


source: Caselaw Access Project

author: Pigott, J.

license: Public Domain

text:
    [860 NE2d 711, 827 NYS2d 94]
    Boslow Family Limited Partnership, Appellant, v Glickenhaus & Co., Respondent.
    Argued October 12, 2006;
    decided December 14, 2006

      POINTS OF COUNSEL

      Llorca & Hahn LLP, New York City (Richard E. Hahn of counsel), for appellant.
    I. Glickenhaus & Co. is precluded from contending the Boslow Family Limited Partnership was not in existence during the period the investment advisory agreement was in effect from 1997 to 2000. (Eaton v Aspinwall, 19 NY 119; Methodist Episcopal Union Church v Pickett, 19 NY 482; Whitford v Laidler, 94 NY 145; Commercial Bank of Keokuk v Pfeiffer, 108 NY 242; Chubb v Upton, 95 US 665; Rutland House Assoc. v Rutroad Realty Corp., 28 AD2d 152; Kenneth Pregno Agency v Letterese, 112 AD2d 1032; A. A. Sutain, Ltd. v Montgomery Ward & Co., 22 AD2d 607, 17 NY2d 776; Lorisa Capital Corp. v Gallo, 119 AD2d 99; Puma Indus. Consulting, Inc. v Dual Assoc., Inc., 808 F2d 982.) II. This suit should not be held barred by the fact that the Boslow Family Limited Partnership was not formed in compliance with the statute until after this suit was commenced, and any defect was remedied during the litigation and prior to the motion to dismiss. (City of New York v State of New York, 86 NY2d 286; Rutland House Assoc. v Rutroad Realty Corp., 28 AD2d 152; Simcuski v Saeli, 44 NY2d 442.) III. Plaintiff was a de facto limited partnership from 1997 until it was formed de jure in February 2003. (Matter of Planz [Sees], 282 App Div 552; Peerless Mills, Inc. v American Teh & Tel. Co., 527 F2d 445; Kiamesha Dev. Corp. v Guild Props., 4 NY2d 378; Conway v Samet, 59 MisC 2d 666; Garzo v Maid of Mist Steamboat Co., 303 NY 516; Matter of Intelligent Bank Mgt. [East Coast Fin. Corp.], 207 AD2d 760; National Bank of N. Am. v Paskow, 75 AD2d 568; L-Tec Elecs. Corp. v Cougar Elec. Org., Inc., 198 F3d 85; Methodist Episcopal Union Church v Pickett, 19 NY 482; Whitford v Laidler, 94 NY 145.)

      Chadbourne & Parke LLP, New York City (Alan I. Raylesberg and Matthew I. Kliegman of counsel), for respondent.
    I. The amended complaint was properly dismissed on the independent ground that the Boslow Family Limited Partnership, as a nonexistent entity, did not have the power to contract when it purported to enter into the contract with Glickenhaus & Co. or throughout the time that Boslow maintained an account as Glickenhaus. (Bay Shore Family Partners v Foundation of Jewish Philanthropies of Jewish Fedn. of Greater Fort Lauderdale,
      239 AD2d 373; Ruzicka v Rager, 305 NY 191; 183 Holding Corp. v 183 Lorraine St. Assoc., 251 AD2d 386; Manhattan Co. v Laimbeer, 108 NY 578; Peerless Mills, Inc. v American Tel. & Tel. Co., 527 F2d 445; Matter of Alonzo M. v New York City Dept. of Probation, 72 NY2d 662; Rutland House Assoc. v Rutroad Realty Corp., 28 AD2d 152; Matter of Mendez v Reynolds, 248 AD2d 62; Health-Loom Corp. v Soho Plaza Corp., 272 AD2d 179; Commercial Bank of Keokuk v Pfeiffer, 108 NY 242.) II. The amended complaint was properly dismissed on the independent ground that the Boslow Family Limited Partnership as a nonexistent entity, lacked the capacity to commence this action. (Barklee Realty Co. v Pataki, 309 AD2d 310; Curiale v Ardra Ins. Co., 88 NY2d 268; Rutland House Assoc. v Rutroad Realty Corp., 28 AD2d 152; City of New York v State of New York, 86 NY2d 286; Simcuski v Saeli, 44 NY2d 442; Bay Shore Family Partners v Foundation of Jewish Philanthropies of Jewish Fedn. of Greater Fort Lauderdale, 239 AD2d 373; Kiamesha Dev. Corp. v Guild Props., 4 NY2d 378; Tri-Terminal Corp. v CITC Indus., 78 AD2d 609; Acquisition Am. VI, LLC v Lamadore, 5 Misc 3d 461; Showcase Limousine v Carey, 269 AD2d 133.) III. The First Department decision affirming the judgment dismissing the amended complaint should he affirmed on either of the two independent grounds, or both. (Lunney v Prodigy Servs. Co., 94 NY2d 242; Matter of Tall Trees Constr. Corp. v Zoning Bd. of Appeals of Town of Huntington, 97 NY2d 86; Schiavone v City of New York, 92 NY2d 308.)
   OPINION OF THE COURT

Pigott, J.

The courts below dismissed the complaint on the grounds that plaintiff, a purported limited partnership, had not filed its initial certificate with the Department of State at the time it entered into a contract with defendant or at the time it brought suit. We reverse on the ground that defendant is estopped from raising plaintiffs claimed lack of capacity to contract or sue as a defense to this case.

In 1997, the Boslow family signed an initial certificate of limited partnership to form plaintiff, the Boslow Family Limited Partnership, and entmsted the certificate to counsel for filing. Unbeknownst to them, counsel failed to file the initial certificate with the Department of State. On July 31, 1997, plaintiff opened a discretionary advisory account with defendant Glickenhaus & Co., an investment advisory firm. Plaintiff executed a discretionary investment advisory agreement giving defendant “full discretion and authority to manage” the advisory account, which remained open from July 1997 until the fall of 2000. In exchange for managing plaintiffs advisory account, defendant received approximately $31,000 in advisory fees. Plaintiff closed the advisory account in the fall of 2000 because it was displeased with the “propriety of the investments made by defendant.”

By summons with notice dated March 27, 2002, plaintiff commenced this action against defendant seeking damages for breach of contract and negligence in managing plaintiffs funds, and served a complaint on defendant in October of 2002. On February 11, 2003, almost a year after commencing this action, plaintiff filed its initial certificate with the Department of State upon discovering it had not been filed.

Defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (1), (3) and (7), asserting, among other things, that plaintiff had failed to file its initial certificate prior to the commencement of the action and therefore lacked the capacity to enter into the agreement and bring suit. Supreme Court granted defendant’s motion on those grounds. The Appellate Division affirmed Supreme Court’s dismissal of plaintiffs complaint. We granted leave and now reverse.

The Revised Limited Partnership Act, article 8-A of the Partnership Law, applies to all limited partnerships formed after July 1, 1991 (see Partnership Law § 121-201 [a]). Partnership Law § 121-201 (b) states, in pertinent part, that

“[a] limited partnership is formed at the time of the filing of the initial certificate of limited partnership with the department of state . . . The filing of the certificate shall, in the absence of actual fraud, be conclusive evidence of the formation of the limited partnership as of the time of filing.”

Partnership Law § 121-206 provides that “[a] signed certificate of limited partnership . . . shall be delivered to the department of state” (emphasis supplied).

It is undisputed that plaintiff had not complied with the Partnership Law’s mandatory formation requirements at the time it entered into the agreement and commenced this suit. Defendant, however, does not dispute that it derived a benefit from the agreement and that the investment services provided were not dependent in any way on the nature of the plaintiff as a limited partnership. We hold, therefore, that defendant is estopped from denying the partnership’s validity (see City of Buffalo v Balcom, 134 NY 532, 534-536 [1892]; Mayor of City of N.Y. v Sonneborn, 113 NY 423, 426 [1889]).

“[I]f neither of the parties [to a suit] is aware that corporate status has not been achieved, then corporation by estoppel may apply” (8 Fletcher, Cyclopedia of Corporations § 3890 [2006]). The doctrine of estoppel is not the same as that of de facto corporation, a doctrine that requires a party to show that it made a colorable attempt to comply with the statutes governing incorporation (see Stevens v Episcopal Church History Co., 140 App Div 570 [1st Dept 1910]). An Oregon case, Timberline Equip. Co., Inc. v Davenport (267 Or 64, 514 P2d 1109 [1973, en banc]), describes the estoppel doctrine:

“ ‘The so-called estoppel that arises to deny corporate capacity does not depend on the presence of the technical elements of equitable estoppel, viz., misrepresentations and change of position in reliance thereon, but on the nature of the relations contemplated, that one who has recognized the organization as a corporation in business dealings should not be allowed to quibble or raise immaterial issues on matters which do not concern him in the slightest degree or affect his substantial rights’ ” (267 Or at 70, 514 P2d at 1111-1112, quoting Ballantine, Manual of Corporation Law and Practice § 27 [1930]).

The Timberline court explains that “to apply the doctrine correctly, the cases must be classified according to who is being charged with estoppel” (267 Or at 70, 514 P2d at 1112).

“When a defendant seeks to escape liability to a corporation plaintiff by contending that the plaintiff is not a lawful corporate entity, courts readily apply the doctrine of corporation by estoppel. . . .
“On the other hand, when individuals . . . seek to escape liability by contending that the debtor is a corporation . . . rather than the individual who purported to act as a corporation, the courts are more reluctant to estop the plaintiff from attacking the legality of the alleged debtor corporation” (267 Or at 70-71, 514 P2d at 1112 [citations omitted]).

Defendant is estopped from contending that plaintiff was not a limited partnership because defendant is using that sword to escape liability after it benefitted from its contract with plaintiff. Defendant has conceded that the services it provided plaintiff were not dependent on plaintiffs limited partnership status, or lack thereof. Therefore, because defendant is estopped from questioning the validity of the agreement or plaintiffs right to sue thereon, we do not, and need not, address plaintiffs argument that it should be afforded “de facto limited partnership” status.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and defendant’s motion to dismiss the complaint denied.

Chief Judge Kaye and Judges Rosenblatt, Graffeo, Read and Smith concur; Judge Ciparick taking no part.

Order, insofar as appealed from, reversed, etc.


text:
    [850 NE2d 1157, 818 NYS2d 182]
    The People of the State of New York, Appellant, v Mednan Redzeposki, Respondent.
    Argued May 2, 2006;
    decided June 6, 2006
    APPEARANCES OF COUNSEL

      Robert T. Johnson, District Attorney, Bronx (Jillian E. Wieder, Joseph N Ferdenzi and Allen H. Saperstein of counsel), for appellant.

      Legal Aid Society, New York City (Ellen Dille, Steven Banks and Laura R. Johnson of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the case remitted to that Court for consideration of the facts (see CPL 470.25 [2] [d]; 470.40 [2] [b]).

“Before proceeding in defendant’s absence, the court should . . . ma[ke] inquiry and recite[ ] on the record the facts and reasons it relied upon in determining that defendant’s absence was deliberate” (People v Brooks, 75 NY2d 898, 899 [1990]). Here, the trial court properly inquired into defendant’s absence and reasonably determined — based on the court’s own observation as well as defense counsel’s explanation — that defendant had deliberately left the courthouse shortly before announcement of the jury verdict.

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

Order reversed, etc.


text:
    [850 NE2d 1157, 818 NYS2d 182]
    Harry Kushner et al., Appellants, v City of Albany, Respondent.
    Decided June 6, 2006

      APPEARANCES OF COUNSEL

      Rothschild Law Firm, EC., Syracuse (Martin J. Rothschild of counsel), for appellants.

      Napierski, Vandenburgh & Napierski, L.L.E., Albany (Eugene Daniel Napierski of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

The Appellate Division properly determined that plaintiffs failed to raise a triable issue of fact sufficient to withstand a motion for a directed verdict on the question of whether plaintiffs alleged injuries resulted from an affirmative act of negligence that would preclude defendant City of Albany from relying on its prior written notice law (see Amabile v City of Buffalo, 93 NY2d 471, 473-474 [1999]).

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

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


text:
    In the Matter of John L. Eadie et al., Appellants, v Town Board of the Town of North Greenbush et al., Respondents.
    Submitted May 15, 2006;
    decided June 6, 2006
   Motion by Young, Sommer, Ward, Ritzenberg, Baker & Moore, LLC to withdraw as counsel for the Town respondents granted. Motion by the Gallogly respondents, treated as a motion to limit briefing and argument on the appeal, denied.

Judge Read taking no part.


text:
    Daniel Hernandez et al., Appellants, v Victor L. Robles, Respondent. In the Matter of Elissa Kane et al., Appellants, v John Marsolais, as Albany City Clerk, et al., Respondents. Sylvia Samuels et al., Appellants, v New York State Department of Health et al., Respondents. Jason Seymour et al., Appellants, v Julie Holcomb, as City Clerk of the City of Ithaca, et al., Respondents.
    Submitted May 8, 2006;
    decided June 6, 2006
   Motion by Pastor Gregory A. Wilk et al. for leave to file a brief amici curiae on the appeals herein granted. Two copies of the brief may be served and 24 copies filed within seven days.

Judge Rosenblatt taking no part.


text:
    Daniel Hernandez et al., Appellants, v Victor L. Robles, Respondent. In the Matter of Elissa Kane et al., Appellants, v John Marsolais, as Albany City Clerk, et al., Respondents. Sylvia Samuels et al., Appellants, v New York State Department of Health et al., Respondents. Jason Seymour et al., Appellants, v Julie Holcomb, as City Clerk of the City of Ithaca, et al., Respondents.
    Submitted May 22, 2006;
    decided June 6, 2006
   Motion by Paul McHugh, M.D. et al. for leave to file a brief amici curiae on the appeals herein granted. Two copies of the brief may be served and 24 copies filed within seven days.

Judge Rosenblatt taking no part.


text:
    Annette Meiselman, Appellant, v Daniel Kaplan et al., Defendants, and Meyers Moving & Storage Co., Respondent.
    Submitted April 10, 2006;
    decided June 6, 2006
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Raveendran Narayanan, Appellant, v City of New York, Defendant, and FJC Security Services, Inc., Respondent.
    Submitted March 27, 2006;
    decided June 6, 2006
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    The People of the State of New York, Respondent, v Ronald Ackridge, Appellant.
    Submitted May 8, 2006;
    decided June 6, 2006
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 denied as unnecessary and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Alan Brown, Appellant.
    Submitted May 22, 2006;
    decided June 6, 2006
   Motion for assignment of counsel granted and Laura R. Johnson, Esq., Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Sterling A. Cagle, Appellant.
    Submitted May 30, 2006;
    decided June 6, 2006
   Motion for assignment of counsel granted and Frank J. Nebush, Jr., Esq., Oneida County Public Defender, Union Station, 321 Main Street, Utica, New York 13501, assigned as counsel to the appellant on the appeal herein.


text:
    In the Matter of Shondel J., Respondent, v Mark D., Appellant.
    Submitted May 8, 2006;
    decided June 6, 2006
   Motion by US Citizens against Paternity Fraud et al. for leave to file a brief amici curiae on the appeal herein denied as untimely (see Rules of Practice of Court of Appeals [22 NYCRR] § 500.23).


text:
    [850 NE2d 1151, 818 NYS2d 175]
    The People of the State of New York, Respondent, v Juan Serrano, Appellant.
    Argued May 11, 2006;
    decided June 8, 2006

      APPEARANCES OF COUNSEL

      Center for Appellate Litigation, New York City (Carol A. Zeldin and Robert S. Dean of counsel), for appellant.

      Robert M. Morgenthau, District Attorney, New York City (Grace Vee and David M. Cohn of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. The trial court did not abuse its discretion by calling 44 people for simultaneous voir dire questioning.

Defendant was arrested during a buy-and-bust operation in June 2001 for selling heroin. He was convicted of criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]). At the start of jury selection, the trial court called 44 individuals for simultaneous questioning, placing 12 in the jury box and the others in four front rows of the courtroom. The defense attorney objected to the number of prospective jurors, stating that he would have difficulty conducting an effective voir dire since many prospective jurors sat behind him.

The trial court overruled the objection, noting that this procedure was approved in People v Camacho (230 AD2d 604 [1st Dept 1996], affd on other grounds 90 NY2d 558 [1997]), that counsel could turn his chair around at any point to observe any prospective juror, and that although the follow-up questioning might take longer than usual, the 44-juror voir dire would continue in the interests of efficiency. The Appellate Division affirmed defendant’s conviction and the trial court’s procedure (19 AD3d 303 [1st Dept 2005]), citing its approval of this method in People v Association of Trade Waste Removers of Greater N.Y. (267 AD2d 137 [1st Dept 1999]), People v Campbell (259 AD2d 447 [1st Dept 1999]), and People v Camacho (supra).

The relevant statute, CPL 270.15 (1) (a), states in part:

“If no challenge to the panel is made as prescribed by section 270.10, or if such challenge is made and disallowed, the court shall direct that the names of not less than twelve members of the panel be drawn and called as prescribed by the judiciary law. Such persons shall take their places in the jury box and shall be immediately sworn to answer truthfully questions asked them relative to their qualifications to serve as jurors in the action” (emphasis added).

In 1981, this statute was amended to allow “not less than twelve” prospective jurors to be called in order to “permit the simultaneous examination of as many jurors as possible, and thus reduce the number of ‘rounds’ required to complete the selection” (Preiser, Practice Commentaries [McKinney’s Cons Laws of NY, Book 11 A, CPL 270.15, at 275]). The prior version mandated that 12 persons be seated for questioning. Tellingly, the Legislature set no upper limit for the number of prospective jurors, thus allowing judges discretion to make their courtrooms, and voir dire, more efficient.

Defendant has not demonstrated that he could not conduct a voir dire by the trial court’s decision to expand the jury box. During voir dire, counsel expressed no inability to observe, hear or assess the demeanor and qualifications of, or exercise challenges against, any prospective jurors. There was also no evidence of prejudice on the record at the end of voir dire. We therefore conclude that there was no abuse of discretion in applying CPL 270.15 (1) (a).

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

Order affirmed in a memorandum.


text:
    [850 NE2d 1161, 818 NYS2d 186]
    William Bryant, Respondent, v State of New York, Appellant.
    Decided June 8, 2006

      APPEARANCES OF COUNSEL

      Eliot Spitzer, Attorney General, Albany (Michael S. Buskus, Caitlin J. Halligan, Daniel Smirlock and Peter H. Schiff of counsel), for appellant.

      Bergstein & Ullrich, LLP, Chester (Christopher D. Watkins and Stephen Bergstein of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

Defendant’s appeal should be dismissed, without costs, upon the ground that the Appellate Division did not have the power to grant leave to appeal to the Court of Appeals on a certified question in these circumstances (see NY Const, art VI, § 3 [b] [3], [4]; CPLR 5601 [c]; 5602 [b] [1]; Maynard v Greenberg, 82 NY2d 913, 914 [1994]). The apportionment of fault is a component of the liability determination, which was the subject of the initial trial.

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

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


text:
    Appalachian Insurance Company, Respondent, v General Electric Company, Appellant, and Riunione Adriatica DiSicurta, Also Known as Adriatic Insurance Company, et al., Respondents, et al., Defendants. (And a Third-Party Action.)
    Submitted June 5, 2006;
    decided June 8, 2006
   Motion by Certain Underwriters at Lloyd’s, London for leave to file a brief amici curiae on the appeal herein granted. Two copies of the brief may be served and 24 copies filed within seven days.

Judge Read taking no part.


text:
    Victor Batshever, Appellant, v Michael Asen et al., Respondents.
    Submitted April 17, 2006;
    decided June 8, 2006
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain this motion for leave to appeal from the order of the Appellate Division entered in this action commenced in the Civil Court of the City of New York (see NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]). Motion for poor person relief dismissed as academic.


text:
    Citibank, N.A., Respondent, v Peter Clavan, Appellant.
    Submitted April 10, 2006;
    decided June 8, 2006
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain this motion for leave to appeal from the order of the Appellate Division entered in this action commenced in the Civil Court of the City of New York (see NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]). Motion for a stay etc. dismissed as academic.


text:
    Bella Davis, Respondent, v Michael Melnicke, Appellant.
    Submitted May 15, 2006;
    decided June 8, 2006
   Appeal, insofar as taken from that portion of the Appellate Division order that affirmed the appointment of an arbitrator, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that such portion of the order does not directly involve a substantial constitutional question; appeal otherwise dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the remaining portion of the Appellate Division order does not finally determine an action or proceeding within the meaning of the Constitution.


text:
    In the Matter of Frederick Franklin, Respondent, v Tara Christie Miner, as Records Access Officer, New York County District Attorney’s Office, Appellant. Association of Surrogate’s and Supreme Court Reporters Within the City of New York, Intervenor-Respondent.
    Submitted January 30, 2006;
    decided June 8, 2006
   Motion for leave to appeal denied. The Court of Appeals restates the rule that denial of a motion for leave to appeal is not equivalent to an affirmance and has no precedential value (see Matter of Marchant v Mead-Morrison Mfg. Co., 252 NY 284, 297-298 [1929, Cardozo, Ch.J.]).


text:
    In the Matter of Frederick Franklin, Respondent, v Tara Christie Miner, as Records Access Officer, New York County District Attorney’s Office, Respondent. Association of Surrogate’s and Supreme Court Reporters Within the City of New York, Intervenor-Appellant.
    Submitted March 6, 2006;
    decided June 8, 2006
   Motion for leave to appeal denied. The Court of Appeals restates the rule that denial of a motion for leave to appeal is not equivalent to an affirmance and has no precedential value (see Matter of Marchant v Mead-Morrison Mfg. Co., 252 NY 284, 297-298 [1929, Cardozo, Ch.J.]).


text:
    In the Matter of Peter Graziano, Appellant, v Robert Dennison, Respondent.
    Submitted April 17, 2006;
    decided June 8, 2006
   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 Errol Irving, Appellant, v New York State Division of Parole, Respondent.
    Submitted May 22, 2006;
    decided June 8, 2006
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Fourth Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).


text:
    In the Matter of Leroy C., Jr. and Others, Children Alleged to be Permanently Neglected. Hanna N., Appellant; St. Christopher’s, Inc., et al., Respondents, et al., Respondent.
    Submitted May 1, 2006;
    decided June 8, 2006
   Motion for reargument of motion for leave to appeal denied [see 6 NY3d 708]. Cross motion for imposition of sanctions denied.


text:
    The People of the State of New York, Respondent, v Bobby Lane, Appellant.
    Submitted June 5, 2006;
    decided June 8, 2006
   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 ex rel. Ronald M. Ackridge, Appellant, v Warren D. Barkley, Respondent.
    Submitted April 10, 2006;
    decided June 8, 2006
   Motion for leave to appeal dismissed upon the ground that it does not lie from the order of the individual Justice of the Appellate Division (see NY Const, art VI, § 3; CPLR 5602).


text:
    In the Matter of Thomas Riley, Appellant, v Glenn S. Goord, as Commissioner of Correctional Services, Respondent.
    Submitted May 1, 2006;
    decided June 8, 2006
   Motion for reargument denied [see 6 NY3d 823]. Motion for poor person relief dismissed as academic.


text:
    Riverview Development Holding Corp., Respondent, v Maria Doe, Also Known as Maria Calderon, Appellant.
    Submitted April 10, 2006;
    decided June 8, 2006
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain this motion for leave to appeal from the order of the Appellate Division entered in this proceeding commenced in the Civil Court of the City of New York (see NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]).


text:
    Xand Corporation, Appellant, v Reliable Systems Alternatives Corporation, Respondent.
    Submitted May 1, 2006;
    decided June 8, 2006
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]; Eaton v State of New York, 76 NY2d 824 [1990]).


text:
    [853 NE2d 222, 819 NYS2d 853]
    The People of the State of New York, Respondent, v Carlos Ramos, Appellant.
    Decided June 13, 2006

      APPEARANCES OF COUNSEL

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

      Charles J. Hynes, District Attorney, Brooklyn (Joyce Slevin of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant’s waiver of his right to appeal was effective. Even if there were any ambiguity in the sentencing court’s colloquy, defendant executed a detailed written waiver, distinguishing this case from People v Billingslea (6 NY3d 248, 257 [2006]), in which the sentencing court’s colloquy was “accompanied by nothing other than defendant’s one-word response to the question whether she understood the conditions of her plea.” In this case, defendant’s written waiver stated that defendant had the right to appeal, explained the appellate process and confirmed that defense counsel fully advised him of the right to take an appeal under the laws of the State of New York. The record therefore establishes that defendant knowingly, intelligently and voluntarily waived his right to appeal.

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

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


text:
    Akber Aziz, Appellant, v Gulzar Aziz, Respondent.
    Submitted April 24, 2006;
    decided June 13, 2006
   Motion, insofar as it seeks leave to appeal as against respondent Aziz, dismissed as untimely (see CPLR 5513 [b]); motion, insofar as it seeks leave to appeal as against the law guardian, denied.


text:
    Stephen Babcock, Appellant, v State University Agricultural & Technical College at Alfred, Respondent.
    Submitted May 1, 2006;
    decided June 13, 2006
   Motion for leave to appeal dismissed upon the ground that movant is not a party aggrieved (see CPLR 5511).


text:
    Rayon Baker, Appellant, v Trinity-Pawling School, Respondent, et al., Defendant. Trinity-Pawling School, Third-Party Plaintiff, v Hotchkiss School, Third-Party Defendant-Respondent.
    Submitted May 3, 2005;
    decided June 13, 2006
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that denied appellant’s 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, insofar as it seeks leave to appeal from that part of the Appellate Division order that dismissed the third-party complaint, dismissed upon the ground that appellant is not a party aggrieved (see CPLR 5511); motion for leave to appeal otherwise denied.


text:
    In the Matter of Irving Bartholomay, Respondent, v Mary Bartholomay, Appellant.
    Submitted May 8, 2006;
    decided June 13, 2006
   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:
    Patricia J. Curto, Appellant, v New York State College of Veterinary Medicine at Cornell et al., Respondents. (And Another Similarly Captioned Action.)
    Submitted May 10, 2006;
    decided June 13, 2006
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the actions within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Colleen Rich, Respondent, v North American Specialty Insurance Company, Appellant.
    Submitted May 10, 2006;
    decided June 13, 2006
   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:
    [853 NE2d 231, 819 NYS2d 861]
    John E. Rugieri et al., as Guardians of Joseph Rugieri, Respondents, v Marie Bannister et al., Appellants, et al., Defendant.
    Decided June 29, 2006

      APPEARANCES OF COUNSEL

      Carol R. Finocchio, New York City, for Marie Bannister and another, appellants.

      O’Connor, O’Connor, Hintz & Deveney, LLP, Melville (Michael T. Reagan of counsel), for Leann Cheek, appellant.

      Seligson, Rothman & Rothman, New York City (Martin S. Rothman of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs to defendant Cheek against the plaintiffs, by granting defendant Cheek’s motion for summary judgment dismissing the complaint as against her and, as modified, affirmed, with costs to the plaintiffs against the Bannister defendants. The certified question should be answered in the negative.

Because plaintiffs did not establish a triable issue of fact regarding defendant Leann Cheek’s alleged negligence, the Appellate Division erred in reversing Supreme Court’s grant of Cheek’s motion for summary judgment. The Appellate Division, however, did not abuse its discretion in vacating the judgments and reinstating the complaint as against the Bannister defendants since plaintiffs proffered a reasonable excuse for their default and facts indicating a meritorious cause of action (see CPLR 5015 [a] [1]; Alliance Prop. Mgt. & Dev. v Andrews Ave. Equities, 70 NY2d 831, 832-833 [1987]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). On remittal to Supreme Court, the parties are left to litigate the motion pending at the time the default judgment was entered.

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

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


text:
    [853 NE2d 223, 819 NYS2d 854]
    The People of the State of New York, Respondent, v Tammi L. Van Deusen, Appellant.
    Argued June 8, 2006;
    decided June 29, 2006

      APPEARANCES OF COUNSEL

      Paul J. Connolly, Delmar, for appellant.

      Joseph A. McBride, District Attorney, Norwich, and New York Prosecutors Training Institute, Albany (John E. Maney of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, defendant’s plea vacated and the case remitted to County Court for further proceedings on the indictment.

Defendant Tammi L. Van Deusen was indicted for second-degree felony murder, first-degree burglary, second-degree burglary, first-degree robbery, first-degree criminal use of a firearm and fourth-degree conspiracy in connection with a home invasion in Norwich, Chenango County, in the early morning hours of July 17, 2000, during which a victim was killed by a shotgun blast to the chest. Defendant pleaded guilty to first-degree robbery, in exchange for a determinate sentence of not less than five or more than 15 years in prison.

Prior to sentencing, defendant moved to withdraw her guilty plea, arguing that it was not voluntary, knowing and intelligent because County Court had failed to tell her that she was subject to mandatory postrelease supervision after her release from prison. County Court denied the motion, and sentenced defendant to a term of eight years’ imprisonment plus five years of postrelease supervision. On appeal, the Appellate Division affirmed, concluding that “[defendant was not deprived of the benefit of her plea bargain . . . inasmuch as she agreed to a maximum period of imprisonment of 15 years and the eight-year prison term actually imposed, together with the five-year period of postrelease supervision, exposed her to a shorter total period of punishment” (19 AD3d 747, 748 [3d Dept 2005]). A Judge of this Court granted defendant leave to appeal.

In People v Catu (4 NY3d 242 [2005]), we held that postrelease supervision is a direct consequence of conviction of a violent felony offense for which a determinate sentence is imposed. “Because a defendant pleading guilty to a determinate sentence must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action, the failure of a court to advise of postrelease supervision requires reversal of the conviction” (id. at 245). This was so even though the defendant did hot establish that he would have declined to plead guilty if he had known about the postrelease supervision.

While defendant’s sentence here, including postrelease supervision, was actually less than the maximum potential period of incarceration that she agreed to serve, this case is still indistinguishable from Catu. At the time defendant pleaded guilty, she did not possess all the information necessary for an informed choice among different possible courses of action because she was not told that she would be subject to mandatory postrelease supervision as a consequence of her guilty plea. Accordingly, defendant’s decision to plead guilty cannot be said to have been knowing, voluntary and intelligent.

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

Order reversed, etc.


text:
    Catholic Charities of the Diocese of Albany et al., Appellants, v Gregory V. Serio, as Superintendent of Insurance, Respondent.
    Submitted June 19, 2006;
    decided June 29, 2006
   Motion by American Jewish Congress et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Catholic Charities of the Diocese of Albany et al., Appellants, v Gregory V. Serio, as Superintendent of Insurance, Respondent.
    Submitted June 19, 2006;
    decided June 29, 2006
   Motion by New York Civil Liberties Union et al. for leave to file a brief amici curiae on the appeal herein granted. Two copies of the brief may be served and 24 copies filed within 10 days.


text:
    Catholic Charities of the Diocese of Albany et al., Appellants, v Gregory V. Serio, as Superintendent of Insurance, Respondent.
    Submitted June 19, 2006;
    decided June 29, 2006
   Motion by American Jewish Committee et al. for leave to file a brief amici curiae on the appeal herein granted. Two copies of the brief may be served and 24 copies filed within 10 days.


text:
    Catholic Charities of the Diocese of Albany et al., Appellants, v Gregory V. Serio, as Superintendent of Insurance, Respondent.
    Submitted June 19, 2006;
    decided June 29, 2006
   Motion by New York District of the American College of Obstetricians and Gynecologists et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Catholic Charities of the Diocese of Albany et al., Appellants, v Gregory V. Serio, as Superintendent of Insurance, Respondent.
    Submitted June 26, 2006;
    decided June 29, 2006
   Motion by Becket Fund for Religious Liberty 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 Colavito, Appellant, v New York Organ Donor Network, Inc., et al., Respondents.
    Submitted June 26, 2006;
    decided June 29, 2006
   Motion by American Association of Tissue Banks et al. for leave to file a brief amici curiae on consideration of the certified question herein granted and the proposed brief is accepted as filed.


text:
    In the Matter of E.S., Respondent, v P.D., Appellant.
    Submitted May 22, 2006;
    decided June 29, 2006
   Motion for leave to appeal denied upon the ground that an appeal lies as of right (see CLPR 5601 [b] [1]).


text:
    In the Matter of Robert Gorghan, Appellant, v Patricia DeAngelis, as District Attorney of Rensselaer County, et al., Respondents.
    Submitted June 19, 2006;
    decided June 29, 2006
   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:
    Eric Parker, Appellant, v Mobil Oil Corporation et al., Respondents, and Island Transportation Corporation et al., Defendants and Third-Party Plaintiffs-Respondents. Exxon Mobil Corporation et al., Third-Party Defendants-Respondents.
    Submitted June 26, 2006;
    decided June 29, 2006
   Motion by the Coalition for Litigation Justice, Inc. for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Eric Parker, Appellant, v Mobil Oil Corporation et al., Respondents, and Island Transportation Corporation, et al., Defendants and Third-Party Plaintiffs-Respondents. Exxon Mobil Corporation et al., Third-Party Defendants-Respondents.
    Submitted June 26, 2006;
    decided June 29, 2006
   Motion by Chamber of Commerce of the United States of America for leave to file a brief amicus curiae on the appeal herein granted. Two copies of the brief may be served and 24 copies filed within 10 days.


text:
    Eric Parker, Appellant, v Mobil Oil Corporation et al., Respondents, and Island Transportation Corporation et al., Defendants and Third-Party Plaintiffs-Respondents. Exxon Mobil Corporation et al., Third-Party Defendants-Respondents.
    Submitted June 26, 2006;
    decided June 29, 2006
   Motion by City of New York et al. for leave to file a brief amici curiae on the appeal herein granted. Two copies of the brief may be served and 24 copies filed within 10 days.


text:
    The People of the State of New York, Respondent, v Brandon J. Bolling, Appellant.
    Submitted June 12, 2006;
    decided June 29, 2006
   Motion for assignment of counsel granted and Edward J. Nowak, Esq., Monroe County Public Defender, 10 N. Fitzhugh Street, Rochester, New York 14614 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Dennis Gillian, Appellant.
    Submitted June 26, 2006;
    decided June 29, 2006
   Motion for assignment of counsel granted and Steven A. Feldman, care of Feldman & Feldman, 626 EAB Plaza — West Tower, 6th Floor, Uniondale, New York 11556, assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Appellant, v Davor Gomcin, Respondent.
    Submitted April 24, 2006;
    decided June 29, 2006
   Motion to vacate this Court’s June 20, 2000 dismissal order (95 NY2d 821 [2000]) granted and appeal reinstated.


text:
    In the Matter of Rodney D., a Person Alleged to be a Juvenile Delinquent, Appellant; Presentment Agency, Respondent.
    Submitted May 22, 2006;
    decided June 29, 2006
   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 David Russell, Appellant, v Donald Selsky, as Director of Special Housing and Inmate Disciplinary Programs, et al., Respondents.
    Submitted April 10, 2006;
    decided June 29, 2006
   Motion for leave to appeal dismissed upon the ground that appellant has failed to demonstrate timeliness as required by section 500.22 (b) (2) of the Rules of Practice of the Court of Appeals (22 NYCRR 500.22 [b] [2]). Motion for poor person relief dismissed as academic.


text:
    In the Matter of Shondel J., Respondent, v Mark D., Appellant.
    Submitted June 19, 2006;
    decided June 29, 2006
   Motion for reargument granted and, upon reargument, motion by US Citizens against Paternity Fraud et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief may be served and 24 copies filed within two days.


text:
    Lena C. Tedesco, Individually and as Executrix of Frank J. Tedesco, Deceased, Plaintiff, v A.P. Green Industries, Inc., et al., Defendants, and Insulation Distributors, Inc., Respondent and Third-Party Plaintiff-Respondent. E.I. du Pont de Nemours and Company, Third-Party Defendant-Appellant.
    Submitted May 8, 2006;
    decided June 29, 2006
   Motion to dismiss the appeal herein as moot denied.


text:
    Welsbach Electric Corp., Respondent, v MasTec North America, Inc., Appellant.
    Submitted June 19, 2006;
    decided June 29, 2006
   Motion by American Subcontractors Association for leave to . file a brief amicus curiae on the appeal herein granted. Two copies of the brief may be served and 24 copies filed within 10 days.


text:
    [853 NE2d 227, 819 NYS2d 858]
    The People of the State of New York, Respondent, v Tyrone Atkinson, Appellant.
    Argued June 7, 2006;
    decided July 5, 2006

      APPEARANCES OF COUNSEL

      Lynn W.L. Fahey, New York City, and Melissa S. Horlick, for appellant.

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

Memorandum.

The order of the Appellate Division should be modified by reducing defendant’s conviction of depraved indifference murder (Penal Law § 125.25 [2]) to manslaughter in the second degree (Penal Law § 125.15 [1]), and by remitting the case to Supreme Court for resentencing and, as so modified, affirmed. Defendant did not commit depraved indifference murder within the meaning of the statute (see People v Payne, 3 NY3d 266 [2004]).

We reject the contention that defendant forfeited his right to challenge the sufficiency of his conviction for depraved indifference murder by requesting that the jury be charged on the lesser-included offense of manslaughter in the second degree, which requires a finding of recklessness. “Depraved indifference” is an additional core statutory requirement of depraved indifference murder, beyond mere recklessness and risk (see People v Suarez, 6 NY3d 202, 214-215 [2005]).

In our corrective action here, however, dismissal of the indictment is neither required nor warranted. The facts are sufficiently different from Payne to enable a jury to reasonably conclude that defendant’s actions, although not depraved, were reckless. Among other evidence, testimony at trial could have led a rational jury to infer that the victim moved into a shot that was intended only to scare him.

Accordingly, we need not reach the question of whether by requesting the lesser-included charge of manslaughter in the second degree, defendant forfeited his present claim that the evidence is consistent only with intentional murder.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Read and R.S. Smith concur; Judge Graffeo concurs in result on constraint of People v Suarez (6 NY3d 202 [2005]).

Order modified by reducing defendant’s conviction of murder in the second degree to manslaughter in the second degree and remitting to Supreme Court, Queens County, for resentencing and, as so modified, affirmed, in a memorandum.


author: Graefeo, J.

text:
    [853 NE2d 224, 819 NYS2d 855]
    The People of the State of New York, Respondent, v Gina Mancini, Appellant.
    Argued June 7, 2006;
    decided July 5, 2006

      APPEARANCES OF COUNSEL

      Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp, David C. Shopp and Barbara J. Davies of counsel), for appellant.

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

Memorandum.

The order of the Appellate Division should be modified by reducing defendant’s conviction of depraved indifference murder (Penal Law § 125.25 [2]) to manslaughter in the second degree (Penal Law § 125.15 [1]), and by remitting the case to Supreme Court for resentencing and, as so modified, affirmed. Defendant did not commit depraved indifference murder within the meaning of the statute (see People v Suarez, 6 NY3d 202, 212-214 [2005]). We disagree with the contention of our dissenting colleague that by leaving the victim to die, as here, defendant committed depraved indifference murder. That test would sweep in the vast number of homicides where the killers do not linger with their victims, awaiting aid (see id. at 209 n 3). “[[Irrespective of what the actor does or does not do after inflicting the fatal injury, depraved indifference murder is not made out unless the core statutory requirement of depraved indifference is established” (id. at 210) (emphasis added).

Graefeo, J.

(dissenting). I respectfully dissent and would hold that there was sufficient evidence to support defendant’s conviction of depraved indifference murder.

To find a defendant guilty of depraved indifference murder, the jury must determine that the defendant recklessly engaged in conduct that created a grave risk of death under circumstances evincing a depraved indifference to human life and that the defendant’s actions caused the victim’s death (see Penal Law § 125.25 [2]; People v Suarez, 6 NY3d 202, 207 [2005]). In this appeal, defendant does not dispute that the People sufficiently proved that she acted with a reckless state of mind. Instead, her challenge is limited to the sufficiency of the evidence that the murder was committed under circumstances evincing a depraved indifference to human life.

The jury was not required to credit defendant’s version of events but, assuming it did, there was sufficient evidence of depraved indifference murder. According to defendant’s trial testimony, after agreeing to a sexual encounter with a 75-year-old man for a specified sum of money and accompanying him to his home, the pair got into the shower. When the man told defendant that he would pay only half of the agreed-upon price, defendant refused to have sex with him. The man responded by grabbing defendant from behind, which led her to believe that she was about to be sexually assaulted. A struggle ensued.

Defendant testified that eventually she got out of the shower, picked up a toilet tank lid and swung the lid in the direction of the man, who had slipped and was now sitting in the tub, striking the lid on the side of the shower. Defendant claimed she swung the lid once more, hitting the man directly on the left side of his head. The medical experts at the trial opined that the blow from the tank lid rendered the victim unconscious, inflicted a major laceration to his scalp and severely fractured the skull, causing it to become depressed into his brain. The jury heard that the victim may have lived (albeit in an unconscious state) for up to an hour after being struck.

Notwithstanding the victim’s shattered skull, profuse bleeding and motionless body, defendant told the jury that she “did not think he was hurt that bad,” “thought he would need stitches but . . . [that] he would be okay” and that he would “eventually . . . get up and probably call the police himself.” This testimony, coupled with the evidence from the medical experts and defendant’s declarations that she did not intend to kill the victim, proved that defendant was utterly indifferent to the grave risk of death inherent in her actions. In addition, to the extent there was any possibility that the victim might have lived, defendant admitted that she locked the doors to the bathroom and garage, which would have impeded any emergency medical assistance from being rendered to the victim. And although defendant claimed she was interested in quickly departing the premises, she took time to wipe the blood off the toilet tank lid before undertaking a search for the victim’s car keys. Viewing these facts objectively, and in the light most favorable to the People, as we must (see People v Calabria, 3 NY3d 80, 81 [2004]), a reasonable juror could conclude that defendant created such an exceptionally high, grave risk of death, and so callously and wantonly disregarded the mortal danger she caused that the circumstances evinced a depraved indifference to the victim’s life warranting a conviction of murder rather than manslaughter (cf. People v Sanchez, 98 NY2d 373, 384 [2002]).

I recognize, of course, that a majority of this Court in People v Suarez (6 NY3d 202 [2005]) departed from the Sanchez formulation of depraved indifference murder by restricting application of Penal Law § 125.25 (2) in one-on-one killings to several categories, including abandonment of a helpless victim, and brutal and prolonged torture. Although I continue to disagree with Suarez (see id. at 219-228 [Graffeo, J., concurring in part and dissenting in part]), nevertheless, defendant’s actions in this case fit within one of the “rare circumstances” identified in Suarez (id. at 212). As the Court explained in Suarez, “when the defendant intends neither to seriously injure, nor to kill, but nevertheless abandons a helpless and vulnerable victim in circumstances where the victim is highly likely to die, the defendant’s utter callousness to the victim’s mortal plight— arising from a situation created by the defendant — properly establishes depraved indifference murder” (id.).

Here, defendant concedes that there is sufficient evidence that she did not intend to kill the victim but instead acted recklessly. It also cannot be seriously disputed that the victim’s “mortal plight” (id.) arose from defendant’s act of shattering his skull with a heavy object. As a result of defendant’s conduct, the victim was rendered “helpless and vulnerable,” and was “highly likely to die” (id.). Defendant then abandoned the victim and impeded the possibility of assistance by locking the doors to the garage and bathroom. These facts, in my view, are comparable to the scenarios presented in People v Kibhe (35 NY2d 407 [1974] [forcing an intoxicated person out of a car onto a dark, snowy road]) and People v Mills (1 NY3d 269 [2003] [pushing a 12-year-old boy into the water and, after that death-inducing conduct, abandoning him by walking away]), which were identified as classic “abandonment of a helpless victim” cases in the Suarez decision (see 6 NY3d at 212). Thus, under the reasoning of Suarez, I believe defendant’s murder conviction should be upheld.

Accordingly, the order of the Appellate Division should be affirmed.

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

Order modified by reducing defendant’s conviction of murder in the second degree to manslaughter in the second degree and remitting to Supreme Court, Erie County, for resentencing and, as so modified, affirmed, in a memorandum.

       Today’s majority decision in People v Feingold (7 NY3d 288 [2006] [decided today]), from which I have dissented, does not require a reversal in this case because defendant’s testimony and the crime scene evidence provided ample proof for the jury to conclude that defendant had an “utter disregard” for the victim’s life (id.) and thereby evinced a depravedly indifferent state of mind..


text:
    Jaimie Magee, Respondent, v County of Suffolk, Appellant, et al., Defendants.
    Submitted May 15, 2006;
    decided July 5, 2006
   Motion for leave to appeal dismissed upon the ground that appellant is not a party aggrieved.


text:
    In the Matter of Herbert Moskowitz et al., Appellants, v Lorraine Jorden, Respondent.
    Submitted May 30, 2006;
    decided July 5, 2006
   Motion by the New York City Loft Board for leave to appear amicus curiae on the motion for leave to appeal herein granted and the proposed affirmation is accepted as filed.


text:
    Paul Sperry, Appellant, v Crompton Corporation et al., Respondents, et al., Defendants.
    Submitted May 15, 2006;
    decided July 5, 2006
   Motion by the American Antitrust Institute for leave to appear amicus curiae on the motion for leave to appeal herein granted and the proposed brief is accepted as filed.


text:
    Ivey Walton et al., Appellants, v New York State Department of Correctional Services et al., Respondents.
    Submitted May 22, 2006;
    decided July 5, 2006
   Motion by the Legal Aid Society of the City of New York for leave to appear amicus curiae on the motion for leave to appeal herein granted and the proposed brief is accepted as filed.


author: R.S. Smith, J.

text:
    [854 NE2d 146, 820 NYS2d 848]
    In the Matter of New York Central Mutual Fire Insurance Company, Respondent, v Jorge Aguirre et al., Appellants.
    Argued April 27, 2006;
    decided June 13, 2006
    APPEARANCES OF COUNSEL

      Mitchell Dranow, Mineóla, for appellants.

      Cullen and Dykman LLP, Brooklyn (<Joseph Miller, Jeffrey C. Fegan and Jean-Pierre van Lent of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the petition to stay arbitration dismissed.

Jorge Aguirre and Rosa and Amanda Alzate were allegedly injured on August 4, 2002 while sitting in a car owned by F.A. Rodriguez, which was parked on Northern Boulevard in Queens, New York. Their injuries occurred when another car was struck and pushed into the rear bumper of the Rodriguez vehicle by a car operated by an unidentified hit-and-run driver.

New York Central Mutual Fire Insurance Company had issued an automobile insurance policy to Rodriguez, which included Supplementary Uninsured/Underinsured Motorists (SUM) coverage with bodily injury limits of $25,000 per person and $50,000 per accident. The policy’s SUM endorsement set forth several conditions, including the following:

“Notice and Proof of Claim. As soon as practicable, the insured or other person making claim shall give us written notice of claim under this SUM coverage.
“As soon as practicable after our written request, the insured or other person making claim shall give us written proof of claim, under oath if required, including full particulars of the nature and extent of injuries, treatment, and other details we need to determine the SUM amount payable.
“The insured and every other person making claim hereunder shall, as may reasonably be required, submit to examinations under oath by any person we name and subscribe the same. Proof of claim shall be made upon forms we furnish unless we fail to furnish such forms within 15 days after receiving notice of claim” (emphasis added).

On August 15, 2002, an attorney representing Aguirre and the Alzates sent a letter to the attention of New York Central Mutual’s “No-Fault Department” to make a claim under Rodriguez’s policy’s SUM provisions. He enclosed claimants’ completed and subscribed New York State applications for no-fault insurance benefits. On September 3, 2002, the insurer sent a letter acknowledging the three claims. This letter directed the attorney’s attention to and quoted the above-described “Notice and Proof of Claim” condition, and advised him as follows:

“New York Central Mutual is currently investigating the facts and circumstances of the [claimed] loss. We require the immediate completion and return of the enclosed Notice of Intention to Make Claim forms.
“Your failure to cooperate will jeopardize any rights which you may have under this policy for us to make Supplementary Uninsured Motorists payments” (emphasis added).

Claimants never filled out and returned the proof-of-claim forms, which asked for information about the accident and claimants’ injuries. In May 2003, however, they served a request for uninsured motorist arbitration on New York Central Mutual, which responded on June 19, 2003 with a proceeding in Supreme Court to stay arbitration. Supreme Court granted the insurer’s petition because of claimants’ failure to return the completed forms, concluding that this was a “condition precedent under the policy” for which timely disclaimer was not required. The Appellate Division affirmed on the same basis, and we granted leave to appeal. We now reverse.

As an initial matter, the policy’s requirement to fill out and return a proof-of-claim form is an exclusion or a condition of coverage, as the insurer concedes. This case is not analogous to Zappone v Home Ins. Co. (55 NY2d 131 [1982]), where there was no coverage under the contract of insurance. Accordingly, the outcome of this appeal turns on whether New York Central Mutual disclaimed liability or denied coverage “as soon as reasonably possible” within the meaning of Insurance Law § 3420 (d).

An “insurer’s failure to provide notice as soon as is reasonably possible precludes effective disclaimer, even [where] the policyholder’s own notice of the incident to its insurer is untimely” (First Fin. Ins. Co. v Jetco Contr. Corp., 1 NY3d 64, 67 [2003]). The “timeliness of an insurer’s disclaimer is measured from the point in time when the insurer first learns of the grounds for disclaimer of liability or denial of coverage” (id. at 68-69 [internal quotation marks omitted]). When “the basis for denying coverage was or should have been readily apparent before the onset of the delay [of disclaimer],” the insurer’s explanation is insufficient as a matter of law (id. at 69).

In Jeteo, we held that an insurer’s unexcused 48-day delay in notifying an insured of denial of coverage was unreasonable as a matter of law. Here, the delay was significantly longer. New York Central Mutual sent claimants a letter on September 3, 2002, directing their “immediate completion and return” of the notice-of-claim forms. The word “immediate” denotes New York Central Mutual’s expectation of receipt of the completed forms right away, or without substantial loss or interval of time after they were sent. Thus, the insurer became aware of its basis for denying coverage — that claimants had not completed and returned properly filled-out proof-of-claim forms — at a point in time significantly before June 19, 2003, when it petitioned to stay arbitration. That completed forms were never returned or that the letter did not set a precise deadline for their return does not extend the insurer’s time to disclaim or deny coverage, or excuse its delay in doing so.

R.S. Smith, J.

(dissenting). Claimants were required under the policy to send a notice to the insurance company “[a]s soon as practicable.” The Court today holds, in substance, that this requirement was nullified because the insurance company did not, as soon as possible after as soon as practicable, send claimants a notice that they had failed to send a notice. The Catch-22 quality of this holding is too much for me, and I dissent.

Insurance Law § 3420 (d) requires an insurance company to give written notice of a disclaimer of coverage “as soon as is reasonably possible.” I would hold that, where the disclaimer is based on a claimant’s failure to submit a document in timely fashion, and there is no fixed deadline for the claimant’s submission, the time to disclaim does not start running at least until the belated submission arrives. To hold otherwise, it seems to me, places an unreasonable and unnecessary burden on the insurance company.

New York Central Mutual acted reasonably here. It demanded, as was its right, a proof of claim (or “Notice of Intention to Make Claim”) form, and then waited to see when and if claimants sent the form in. New York Central Mutual no doubt assumed, quite appropriately, that until the form arrived it was in no position to judge whether the claimants had submitted the form “as soon as practicable.” The insurance company could also reasonably assume that, if it never received the form, it could forget about the claim.

The form was never submitted. This was not an insignificant oversight; a proof of claim form enables an insurance company to investigate a claim and to decide whether it is legitimate or not. To permit claimants who have never submitted proof of their claim to recover is to open the door to claims that are spurious or fraudulent. Under today’s holding, however, insurance companies cannot use the failure to submit proof of claim as a defense unless they themselves do what the claimant is supposed to do — send a notice before too much time has gone by. I do not think it makes sense to impose this requirement on insurance companies, and I do not think the statute requires it.

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

Order reversed, etc.

       The dissent complains that there is a Catch-22 quality to the majority’s position. But there is also a certain circularity to the insurer’s argument that it could not disclaim as soon as reasonably possible until after it received the filled out proof-of-claim forms because it could not evaluate whether claimants had timely provided the facts until the forms were reviewed and still does not know if the facts claimants might have provided would have been timely or not, because claimants never returned the forms. The simple answer to this conundrum, of course, is for the insurer to set a deadline for return of a proof-of-claim form. And, of course, if the insurer suspects fraud in this case, it can still fight the claim in the arbitration on this basis.


text:
    [853 NE2d 1105, 820 NYS2d 537]
    The People of the State of New York, Respondent, v Joseph Swinton, Appellant. The People of the State of New York, Respondent, v Silva Swinton, Appellant.
    Decided July 6, 2006

      APPEARANCES OF COUNSEL

      Appellate Advocates, New York City CLynn W.L. Fahey of counsel), for Joseph Swinton, appellant.

      Kevin Costello, Flushing, for Silva Swinton, appellant.

      Richard A. Brown, District Attorney, Kew Gardens (.Linda Cantoni of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by reducing defendants’ convictions for assault in the first degree to assault in the third degree and remitting to Supreme Court for resentencing and, as so modified, affirmed. Viewing the evidence in the light most favorable to the People, the evidence is legally insufficient to prove beyond a reasonable doubt that defendants acted with the culpable mental state of depraved indifference (People v Feingold, 7 NY3d 288 [2006]). The evidence is legally sufficient, however, to support the jury’s determination that defendants acted recklessly.

Judges G.B. Smith, Rosenblatt, Read and R.S. Smith concur in memorandum; Chief Judge Kaye and Judges Ciparick and Graffeo concur in result on constraint of People v Feingold (7 NY3d 288 [2006]).

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


text:
    Bank of New York, Petitioner, v Norilsk Nickel et al., Respondents, and Monter Joint Stock Company, Appellant.
    Submitted June 19, 2006;
    decided July 6, 2006
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that simultaneous appeals do not lie to the Appellate Division and the Court of Appeals, unless within 20 days appellant, if it be so advised, serves upon all parties and files in the Court of Appeals a notice that it has abandoned its appeal to the Appellate Division and stipulates for the withdrawal of that appeal (see Parker v Rogerson, 35 NY2d 751, 753-754 [1974]).


text:
    In the Matter of Keith Gadson, Appellant, v Dennis J. Breslin et al., Respondents.
    Submitted May 30, 2006;
    decided July 6, 2006
   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:
    Thomas P. Milton, Appellant, v 305/72 Owners Corp., Respondent.
    Submitted May 8, 2006;
    decided July 6, 2006
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument or leave to appeal to the Court of Appeals, 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:
    NYCTL 1997-1 Trust, Respondent, v Gerard T. Goonan, Appellant, et al., Defendants.
    Submitted June 12, 2006;
    decided July 6, 2006
   Motion, insofar as it seeks leave to appeal from the March 2006 Appellate Division order, dismissed as untimely {see CPLR 5513 [b]); motion, insofar as it seeks leave to appeal from the April 2006 Appellate Division order denying appellant’s motion for reargument, dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution.


text:
    Eric Parker, Appellant, v Mobil Oil Corporation et al., Respondents, and Island Transportation Corporation et al., Third-Party Plaintiffs-Respondents. Exxon Mobil Corporation et al., Third-Party Defendants-Respondents.
    Submitted June 26, 2006;
    decided July 6, 2006
   Motion by Product Liability Advisory Council for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    The People of the State of New York ex rel. Kenny Carter, Appellant, v State of New York, Respondent.
    Submitted May 30, 2006;
    decided July 6, 2006
   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 Moshe Piller, Appellant, et al., Petitioners, v Shaun Donovan et al., Respondents.
    Submitted June 19, 2006;
    decided July 6, 2006
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, First Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).


text:
    David Policano, Respondent, v Victor T. Herbert, Appellant.
    Decided July 6, 2006
   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 G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith.


text:
    In the Matter of Professional Staff Congress-City University of New York, Respondent, v New York State Public Employment Relations Board et al., Appellants.
    Submitted June 26, 2006;
    decided July 6, 2006
   Motion to dismiss the appeal herein as moot denied.


text:
    In the Matter of Professional Staff Congress-City University of New York, Respondent, v New York State Public Employment Relations Board et al., Appellants.
    Submitted June 26, 2006;
    decided July 6, 2006
   Motion by New York State United Teachers 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 Professional Staff Congress-City University of New York, Respondent, v New York State Public Employment Relations Board et al., Appellants.
    Submitted June 26, 2006;
    decided July 6, 2006
   Motion by Municipal Labor Committee for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Riverside Capital Advisors, Inc., Plaintiff, 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 May 22, 2006;
    decided July 6, 2006
   Motion by First Secured Capital Corporation, the Thomas B. Donovan Family Trust, Thomas B. Donovan and Pamela Donovan for leave to appeal dismissed upon the ground that the order sought to he appealed from does not finally determine the action within the meaning of the Constitution.


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 May 22, 2006;
    decided July 6, 2006
   Motion by Riverside Capital Advisors, Inc., First Secured Capital Corporation, the Thomas B. Donovan Family Trust, Thomas B. Donovan and Pamela Donovan 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:
    Riverside Capital Advisors, Inc., Respondent, and Winchester Global Trust Company Limited, Appellant, v First Secured Capital Corp. et al., Respondents, et al., Defendants. Thomas B. Donovan et al., Nonparty Respondents.
    Submitted May 22, 2006;
    decided July 6, 2006
   On the Court’s own motion, appeal by Winchester Global Trust Company Limited dismissed, without costs, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution; motion by Winchester Global Trust Company Limited 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 Sheena D. and Others, Infants. Niagara County Department of Social Services, Respondent; Darwin F., Appellant.
    Submitted May 8, 2006;
    decided July 6, 2006
   Motion for leave to appeal granted. Motion for assignment of counsel granted and Alan P. Reed, Esq., 20 Gorham Street, Canandaigua, New York 14424 assigned as counsel to the appellant on the appeal herein.


text:
    State of New York ex rel. Stephen J. Harkavy on Behalf of John Does 1 through 12, Appellant, v Eileen Consilvio, as Executive Director of Manhattan Psychiatric Center and Kirby Forensic Psychiatric Center, Respondent.
    Submitted June 26, 2006;
    decided July 6, 2006
   Motion to enlarge the record on appeal granted on consent.


text:
    John Whitfield, Appellant, v State of New York, Respondent.
    Submitted May 8, 2006;
    decided July 6, 2006
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    John Whitfield, Appellant, v State of New York, Respondent.
    Submitted May 15, 2006;
    decided July 6, 2006
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.