author: Stein, J.

text:
    [64 NE3d 957, 41 NYS3d 728]
    The People of the State of New York, Respondent, v Ronel Joseph, Appellant.
    Argued September 14, 2016;
    decided October 25, 2016

      APPEARANCES OF COUNSEL

      Richard M. Greenberg, Office of the Appellate Defender, New York City (.Eunice C. Lee of counsel), for appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City {Diane N. Princ and Christopher P. Marinetti of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by vacating the conviction on the count of burglary in the second degree, dismissing that count in the indictment, and remitting to Supreme Court for resentencing, and as so modified, affirmed.

On the evening of June 28, 2010, defendant entered the basement of the Greenleaf Deli in Manhattan. The deli was located on the ground floor of a seven-story building, with six floors of residential apartments above it. The basement, which was only accessible through two cellar doors located on the public sidewalk adjacent to the deli, was used to store deli merchandise. There was no access from the basement to any part of the residential units of the building, or to the deli itself. The apartment residents did not have access to the basement and only deli employees were permitted to enter the basement. An employee observed defendant on the deli’s surveillance monitor enter the open doors to the deli basement and walk around the basement with a flashlight. The employee went outside, closed and locked the basement doors and called 911. The police arrived, asked defendant to climb out of the basement, and, after a struggle, arrested him.

Defendant was charged, by indictment, with one count each of burglary in the second degree (Penal Law § 140.25 [2]), burglary in the third degree (Penal Law § 140.20), resisting arrest (Penal Law § 205.30) and attempted escape in the second degree (Penal Law §§ 110.00, 205.10 [2]). At trial, at the close of the People’s case, and again after defendant testified, defense counsel moved to dismiss the burglary charges, arguing, among other things, that the deli basement was not a “dwelling” for purposes of second-degree burglary because there was no testimony that one could get into the building or into the deli from the basement. The trial court denied the motions. A jury convicted defendant on all charges. He was sentenced as a second violent felony offender to an aggregate prison term of seven years to be followed by five years of postrelease supervision.

A majority of the Appellate Division affirmed, rejecting defendant’s argument that his conviction for second-degree burglary should be vacated (124 AD3d 437 [2015]). The majority relied on this Court’s decision in People v McCray (23 NY3d 621 [2014]), where we reaffirmed the common-law rule established in Quinn v People (71 NY 561 [1878]):

“ [I] f a building contains a dwelling, a burglary committed in any part of that building is the burglary of a dwelling; but an exception exists where the building is large and the crime is committed in a place so remote and inaccessible from the living quarters that the special dangers inherent in the burglary of a dwelling do not exist” (23 NY3d at 624).

The majority rejected defendant’s argument that the exception to the general rule applied, reasoning that although the inaccessibility requirement appeared to have been met, the exception was inapplicable because the building was not large. The dissent concluded that the exception applied and that there had not been a burglary of a dwelling because the basement was “entirely sealed off and inaccessible from the residences above” (124 AD3d at 440-441). The dissent disagreed with the majority that the exception recognized in McCray only applied to “large” buildings, and instead, concluded that, “[w]hile a building’s size may inform the determination as to whether the residential elements were accessible, size per se is not a dispositive factor” (id. at 441).

Burglary in the third degree is committed when a person “knowingly enters or remains unlawfully in a building with intent to commit a crime therein” (Penal Law § 140.20). Penal Law § 140.25 (2) elevates third-degree burglary to second-degree burglary when “[t]he building is a dwelling.” A dwelling is “a building which is usually occupied by a person lodging therein at night” (Penal Law § 140.00 [3]). “Where a building consists of two or more units separately secured or occupied, each unit shall be deemed both a separate building in itself and a part of the main building” (Penal Law § 140.00 [2]). This Court explained in People v Quattlebaum (91 NY2d 744 [1998]) that the increased penalty for burglary of a dwelling was designed to prevent “midnight terror” and the “danger to human life, growing out of the attempt to defend property from depredation” (91 NY2d at 747, quoting Quinn). Of note, in 1981, the legislature eliminated any nighttime element for burglary of a dwelling (L 1981, ch 361). In McCray, this Court pointed out that a “burglary of a dwelling is a more serious crime than other burglaries [because] an intrusion into a home, or an overnight lodging, is both more frightening and more likely to end in violence” (23 NY3d at 627). “[T]hese dangers are created in significant degree when the crime is committed fin close contiguity’ with a ‘place of repose’ even though the place of the burglary and the sleeping quarters are not instantly accessible to each other” (id. at 627, quoting Quinn). But this Court observed in McCray that the legislature had not authorized “a conviction for burglary of a dwelling where the burglar neither comes nor readily can come near to anyone’s living quarters” (.McCray at 628). In this case, given the isolation of the basement itself from the rest of the building, as well as the noncontiguous relationship of the basement to the residential units of the building, defendant did not come, nor could he have readily come, near to the residences.

In McCray, where the burglaries had occurred in a hotel and connected museum, we noted that in large buildings, situations can arise in which applying the general rule—that burglary of a partly residential building is burglary of a dwelling even if the burglar enters only the nonresidential part— does not make sense. However, contrary to the People’s argument, McCray did not impose a requirement that a building must be “large” in order for the exception to apply. The size of the building may be a factor when considering whether the residential units of the building are remote and inaccessible, but a building being a “large” size, especially given the subjective nature of the word “large,” is not a dispositive factor.

Under the narrow circumstances of this case, application of the general rule as to what constitutes a dwelling in a mixed residential and commercial building within the meaning of Penal Law § 140.00 (2) is not warranted. Defendant, from a public sidewalk, entered the open cellar doors into a basement that was both entirely disconnected from the building and completely inaccessible to the residences in that building. The basement was not contiguous to any residential units. Notably, in Quinn, where this Court upheld the burglary conviction although there was no internal access between the shop which the burglar entered and the living quarters in the building, there was a yard accessible from the shop, and the living quarters could be reached by going into the yard and then up stairs (71 NY at 565). Thus, although there was no “internal communication” {id. at 573) between the store and the living quarters, Quinn’s act of breaking into the store was “likely to cause alarm and to lead to personal violence and so endanger human life” {id.). In contrast, here, the deli basement was both inaccessible to, and remote from, the residential apartments. It was inaccessible because defendant could not go anywhere into the building from the basement. He could not reach the deli or the apartments. All that he could reach from the basement was the public sidewalk. The basement was remote given that it was not used by the residents for any purposes and that there was no proof of any relationship between that space and the residents. In sum, there was no “close contiguity” {Quinn at 567) between the basement and the dwellings. Under these facts, “the special dangers inherent in the burglary of a dwelling do not exist” {McCray at 624).

Upon consideration of the evidence in this case, we conclude that the evidence was legally insufficient to support defendant’s conviction of burglary in the second degree. Defendant’s further contention that the evidence was legally insufficient to support his conviction for burglary in the third degree is without merit.

Stein, J.

(dissenting). I would affirm defendant’s conviction for burglary in the second degree. The basement that defendant illegally entered was part of a dwelling and, although the residential portions of the building were inaccessible from the basement, they were not remote. Thus, the judicially-created exception to Penal Law § 140.00 (2) is inapplicable here, and the statutory definition of a dwelling should prevail.

A person commits burglary in the second degree when he or she “knowingly enters or remains unlawfully in a building with intent to commit a crime therein” and “[t]he building is a dwelling” (Penal Law § 140.25 [2]). The principal element in dispute in the instant case is whether the basement at issue is a dwelling. The statute defines a dwelling as “a building which is usually occupied by a person lodging therein at night” (Penal Law § 140.00 [3]). The statute also provides that “[w]here a building consists of two or more units separately secured or occupied, each unit shall be deemed both a separate building in itself and a part of the main building” (Penal Law § 140.00 [2]). As noted by the majority, the building at issue here contains a basement, a deli on the first floor, and six floors of separately-occupied residential apartments above the deli. The apartments are clearly dwellings. Therefore, strictly applying the statute to the facts here, every part of the building—including the basement—is considered part of a dwelling (see Penal Law § 140.00 [2], [3]).

In 1878, this Court explained that the statutory definition of a dwelling, as related to the crime of burglary, differed from the common-law definition because the statute did not include outbuildings such as barns within the meaning of dwelling, even if they were enclosed within the same fenced yard as a residence (see Quinn v People, 71 NY 561, 570-572 [1878]). However, the statutory definition of a dwelling included all rooms “under the same roof and within the same four walls” as sleeping quarters, even if those other rooms were used for business purposes (id. at 573). When interpreting the burglary statute, we divined the legislature’s intent to include such-rooms as part of a dwelling—even if there was no internal connection to the residential portion of the building—as being premised on the likelihood that breaking into any part of the same structure may be likely to “rouse the occupant of the sleeping-room, and draw him forth to an encounter, and liability to death or injury, in defense of his goods” (id. at 572). Thus, we explained that the

“essence of the crime of burglary at common law is the midnight terror excited, and the liability created by it of danger to human life, growing out of the attempt to defend property from depredation. It is plain that both of these may arise, when the place entered is in close contiguity with the place of the owner’s repose, though the former has no relation to the latter by reason of domestic use or adaptation” (id. at 567).

Under the facts of Quinn, breaking into a shop on the first floor of a building constituted burglary of a dwelling because the second floor contained sleeping quarters, even though there was no internal communication between the two floors and the occupants of the second floor had to go outside, descend an external staircase, and enter an exterior door to reach the first floor shop. Although we found burglary of a dwelling in that case, in an effort to “ward off misapprehension” or a fear that the statutory definition could be applied too broadly, the Court acknowledged that there may be situations in which, for purposes of the crime of burglary, the residential portion of a building that also contained multiple businesses may be deemed severed from the business portion due to the large size of the building and the lack of any internal connection between the living quarters and the businesses (see id. at 573).

This Court did not have occasion to address this judicially-created exception for the next 136 years. However, two years ago, in People v McCray (23 NY3d 621 [2014]), we reaffirmed both the general rule and the exception established in Quinn, holding that

“[generally, if a building contains a dwelling, a burglary committed in any part of that building is the burglary of a dwelling; but an exception exists where the building is large and the crime is committed in a place so remote and inaccessible from the living quarters that the special dangers inherent in the burglary of a dwelling do not exist” (McCray, 23 NY3d at 624).

Despite the passage of many years since our decision in Quinn, we reiterated in McCray the enduring purpose of treating burglary of a dwelling as a more serious crime, specifically that “an intrusion into a home ... is both more frightening and more likely to end in violence” (id. at 627; see People v Barney, 99 NY2d 367, 370 [2003]). We further noted that “these dangers are created in significant degree when the crime is committed ‘in close contiguity’ with a ‘place of repose’ even though the place of the burglary and the sleeping quarters are not instantly accessible to each other” (McCray, 23 NY3d at 627). As an example, we described a store owner in his bedroom becoming aware of a burglar in the shop downstairs as a situation raising the special dangers inherent in the burglary of a dwelling that justify treating the crime as more serious than the burglary of a building in which no one lives (see id.).

In McCray, we also accepted the continued viability of the exception created in Quinn, which placed a “common sense limitation on a literal reading of a statute” for buildings where “applying the four walls and a roof rule would stretch the statute beyond its purpose” {id. at 628). To illustrate the exception, we asked the reader to “imagine a skyscraper” containing mainly stores and offices, “with a few apartments remote and inaccessible from the commercial space” (id. at 627 [emphasis added]). We recognized that, in such a situation, breaking into one of the commercial spaces may create virtually no risk that the apartment residents would even be conscious of the burglar’s presence, such that the purposes of the statute would not be served and its application would be unfair (see id.).

The actual building at issue in McCray was a large, modern Manhattan building containing numerous businesses, including Madame Tussaud’s Wax Museum and a Hilton Hotel. Because the hotel constituted a dwelling, we concluded that the defendant could be guilty of two counts of burglarizing a dwelling where he broke into a locker room for hotel employees, and into the museum. We reasoned that, even though these areas were several floors away from guest rooms where people slept, an internal stairwell provided access between the floors on which the guest rooms, the locker room, and the museum were located (see id. at 630). Significantly, to reach the locker room, the burglar had entered the stairwell by passing through the 16th floor, which was adjacent to the 17th floor where guest rooms were located. We had “little hesitation in concluding that the risks inherent in burglary of a dwelling—the ‘night terror’ and the danger of violence that we spoke of in Quinn— are present when a burglar comes this near to rooms in which people are sleeping” (id.). Although it was a closer call on the burglary of the museum, which was much farther from the guest rooms, we found that it constituted burglary of a dwelling because the burglar likely gained access through the aforementioned stairwell (see id.). Though the floors of the museum that the defendant entered were not physically close to the hotel’s guest rooms, we noted that proximity and ease of access were “at least equally important” factors (id.). Thus, this Court clearly stated that, for the exception to apply, the burglarized portion of the building must be both remote and inaccessible to the sleeping quarters (see id. at 624, 630).

Despite use of the word “large” in both Quinn and McCray to describe buildings subject to the exception, I agree with the majority that a building’s size, per se, is not dispositive but, instead, constitutes a factor to consider when determining whether the residential portion of the building is so remote and inaccessible as to eliminate the dangers inherent in burglaries of dwellings. However, I cannot agree with the majority’s conclusion that applying the general rule is unwarranted here, such that the exception applies and the basement cannot be considered a dwelling under Quinn and McCray.

In my view, the majority errs in overlooking the fact that what our cases call “the general rule” is based on a literal reading of the statute itself. As a result, the majority too broadly applies an exception that this Court created; such an exception should be narrowly applied because it circumvents the plain language used by the legislature (see e.g. Matter of Gomez v Stout, 13 NY3d 182, 187 [2009]; Solow Mgt. Corp. v Tanger, 10 NY3d 326, 330-331 [2008]). Although the exception to the statutory language was judicially created many years ago, this Court has only addressed it twice (including the case in which it was created). Both times, we found that it was inapplicable. Until today, neither this Court nor any other appellate court in this state has ever found that' the exception to the statute applied to the facts of any particular case presented to it.

As noted, McCray made clear that the exception requires the burglarized portion of the building to be both “remote and inaccessible” to the residential portion (McCray, 23 NY3d at 624 [emphasis added]). Indeed, we stated that proximity and ease of access were each important factors (see id. at 630). In McCray, we did not apply the exception because, although the sleeping quarters were fairly remote from the museum, they were accessible by a common stairwell (see id.). We did not apply the exception in Quinn because, although the living quarters were inaccessible due to the lack of an internal connection, they were one floor above the burglarized shop, rendering them not remote (see Quinn, 71 NY at 565). Hence, in each case in which we have considered the exception, we declined to apply it where only one of the two criteria was present.

Here, it is undisputed that the apartments are not directly accessible from the basement. The point of contention is the remoteness factor. The criteria of remoteness addresses distance or proximity {see Black’s Law Dictionary 1487 [10th ed 2014], remote [“(f)ar removed or separated in time, space, or relation”]). The majority concludes that the basement was remote because the residents do not use it and have no “relationship” to that area (majority mem at 1007). That conclusion conflates remoteness with inaccessibility and fails to separately consider the remoteness or proximity of the two portions of the building, as required by our precedent. It also relies on the use to which the nonresidential area is put, which is not a factor in itself and is distinct from the question of remoteness.

Though lacking accessibility, the basement is not remote from the apartments. The basement is a mere two stories below the nearest apartment. In each of our prior cases, we found that a distance of one story was not remote (see McCray, 23 NY3d at 630; Quinn, 71 NY at 565-566, 573). We have never held that direct contiguity is required to preclude remoteness, and I cannot conclude that one additional story tips the balance. Moreover, the entrance doors to the basement are on the street level, just one story below the nearest apartment. A tenant in a second-floor apartment could easily experience “night terror” if he or she became aware that someone was breaking into or burglarizing the basement just a short distance below. That situation is similar to our example in McCray of a hotel guest hearing a burglar in a coffee shop across the hall (see McCray, 23 NY3d at 627). Likewise, if the occupant of a second-floor apartment was the owner of the deli here—similar to the example in McCray of a shop owner/tenant—that person might be likely to confront the burglar to protect his or her property, creating the possibility of violence and danger to human life which the statute was designed to deter (see id. at 627; see also Barney, 99 NY2d at 370; Quinn, 71 NY at 567, 572).

The majority is not only applying the exception for the first time, but it is doing so in a factual situation that—despite the majority’s claim that its holding is limited to the “narrow circumstances of this case” (majority mem at 1006)—invites the broad application of the exception to numerous ordinary buildings, that is, buildings with a commercial space on the ground floor, storage in a basement beneath the business, and residential units in the upper stories. The building here consists of eight stories (including the basement), of which six contain apartments. That means that approximately 75% of the building is residential. This is a far cry from the example we imagined in McCray, which consisted of a mainly commercial skyscraper containing a few apartments a great distance from the building’s stores and offices (see McCray, 23 NY3d at 627).

Application of the general rule here is consistent with the purpose of the statute, and the majority’s holding constitutes an unreasonable expansion of the exception to that rule. Rather than limiting the exception to cases in which “applying the four walls and a roof rule would stretch the statute beyond its purpose” (id. at 628), the majority’s application of the judicially-created exception here has stretched the exception beyond its limits, causing it to swallow the general rule as set forth by the legislature in the statute. Because the basement in this primarily-residential building was not so remote from the living quarters as to eliminate the special dangers inherent in the burglary of a dwelling, I would affirm defendant’s conviction of burglary in the second degree.

Chief Judge DiFiore and Judges Pigott, Rivera, Abdus-Salaam, Fahey and Garcia concur; Judge Stein dissents and votes to affirm, in an opinion.

Order modified by vacating the conviction on the count of burglary, in the second degree, dismissing that count in the indictment, and remitting to Supreme Court, New York County, for resentencing, and, as so modified, affirmed, in a memorandum.

       Defendant also argues that the People failed to prove his intent to commit a crime in the basement, but that argument is unpersuasive (see People v Samuels, 99 NY2d 20, 24 [2002]; People v Cabey, 85 NY2d 417, 421-422 [1995]).


source: Caselaw Access Project

author: Fahey, J.

license: Public Domain

text:
    [64 NE3d 276, 41 NYS3d 456]
    In the Matter of Yoga Vida NYC, Inc., Appellant. Commissioner of Labor, Respondent.
    Argued September 6, 2016;
    decided October 25, 2016

      APPEARANCES OF COUNSEL

      Astrachan Gunst Thomas, P.C., Baltimore, Maryland (.Elizabeth A. Harlan, of the Maryland bar, admitted pro hac vice, James B. Astrachan, of the Maryland bar, admitted pro hac vice, and Christopher J. Lyon, of the Maryland bar, admitted pro hac vice, of counsel) and Lightman Law Firm LLC, New York City (.Douglas M. Lightman of counsel), for appellant.

      Eric T. Schneiderman, Attorney General, New York City (Valerie Figueredo, Barbara D. Underwood and Steven C. Wu of counsel), for respondent.

      Seymour W. James, Jr., The Legal Aid Society, New York City (Richard Blum, Adriene Holder and Karen Cacace of counsel), for The Legal Aid Society, amicus curiae.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the matter remitted to that Court with directions to remand to respondent for further proceedings in accordance with this memorandum.

Yoga Vida NYC, Inc. operates a yoga studio in Manhattan. It offers classes taught by both staff instructors and non-staff instructors, and classifies the latter as independent contractors. In May 2010, the Commissioner of Labor issued a determination that Yoga Vida was liable for additional unemployment contributions, effective October 1, 2009, based on its finding that the non-staff instructors are employees. Yoga Vida disputed that determination. A hearing was held before an administrative law judge (ALJ), who sustained Yoga Vida’s objection, concluded that the non-staff instructors are independent contractors and overruled the determination. The Commissioner appealed the ALJ’s decision to the Unemployment Insurance Appeal Board. The Board overruled Yoga Vi-da’s objection, reversed the decision of the ALJ, and sustained the Commissioner’s initial determination that Yoga Vida is liable for additional unemployment contributions. Yoga Vida appealed to the Appellate Division, which affirmed the determination of the Appeal Board, holding that “[o] ver all, despite the existence of evidence that could result in a contrary result, the record contains substantial evidence to support the Board’s decision that Yoga Vida had sufficient control over the instructors’ work, thereby allowing for a finding of an employer-employee relationship” (119 AD3d 1314, 1315 [3d Dept 2014]).

“[Substantial evidence consists of proof within the whole record of such quality and quantity as to generate conviction in and persuade a fair and detached fact finder that, from that proof as a premise, a conclusion or ultimate fact may be extracted reasonably—probatively and logically” (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 181 [1978]). Here, because the record as a whole does not demonstrate “that the employer exercises control over the results produced . . . [and] the means used to achieve the results” (Matter of Hertz Corp. [Commissioner of Labor], 2 NY3d 733, 735 [2004] [citation omitted]), the Board’s determination that the company exercised sufficient direction, supervision and control over the instructors to demonstrate an employment relationship is unsupported by substantial evidence.

The non-staff instructors make their own schedules and choose how they are paid (either hourly or on a percentage basis). Unlike staff instructors, who are paid regardless of whether anyone attends a class, the non-staff instructors are paid only if a certain number of students attend their classes. Additionally, in contrast to the staff instructors, who cannot work for competitor studios within certain geographical areas, the studio does not place any restrictions on where the non-staff teachers can teach, and the instructors are free to inform Yoga Vida students of classes they will teach at other locations so the students can follow them to another studio. Furthermore, only staff instructors, as distinct from non-staff instructors, are required to attend meetings or receive training.

The proof of incidental control relied upon by the Board, including that Yoga Vida inquired if the instructors had proper licenses, published the master schedule on its website, and provided the space for the classes, does not support the conclusion that the instructors are employees. Similarly, in this context, the evidence cited by the dissent, including that Yoga Vida generally determines what fee is charged and collects the fee directly from the students, and provides a substitute instructor if the non-staff instructor is unable to teach a class and cannot find a substitute, does not supply sufficient indicia of control over the instructors. Furthermore, that Yoga Vida received feedback about the instructors from the students does not support the Board’s conclusion. “The requirement that the work be done properly is a condition just as readily required of an independent contractor as of an employee and not conclusive as to either” (Matter of Hertz Corp., 2 NY3d at 735 [internal quotation marks and citation omitted]).

Fahey, J.

(dissenting). I disagree with the majority’s conclusion that the determination of the Unemployment Insurance Appeal Board is not supported by substantial evidence. Whether an employer-employee relationship exists “necessarily is a question of fact” (Matter of Villa Maria Inst. of Music [Ross], 54 NY2d 691, 692 [1981]; see Matter of Di Martino [Buffalo Courier Express Co.—Ross], 59 NY2d 638, 641 [1983]). The Board must determine whether the employer exercised control over the results produced or the means used to achieve the results, with control over the means being more important (see Matter of Empire State Towing & Recovery Assn., Inc. [Commissioner of Labor], 15 NY3d 433, 437 [2010]). Nevertheless, “no one factor is determinative” (Matter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d 734, 736 [1983]). We have stated that “the determination of the appeal board, if supported by substantial evidence on the record as a whole, is beyond further judicial review even though there is evidence in the record that would have supported a contrary conclusion” (id. [emphasis added]; see Matter of MNORX, Inc. [Ross], 46 NY2d 985, 986 [1979]).

The majority relies on the evidence in the record supporting a determination that Yoga Vida’s non-staff yoga instructors were independent contractors in concluding that the substantial evidence standard was not met (see majority mem at 1015). Yet the majority ignores the evidence in the record that does support the Board’s determination that the non-staff instructors were employees. For example, there is evidence in the record that Yoga Vida generally recruits its clients, determines what fee to charge for its classes, and collects that fee directly from the students attending the classes. Once Yoga Vida determines the class schedule and posts that schedule on its website, the non-staff yoga instructors are not free to unilaterally alter the time or length of the class, the type of class taught, or the difficulty level, and it is Yoga Vida that sets which classes will be taught and when. The non-staff instructors are responsible for finding a suitable substitute instructor if they are unable to teach their scheduled class, and if the non-staff instructor cannot find a suitable replacement, Yoga Vida will provide its own substitute. Non-staff instructors are required to notify Yoga Vida of any substitution so that it can update its schedule, and Yoga Vida considers whether a non-staff instructor frequently has a substitute teach his or her class in determining whether to continue its relationship with that instructor. Furthermore, although non-staff instructors are free to tell their students about other locations at which they teach, Yoga Vida considers whether a non-staff instructor has advertised for a class directly conflicting with a Yoga Vida class in determining whether to continue its relationship with that instructor.

In summary, the majority has examined the evidence before the Board and concluded that the evidence weighs more heavily in favor of a conclusion that the non-staff instructors are independent contractors. It is the role of the Board, however, and not this Court, to weigh the factual evidence and arrive at a conclusion (see Villa Maria Inst. of Music, 54 NY2d at 693; MNORX, Inc., 46 NY2d at 986). If the evidence “reasonably supports the [B]oard’s choice, we may not interpose our judgment to reach a contrary conclusion” (MNORX, Inc., 46 NY2d at 986). We have described substantial evidence as “[m]ore than seeming or imaginary” but “less than a preponderance of the evidence” (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180 [1978]). We have further stated that a “practical test” for determining whether substantial evidence exists is to “measur[e] the evidence against the standard of sufficiency such as to require a court to submit it as a question of fact to a jury” (id. at 181).

Here, the evidence reasonably supports the Board’s conclusion that the non-staff instructors are Yoga Vida’s employees, “even though there is evidence in the record that would have supported a contrary conclusion” (Concourse Ophthalmology Assoc., 60 NY2d at 736). In interposing its own judgment for that of the Board, the majority has disregarded the substantial evidence standard of review and erroneously denied the non-staff instructors employment benefits to which the Board determined they were entitled. I respectfully dissent.

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

Order reversed, with costs, and matter remitted to the Appellate Division, Third Department, with directions to remand to respondent Commissioner of Labor for further proceedings in accordance with the memorandum herein.


text:
    [65 NE3d 62, 42 NYS3d 91]
    Utica Mutual Insurance Company, as Subrogee of Harris Berenson et al., Appellant, v Style Management Associates Corp. et al., Respondents, et al., Defendants.
    Argued September 13, 2016;
    decided October 27, 2016

      APPEARANCES OP COUNSEL

      Abrams, Gorelick, Friedman & Jacobson, LLP, New York City (Chris Christofides of counsel), for appellant.

      Farber Brocks & Zane L.L.P., Garden City (Tracy L. Frankel and Braden H. Farber of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, the motion of defendants Style Management Associates Corp., Style Management Corp. and Yosi Sason for summary judgment dismissing the complaint denied and the certified question answered in the negative.

The issue on this appeal is whether defendants Style Management Associates Corp., Style Management Corp. and Yosi Sason (Style defendants or Style) are entitled to summary judgment as a matter of law. Viewing the facts in the light most favorable to the nonmoving party, triable issues of fact exist as to the nature of the relationship between the moving defendants and the unlicensed contractor involved in the renovation project—defendant Zak Baruch (see Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012]). Therefore, we hold that the Style defendants are not entitled to summary judgment.

Specifically, Style’s role in the home renovation project was allegedly more than the mere listing of Style’s name on the building permit and the completion of some minor carpentry work, as Sason testified. Baruch testified that he paid Style, a licensed contractor, to obtain the building permit to cover the entire renovation project, including the installation of wood floors—the same work that experts determined caused the fires and resulting property damage. According to Baruch, he and Style had engaged in similar arrangements on other projects. The permit application, signed by the homeowner, identified Style as the contractor and included floor installation in the work to be performed. In addition to Style being named on the permit application and permit, Style submitted its own certificate of liability insurance for the project, contractor’s license, and workers’ compensation information. Baruch further testified that Sason demanded (and received) additional funds because the job was bigger than Sason had anticipated. According to Baruch, Sason threatened to withdraw the permit if Baruch did not supply the additional funds, requiring Baruch to discontinue the work.

The conflicting accounts of Baruch and Sason, and the documentary evidence submitted in conjunction with the building permit, raise triable issues of fact as to the relationship between the defendants, as well as Style’s authority to control the project. A trier of fact should be permitted to determine whether Baruch and Style/Sason were partners, a joint venture, or in an agency relationship such that the Style defendants would be liable for the damage that occurred as a result of the flooring work.

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

Order reversed, with costs, motion of defendants Style Management Associates Córp., Style Management Corp. and Yosi Sason for summary judgment dismissing the complaint denied and certified question answered in the negative, in a memorandum.


text:
    Chianis & Anderson Architects, PLLC, Respondent, v Courterback Development Company, LLC, et al., Appellants, et al., Defendant.
    Submitted July 18, 2016;
    decided October 27, 2016
   Motion, insofar as R2 Development Company, LLC seeks leave to appeal from so much of the Appellate Division order as affirmed so much of the Supreme Court judgment as against it, denied; motion for leave to appeal otherwise dismissed upon the ground that the remainder of the Appellate Division order from which leave to appeal is sought does not finally determine the action as to the remaining parties within the meaning of the Constitution.


text:
    In the Matter of County of Cayuga, Appellant, v Nirav R. Shah, Commissioner, New York State Department of Health, et al., Respondents.
    Submitted August 3, 2015;
    decided October 27, 2016
   Motion for leave to appeal denied on the ground that an appeal lies as of right (CPLR 5601 [b] [1]).

Judges Stein and Fahey taking no part.


text:
    In the Matter of County of Chautauqua, Appellant, v Nirav R. Shah, as Commissioner of the New York State Department of Health, et al., Respondents.
    Submitted May 4, 2015;
    decided October 27, 2016
   Motion for leave to appeal denied on the ground that an appeal lies as of right (CPLR 5601 [b] [1]).

Judges Stein and Fahey taking no part.


text:
    In the Matter of County of Genesee, Appellant, v Nirav R. Shah, M.D., M.P.H., Commissioner, New York State Department of Health, et al., Respondents.
    Submitted May 26, 2015;
    decided October 27, 2016
   Motion for leave to appeal denied on the ground that an appeal lies as of right (CPLR 5601 [b] [1]).

Judges Stein and Fahey taking no part.


text:
    In the Matter of County of Jefferson, Appellant, v Nirav R. Shah, as Commissioner of the New York State Department of Health, et al., Respondents.
    (Appeal No. 2.)
    Submitted May 4, 2015;
    decided October 27, 2016
   Motion for leave to appeal denied on the ground that an appeal lies as of right (CPLR 5601 [b] [1]).

Judges Stein and Fahey taking no part.


text:
    In the Matter of County of Monroe, Appellant, v Nirav R. Shah, Commissioner, New York State Department of Health, et al., Respondents.
    Submitted August 3, 2015;
    decided October 27, 2016
   Motion for leave to appeal denied on the ground that an appeal lies as of right (CPLR 5601 [b] [1]).

Judges Stein and Fahey taking no part.


text:
    In the Matter of County of Oneida, Appellant, v Nirav R. Shah, M.D., M.P.H., Commissioner, New York State Department of Health, et al., Respondents.
    Submitted May 26, 2015;
    decided October 27, 2016
   Motion for leave to appeal denied on the ground that an appeal lies as of right (CPLR 5601 [b] [1]).

Judges Stein and Fahey taking no part.


text:
    Lesley Drazek, Appellant, v Vital Transportation, Inc., Respondent.
    Submitted July 25, 2016;
    decided October 27, 2016
   Motion for reargument of motion for leave to appeal dismissed as untimely (see Rules of Ct of Appeals [22 NYCRR] § 500.24 [b]) [see 27 NY3d 1015 (2016)]. Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the action within the meaning of the Constitution.


text:
    Financial Services Vehicle Trust, Plaintiff, v Andre H. Saad, Defendant/Third-Party Plaintiff-Appellant. Government Employees Insurance Company et al., Third-Party Defendants-Respondents, et al., Third-Party Defendants.
    Submitted July 11, 2016;
    decided October 27, 2016
   Motion, insofar as it seeks leave to appeal as against Government Employees Insurance Company, dismissed upon the ground that as to it the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Johnathan Johnson, Appellant, v Cynthia Neidl, Respondent.
    Submitted August 22, 2016;
    decided October 27, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Lizzette Morales, Appellant, v New York City Housing Authority, Respondent.
    Submitted October 11, 2016;
    decided October 27, 2016
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]). Motion for poor person relief dismissed as academic. Motion for a stay dismissed as academic.


text:
    Tatiana Neroni, Appellant, v Jonathan S. Follender et al., Respondents.
    Submitted August 15, 2016;
    decided October 27, 2016
   Motion for reargument denied [see 27 NY3d 1147 (2016)].

Judges Stein and Fahey taking no part.


text:
    Paramount Leasehold, L.P., Respondent, v 43rd Street Deli, Inc., Doing Business as Bella Vita Pizzeria, Appellant.
    Submitted August 8, 2016;
    decided October 27, 2016
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed so much of the Supreme Court order as denied the application to compel arbitration, denied; motion for leave to appeal otherwise dismissed upon the ground that the remainder of the order does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v Willie Singleton, Appellant.
    Submitted August 22, 2016;
    decided October 27, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Weydman Electric, Inc., Appellant, v Joint Schools Construction Board et al., Respondents.
    Submitted August 1, 2016;
    decided October 27, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    (October 1, 2016 through
    October 31, 2016)
    Woods, Matter of, v State Univ. of N.Y.
   3d Dept: 139 AD3d 1322

10/18/16


text:
    (October 1, 2016 through
    October 31, 2016)
    People v Petke
   3d Dept: 125 AD3d 1103

10/3/16


text:
    (October 1, 2016 through
    October 31, 2016)
    People v Adams
   2d Dept: 140 AD3d 1179 (Queens)

denied 10/4/16 (Pigott, J.)


text:
    People v Alcarez
   3d Dept: 141 AD3d 943 (Columbia)

denied 10/31/16 (Pigott, J.)


text:
    People v Al Haideri
   3d Dept: 141 AD3d 742 (Albany)

denied 10/11/16 (Pigott, J.)


text:
    People v Alleyne
   2d Dept: 142 AD3d 509 (Kings)

denied 10/12/16 (Rivera, J.)


text:
    People v Anderson
   2d Dept: 142 AD3d 509 (Kings)

denied 10/31/16 (Pigott, J.)


text:
    People v Arrington
   App Div, 3d Dept, 5/16/16 (Albany)

dismissed 10/26/16 (Rivera, J.)


text:
    People v Aviles
   2d Dept: 142 AD3d 671 (Suffolk)

denied 10/17/16 (Stein, J.)


text:
    People v Baker
   1st Dept: 139 AD3d 591 (Bronx)

denied 10/24/16 (Fahey, J.)


text:
    People v Bazemore
   2d Dept: 142 AD3d 555 (Queens)

denied 10/12/16 (Rivera, J.)


text:
    People v Bediako
   App Term, 2d Dept, 2d, 11th & 13th Jud Dists: 52 Misc 3d 140(A) (Kings)

denied 10/11/16 (DiFiore, Ch. J.)


text:
    People v Bernardini
   2d Dept: 142 AD3d 671 (Westchester)

denied 10/31/16 (Pigott, J.)


text:
    People v Bey
   2d Dept: 140 AD3d 1079 (Queens)

denied 10/20/16 (Stein, J.)


text:
    People v Black
   4th Dept: 137 AD3d 1679 (Onondaga)

denied reconsideration 10/4/16 (Pigott, J.)


text:
    People v Bolling
   4th Dept: 141 AD3d 1176 (Monroe)

denied 10/10/16 (Rivera, J.)


text:
    People v Bonds
   2d Dept: 140 AD3d 897 (Queens)

denied 10/11/16 (Garcia, J.)


text:
    People v Booker
   3d Dept: 141 AD3d 834 (Tompkins)

denied 10/27/16 (Abdus-Salaam, J.)


text:
    People v Bowen
   App Term, 2d Dept, 2d, 11th & 13th Jud Dists: 2016 NY Slip Op 51657(U) (Kings)

denied 10/27/16 (Pigott, J.)


text:
    People v Boyd
   4th Dept: 137 AD3d 1615 (Onondaga)

denied 10/12/16 (Rivera, J.)


text:
    People v Brodus
   App Div, 3d Dept: 2016 NY Slip Op 70576(U) (Broome)

denied 10/18/16 (DiFiore, Ch. J.)


text:
    People v Brooks
   4th Dept: 139 AD3d 1391 (Steuben)

denied 10/12/16 (Rivera, J.)


text:
    People v Brown (Curtis)
   4th Dept: 140 AD3d 1740 (Onondaga)

denied 10/11/16 (Garcia, J.)


text:
    People v Brown (Eddie)
   2d Dept: 141 AD3d 535 (Kings)

denied 10/4/16 (Pigott, J.)


text:
    People v Brown (Everton)
   App Div, 1st Dept: 2015 NY Slip Op 78085(U) (Bronx)

dismissed 10/26/16 (Rivera, J.)


text:
    People v Busch
   County Ct, 6/29/16 (Washington)

denied 10/4/16 (Pigott, J.)


text:
    People v Butler
   1st Dept: 140 AD3d 472 (Bronx)

denied 10/11/16 (Garcia, J.)


text:
    People v Byfield
   App Div, 1st Dept: 2016 NY Slip Op 77571(U) (Bronx)

dismissed 10/11/16 (Stein, J.)


text:
    People v Carr
   4th Dept: 141 AD3d 1124 (Erie)

denied 10/3/16 (Garcia, J.)


text:
    People v Ceruti
   2d Dept: 142 AD3d 558 (Queens)

denied 10/11/16 (Stein, J.)


text:
    People v Chambers
   2d Dept: 142 AD3d 672 (Kings)

denied 10/20/16 (Stein, J.)


text:
    People v Chander
   2d Dept: 140 AD3d 1181 (Queens)

denied 10/27/16 (Abdus-Salaam, J.)


text:
    People v Chestnut
   2d Dept: 142 AD3d 559 (Queens)

denied 10/11/16 (Pigott, J.)


text:
    People v Clark
   3d Dept: 142 AD3d 723 (Schenectady)

denied 10/27/16 (Pigott, J.)


text:
    People v Clarke
   App Div, 2d Dept: 2016 NY Slip Op 76774(U) (Queens)

dismissed 10/12/16 (Garcia, J.)


text:
    People v Collins
   2d Dept: 141 AD3d 729 (Queens)

denied 10/27/16 (Abdus-Salaam, J.)


text:
    People v Constantopoules
   3d Dept: 141 AD3d 942 (Schenectady)

denied 10/27/16 (Abdus-Salaam, J.)


text:
    People v Constantopoulos
   3d Dept: 141 AD3d 942 (Schenectady)

denied 10/27/16 (Abdus-Salaam, J.)


text:
    People v Cross
   App Term, 2d Dept, 9th & 10th Jud Dists: 52 Misc 3d 133(A) (Nassau)

denied 10/12/16 (Rivera, J.)


text:
    People v Cruz (Michael)
   2d Dept: 141 AD3d 601 (Kings)

denied 10/27/16 (Abdus-Salaam, J.)


text:
    People v Cruz (Ruben)
   App Term, 2d Dept, 2d, 11th & 13th Jud Dists: 52 Misc 3d 81

denied 10/11/16 (Garcia, J.)


text:
    People v Custodio
   2d Dept: 141 AD3d 730 (Queens)

denied 10/11/16 (Garcia, J.)


text:
    People v Davis
   2d Dept: 141 AD3d 542 (Nassau)

denied 10/12/16 (Rivera, J.)


text:
    People v Degroat
   2d Dept: 140 AD3d 1185 (Orange)

denied 10/17/16 (Garcia, J.)


text:
    People v Dixon
   2d Dept: 138 AD3d 1016 (Queens)

denied reconsideration 10/4/16 (Pigott, J.)


text:
    People v Douglas
   App Div, 1st Dept: 2016 NY Slip Op 75724(U) (Bronx)

denied 10/27/16 (Abdus-Salaam, J.)


text:
    People v Drennan
   App Div, 4th Dept, 8/11/16 (Wayne)

dismissed 10/11/16 (Stein, J-)


text:
    People v Edwin L.
   2d Dept: 142 AD3d 718 (Queens)

denied 10/31/16 (Stein, J.)


text:
    People v Ennis
   4th Dept: 141 AD3d 1124 (Jefferson)

denied 10/12/16 (Rivera, J.)


text:
    People v Faircloth
   App Div, 4th Dept: 2016 NY Slip Op 81322(U) (Cattaraugus)

dismissed 10/24/16 (Stein, J.)


text:
    People v Farmer
   4th Dept: 136 AD3d 1410 (Onondaga)

denied 10/11/16 (Garcia, J.)


text:
    People v Feliciano
   4th Dept: 140 AD3d 1776 (Monroe)

denied 10/4/16 (Pigott, J.)


text:
    People v Fleming
   1st Dept: 141 AD3d 408 (Bronx)

denied 10/11/16 (Garcia, J.)


text:
    People v Forty
   3d Dept: 141 AD3d 942 (Schenectady)

denied 10/27/16 (Abdus-Salaam, J.)


text:
    People v Friedman
   App Div, 2d Dept: 2016 NY Slip Op 75588(U) (Queens)

dismissed 10/12/16 (Garcia, J.)


text:
    People v Gentile
   App Div, 2d Dept: 2016 NY Slip Op 77877(U) (Queens)

dismissed 10/11/16 (Fahey, J.)


text:
    People v Gerathy
   2d Dept: 140 AD3d 1088 (Dutchess)

denied 10/4/16 (Pigott, J.)


text:
    People v Gil
   2d Dept: 141 AD3d 543 (Suffolk)

denied 10/4/16 (Pigott, J.)


text:
    People v Gilford
   1st Dept: 140 AD3d 547 (NY)

denied 10/11/16 (Garcia, J.)


text:
    People v Gonzalez (David)
   2d Dept: 142 AD3d 717 (Kings)

denied 10/21/16 (García, J.)


text:
    People v Gonzalez (Romualdo)
   App Div, 1st Dept: 2011 NY Slip Op 91566(U) (NY)

denied 10/11/16 (Pigott, J.)


text:
    People v Gonzalez (Romualdo)
   App Div, 1st Dept: 2011 NY Slip Op 91567(U) (NY)

dismissed 10/11/16 (Pigott, J.)


text:
    People v Graves
   2d Dept: 142 AD3d 559 (Kings)

denied 10/11/16 (Garcia, J.)


text:
    People v Green
   2d Dept: 141 AD3d 544 (Queens)

denied 10/4/16 (Pigott, J.)


text:
    People v Greenleaf
   App Div, 3d Dept: 2016 NY Slip Op 81574(U) (Broome)

denied 10/11/16 (Fahey, J.)


text:
    People v Hamilton
   App Div, 2d Dept: 2016 NY Slip Op 83131(U) (Kings)

dismissed 10/27/16 (Rivera, J.)


text:
    People v Harris (Eric)
   4th Dept: 138 AD3d 1513 (Seneca)

denied 10/11/16 (Garcia, J.)


text:
    People v Harris (Fred)
   App Div, 2d Dept: 2016 NY Slip Op 80387(U) (Kings)

dismissed 10/27/16 (Abdus-Salaam, J.)


text:
    People v Harwood
   3d Dept: 139 AD3d 1186 (Schenectady)

denied 10/24/16 (Garcia, J.)


text:
    People v Hollenquest
   2d Dept: 139 AD3d 873 (Queens)

denied 10/17/16 (Garcia, J.)


text:
    People v Huffman
   4th Dept: 140 AD3d 1780 (Erie)

denied 10/4/16 (Pigott, J.)


text:
    People v Izzo
   App Div, 3d Dept: 2016 NY Slip Op 78513(U) (Franklin)

denied 10/24/16 (Fahey, J.)


text:
    People v James (Andrew)
   App Div, 2d Dept: 2016 NY Slip Op 81925(U) (Kings)

dismissed 10/26/16 (Rivera, J.)


text:
    People v James (Antonio)
   4th Dept: 141 AD3d 1113 (Monroe)

denied 10/4/16 (Pigott, J.)


text:
    People v Johnson (Howard)
   4th Dept: 140 AD3d 1630 (Monroe)

denied 10/4/16 (Pigott, J.)


text:
    People v Johnson (Laquin)
   2d Dept: 140 AD3d 1188 (Westchester)

denied 10/4/16 (Pigott, J.)


text:
    People v Johnson (Matthew)
   App Div, 3d Dept: 2016 NY Slip Op 68277(U) (Tompkins)

denied 10/11/16 (Fahey, J.)


text:
    People v Johnston
   3d Dept: 140 AD3d 1528 (Franklin)

denied 10/27/16 (Abdus-Salaam, J.)


text:
    People v Kerce
   4th Dept: 140 AD3d 1659 (Onondaga)

denied 10/4/16 (Pigott, J.)


text:
    People v King
   App Div, 3d Dept, 5/5/16 (Schoharie)

dismissed 10/24/16 (Fahey, J.)


text:
    People v Kordish
   2d Dept: 140 AD3d 981 (Queens)

denied 10/27/16 (Abdus-Salaam, J.)


text:
    People v Latorres
   App Div, 1st Dept: 2016 NY Slip Op 79483(U) (NY)

denied 10/11/16 (DiFiore, Ch. J.)


text:
    People v Lawrence
   4th Dept: 141 AD3d 1079 (Erie)

denied 10/11/16 (Garcia, J.)


text:
    People v Leverich
   2d Dept: 140 AD3d 901 (Dutchess)

denied 10/4/16 (Pigott, J.)


text:
    People v Lewis (Gil)
   1st Dept: 139 AD3d 571 (NY)

denied reconsideration 10/19/16 (Rivera, J.)


text:
    People v Lewis (L.A.)
   1st Dept: 139 AD3d 546 (NY)

denied 10/11/16 (Garcia, J.)


text:
    People v Lewis (Michael)
   App Term, 2d Dept, 2d, 11th & 13th Jud Dists: 52 Misc 3d 134(A) (Kings)

denied 10/24/16 (Fahey, J.)


text:
    People v Lewis (Robert)
   4th Dept: 140 AD3d 1593 (Steuben)

denied 10/11/16 (Garcia, J.)


text:
    People v MacKenzie
   2d Dept: 132 AD3d 908 (Nassau)

denied reconsideration 10/27/16 (Abdus-Salaam, J.)


text:
    People v Maldonado
   3d Dept: 140 AD3d 1530 (Albany)

denied 10/11/16 (Fahey, J.)


text:
    People v Mandela
   3d Dept: 142 AD3d 81 (Ulster)

denied 10/11/16 (Rivera, J.)


text:
    People v Marino
   2d Dept: 135 AD3d 877 (Queens)

denied reconsideration 10/24/16 (Stein, J.)


text:
    People v Manow
   App Term, 2d Dept, 9th & 10th Jud Dists: 52 Misc 3d 136(A) (Westchester)

denied 10/4/16 (Pigott, J.)


text:
    People v Martinez
   1st Dept: 140 AD3d 624 (NY)

denied 10/11/16 (Garcia, J.)


text:
    People v McElroy
   2d Dept: 139 AD3d 982 (Kings)

denied 10/3/16 (Garcia, J.)


text:
    People v Mejia
   2d Dept: 142 AD3d 628 (Suffolk)

denied 10/24/16 (Fahey, J.)


text:
    People v Melendez
   2d Dept: 138 AD3d 758 (Suffolk)

denied 10/11/16 (Garcia, J.)


text:
    People v Mendez
   2d Dept: 142 AD3d 510 (Kings)

denied 10/17/16 (Stein, J.)


text:
    People v Menner
   App Term, 2d Dept, 2d, 11th & 13th Jud Dists: 53 Misc 3d 52 (Kings)

denied 10/11/16 (Garcia, J.)


text:
    People v Mingo
   1st Dept: 141 AD3d 423 (NY)

denied 10/4/16 (Pigott, J.)


text:
    People v Mitchell
   App Div, 2d Dept: 2016 NY Slip Op 79479(U) (Suffolk)

dismissed 10/27/16 (Pigott, J.)


text:
    People v Mohamed
   App Term, 2d Dept, 2d, 11th & 13th Jud Dists: 53 Misc 3d 14 (Kings)

denied 10/12/16 (Rivera, J.)


text:
    People v Monroe
   1st Dept: 141 AD3d 421 (Bronx)

denied 10/20/16 (Stein, J.)


text:
    People v Nadal
   App Div, 2d Dept: 2016 NY Slip Op 80390(U) (Westchester)

dismissed 10/24/16 (Fahey, J.)


text:
    People v Ortiz
   App Div, 1st Dept: 2016 NY Slip Op 76034(U) (NY)

dismissed 10/27/16 (Pigott, J.)


text:
    People v Oviedo
   2d Dept: 139 AD3d 1091 (Westchester)

denied 10/24/16 (Fahey, J.)


text:
    People v Palladino
   2d Dept: 140 AD3d 1194 (Suffolk)

denied 10/4/16 (Pigott, J.)


text:
    People v Parker
   4th Dept: 133 AD3d 1300 (Monroe)

denied reconsideration 10/27/16 (Abdus-Salaam, J.)


text:
    People v Pasternak
   2d Dept: 141 AD3d 544 (Kings)

denied 10/11/16 (Garcia, J.)


text:
    People v Patterson
   App Div, 2d Dept: 2016 NY Slip Op 74300(U) (Suffolk)

dismissed 10/11/16 (Stein, J.)


text:
    People v Perez
   2d Dept: 140 AD3d 799 (Westchester)

denied 10/12/16 (Rivera, J.)


text:
    People v Pleasant
   App Div, 1st Dept: 2016 NY Slip Op 78033(U) (NY)

dismissed 10/24/16 (DiFiore, Ch. J.)


text:
    People v Policastro
   2d Dept: 142 AD3d 679 (Kings)

denied 10/24/16 (Fahey, J.)


text:
    People v Porter
   2d Dept: 138 AD3d 1148 (Queens)

denied 10/12/16 (Rivera, J.)


text:
    People v Reed
   1st Dept: 137 AD3d 438 (NY)

denied reconsideration 10/11/16 (Pigott, J.)


text:
    People v Ressy (Alex)
   3d Dept: 141 AD3d 839 (Montgomery)

denied 10/27/16 (Abdus-Salaam, J.)


text:
    People v Ressy (Pedro)
   3d Dept: 141 AD3d 839 (Montgomery)

denied 10/27/16 (Abdus-Salaam, J.)


text:
    People v Riley-Khan
   County Ct, 7/15/16 (Ontario)

denied 10/19/16 (Stein, J.)


text:
    People v Rinker
   4th Dept: 141 AD3d 1177 (Allegany)

denied 10/12/16 (Rivera, J.)


text:
    People v Rivera
   2d Dept: 142 AD3d 629 (Suffolk)

denied 10/11/16 (Stein, J.)


text:
    People v Rounds
   4th Dept: 140 AD3d 1657 (Lewis)

denied 10/27/16 (Rivera, J.)


text:
    People v Russell
   County Ct, 6/29/16 (Washington)

denied 10/4/16 (Pigott, J.)


text:
    People v St. Pierre
   3d Dept: 141 AD3d 958 (Clinton)

denied 10/11/16 (Fahey, J.)


text:
    People v Sams
   2d Dept: 140 AD3d 1195 (Kings)

denied 10/27/16 (Abdus-Salaam, J.)


text:
    People v Sanchez
   App Div, 1st Dept: 2016 NY Slip Op 79527(U) (Bronx)

denied 10/12/16 (DiFiore, Ch. J.)


text:
    People v Sandoval
   2d Dept: 141 AD3d 621 (Queens)

denied 10/25/16 (Garcia, J.)


text:
    People v Santiago
   4th Dept: 141 AD3d 1111 (Monroe)

denied 10/4/16 (Pigott, J.)


text:
    People v Santos
   1st Dept: 140 AD3d 499 (NY)

denied 10/4/16 (Pigott, J.)


text:
    People v Simmons
   App Div, 4th Dept, 6/25/16 (Onondaga)

dismissed 10/4/16 (Pigott, J.)


text:
    People v Slater
   2d Dept: 141 AD3d 677 (Dutchess)

denied 10/11/16 (Pigott, J.)


text:
    People v Smith
   1st Dept: 139 AD3d 131 (NY)

denied 10/11/16 (Garcia, J.)


text:
    People v Spasoff
   App Term, 2d Dept, 9th & 10th Jud Dists: 52 Misc 3d 134(A) (Westchester)

denied 10/4/16 (Pigott, J.)


text:
    People v Stanley
   App Div, 3d Dept: 2013 NY Slip Op 92197(U) (Albany)

dismissed 10/11/16 (Rivera, J.)


text:
    People v Stevens
   4th Dept: 140 AD3d 1706 (Wayne)

denied 10/4/16 (Pigott, J.)


text:
    People v Stress
   2d Dept: 141 AD3d 677 (Dutchess)

denied 10/11/16 (Pigott, J.)


text:
    People v Terborg
   App Div, 4th Dept: 2015 NY Slip Op 74317(U) (Monroe)

denied reconsideration 10/11/16 (Rivera, J.)


text:
    People v Thorpe
   3d Dept: 141 AD3d 927 (Washington)

denied 10/27/16 (Pigott, J.)


text:
    People v Tucker
   App Term, 1st Dept: 52 Misc 3d 144(A) (NY)

denied 10/31/16 (Stein, J.)


text:
    People v Turner
   2d Dept: 142 AD3d 680 (Queens)

denied 10/17/16 (Garcia, J.)


text:
    People v Tusa
   2d Dept: 142 AD3d 680 (Suffolk)

denied 10/19/16 (Rivera, J.)


text:
    People v Urbanski
   County Ct, 7/18/16 (Erie)

denied 10/20/16 (Stein, J.)


text:
    People v Urena
   App Div, 2d Dept: 2016 NY Slip Op 80155(U) (Queens)

dismissed 10/12/16 (Garcia, J.)


text:
    People v Vinzant
   2d Dept: 142 AD3d 720 (Suffolk)

denied 10/26/16 (Rivera, J.)


text:
    People v Williams (Christopher)
   App Term, 2d Dept, 2d, 11th & 13th Jud Dists: 52 Misc 3d 141(A) (Kings)

denied 10/27/16 (Rivera, J.)


text:
    People v Williams (DeAndre)
   App Div, 2d Dept: 2016 NY Slip Op 73385(U) (Westchester)

denied reconsideration 10/11/16 (Rivera, J.)


text:
    People v Williams (Harry)
   4th Dept: 141 AD3d 1109 (Monroe)

denied 10/12/16 (Rivera, J.)


text:
    People v Williams (Isiah)
   App Div, 4th Dept: 2016 NY Slip Op 74620(U) (Monroe)

denied reconsideration 10/27/16 (Abdus-Salaam, J.)


text:
    People v Williams (Isiah)
   App Div, 4th Dept: 2016 NY Slip Op 74620(U) (Ontario)

denied reconsideration 10/27/16 (Abdus-Salaam, J.)


text:
    People v Wingate (Blake)
   App Div, 2d Dept: 2016 NY Slip Op 77699(U) (Queens)

denied 10/17/16 (Garcia, J.)


text:
    People v Wingate (Terry)
   2d Dept: 142 AD3d 630 (Kings)

denied 10/19/16 (Rivera, J.)


text:
    People v Wrenn
   App Term, 2d Dept, 9th & 10th Jud Dists: 52 Misc 3d 141(A) (Nassau)

denied 10/11/16 (Pigott, J.)


text:
    (October 1, 2016 through
    October 31, 2016)
    People v Peguero-Sanchez
   2d Dept: 141 AD3d 608 (Suffolk)

granted 10/17/16 (Austin, J.)


text:
    [65 NE3d 698, 42 NYS3d 668]
    George Newman et al., Appellants, v RCPI Landmark Properties, LLC, et al., Respondents.
    Argued October 18, 2016;
    decided November 17, 2016

      APPEARANCES OF COUNSEL

      Napoli Shkolnik PLLC, New York City (Annie E. Causey and Joseph P Napoli of counsel), for appellants.

      Ahmuty, Demers & McManus, Albertson (Glenn A. Kaminska and Nicholas M. Cardascia of counsel), for respondents.

      Margaret G. Klein, Defense Association of New York, Inc., New York City (Andrew Zajac, Dawn C. DeSimone, Roña L. Platt, Brendan T. Fitzpatrick and Jonathan T. Uejio of counsel), and McGaw, Alventosa & Zajac, Jericho, for Defense Association of New York, Inc., amicus curiae.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and defendants’ motion for summary judgment dismissing the complaint denied.

This is an ordinary negligence case. Questions regarding proximate cause generally are for a trier of fact (see Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980], rearg denied 52 NY2d 784 [1980]). Defendants’ own submissions do not establish as a matter of law that their alleged negligence was not a proximate cause of the accident (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Viewed “ ‘in the light most favorable to [plaintiffs,] the non-moving parties]’ ” (Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012], quoting Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 339 [2011]), those submissions leave open the possibility that some negligence on defendants’ part contributed to the injuries incurred by George Newman (plaintiff) when he descended from the loading dock in question, and that there is a causal link between that alleged negligence and plaintiff’s fall.

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

Order reversed, with costs, and defendants’ motion for summary judgment dismissing the complaint denied, in a memorandum.


text:
    [65 NE3d 705, 42 NYS3d 676]
    The People of the State of New York, Respondent, v Eugene Francis, Appellant.
    Decided November 17, 2016

      APPEARANCES OF COUNSEL

      Andrew W. Sayegh, Yonkers, for appellant.

      James A. McCarty, Acting District Attorney, White Plains (.Laurie Sapakoff of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. Supreme Court had jurisdiction over the case when it corrected an error in a decision issued one day prior based on an objective fact and thereby reinstated certain counts of defendant’s indictment. Accordingly, there is no basis to disturb the judgment entered upon defendant’s guilty plea.

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

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


text:
    [65 NE3d 696, 42 NYS3d 667]
    The People of the State of New York, Respondent, v John Gayden, Appellant.
    Argued October 14, 2016;
    decided November 17, 2016

      APPEARANCES OF COUNSEL

      Timothy P. Donaher, Public Defender, Rochester (David R. Juergens of counsel), for appellant.

      Sandra Doorley, District Attorney, Rochester (.Daniel Gross of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

On June 11, 2010, police were dispatched to Ellison Street in Rochester, after an anonymous caller informed a 911 operator that two black males were walking back and forth in the area of Ellison Street and Webster Avenue carrying silver colored guns on their waists. One individual was described as wearing a white T-shirt with red letters. The other was wearing a black T-shirt.

Two uniformed police officers, each driving a marked patrol car, responded to a radio dispatch concerning the 911 call. The first officer to arrive observed two black males walking side-by-side on the Ellison Street sidewalk between Webster Avenue and Bay Street. One male had a black T-shirt and the other male wore a two-toned blue jacket, over what appeared to the officer to be a light-colored T-shirt. The officer parked his vehicle and approached the men on foot. As soon as they saw the officer, one man fled into a backyard and the other man, defendant, continued to walk southbound on Ellison Street. The officer pursued the fleeing man with his gun drawn and observed the man hide what was later discovered to be a handgun underneath a pile of leaves.

When the second officer arrived at the scene, he observed the fleeing man run into the backyard with the first officer running after him and defendant walking down Ellison Street. No one else was in the area. As the second officer parked and exited his vehicle, defendant yelled an expletive and fled. The officer gave chase and observed a handgun fall from defendant’s waist.

County Court denied defendant’s motion to suppress the gun. The Appellate Division affirmed, finding the second officer had “a founded suspicion that criminal activity was afoot, justifying his initial common-law inquiry of defendant” (126 AD3d 1518, 1518 [4th Dept 2015]). The Court explained that defendant’s flight upon seeing the second officer exit his vehicle provided the officer with the requisite reasonable suspicion of criminal activity to warrant his pursuit of defendant, and the fact that defendant dropped the gun during the pursuit gave rise to probable cause to arrest (id. at 1518-1519).

The issue of whether the second officer had reasonable suspicion to pursue defendant is a mixed question of law and fact, limiting our review (see People v Moore, 6 NY3d 496, 500-501 [2006]). Because there is record support for the determination of the lower courts, we affirm (see People v Pines, 99 NY2d 525, 527 [2002]; compare Moore, 6 NY3d 496 [2006]).

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

Order affirmed, in a memorandum.


text:
    [65 NE3d 699, 42 NYS3d 669]
    The People of the State of New York, Respondent, v Earl Jones, Appellant.
    Argued October 19, 2016;
    decided November 21, 2016

      APPEARANCES OF COUNSEL

      Robert S. Dean, Center for Appellate Litigation, New York City (Jody Ratner of counsel), for appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City (Jared Wolkowitz and Patricia Curran of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

A plainclothes police officer observed defendant, who was carrying a tile cutter and green duffel bag, pulling on the lock of a door to a construction site. The officer decided to follow defendant and observed him enter the open driver’s side door of a FedEx delivery truck that was parked on the street. The officer saw defendant rummage through the front compartment of the truck and then walk around to the back, where packages were stored. The officer testified that, from his vantage point, he could see a portion of defendant’s leg as he stood for a few seconds at the back of the truck. Just as the officer began to approach, defendant walked away. When the officer reached the back of the vehicle, an unidentified woman who was standing nearby asked: “Did you see he was trying to get into the back of the truck? Are you going to get him?” Soon thereafter, the officer observed defendant emerge from a building that was under construction a few blocks away. Defendant was still carrying the tile cutter and duffel bag when the officer confronted him and placed him under arrest.

Before trial, the prosecutor sought to admit the hearsay statement made by the unidentified woman as either an “excited utterance” or “present sense impression.” Defense counsel opposed the motion, but Supreme Court ruled that the statement was admissible under either exception to the hearsay rule. The jury found defendant guilty of burglary in the third degree for unlawfully entering the FedEx truck with the intent to steal and criminal trespass in the third degree for unlawfully entering the building under construction. Defendant appealed, and the Appellate Division affirmed (127 AD3d 517 [1st Dept 2015]).

Defendant’s principal argument on appeal is that the trial court erred in admitting the hearsay statement of the unidentified woman. We hold that the statement was properly admitted as a present sense impression. That exception to the hearsay rule allows the admission of “spontaneous descriptions of events made substantially contemporaneously with the observations ... if the descriptions are sufficiently corroborated by other evidence” (People v Brown, 80 NY2d 729, 734 [1993]). Here, the woman’s statement was made to the officer immediately after the event she described and before she had an opportunity for studied reflection. The officer’s own observations sufficiently corroborated her description to allow its admission at trial {see id. at 736-737).

Because the woman’s statement was admissible as a present sense impression, we need not address whether it was also admissible as an excited utterance. Defendant’s remaining challenge to the statement on Confrontation Clause grounds is unpreserved for our review, and his argument with respect to the legal sufficiency of the verdict lacks merit.

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

Order affirmed, in a memorandum.


text:
    [65 NE3d 1275, 43 NYS3d 240]
    The Bank of New York Mellon, Solely as Securities Administrator for J.P. Morgan Mortgage Acquisition Trust 2006-WMC4, Respondent, v WMC Mortgage, LLC, Defendant, and J.P. Morgan Mortgage Acquisition Corporation et al., Appellants.
    Decided October 25, 2016

      APPEARANCES OF COUNSEL

      Sullivan & Cromwell LLP, New York City (.Darrell S. Ca-fasso, Robert A. Sacks and Brent J. McIntosh of counsel), for appellants.

      Holwell Shuster & Goldberg LLP, New York City (Michael S. Shuster, Dwight A. Healy and Scott M. Danner of counsel), for respondent.

      Securities Industry and Financial Markets Association, Washington, D.C. {Kevin M. Carroll of counsel), and Stroock & Stroock & Lavan LLP, New York City {Michael C. Keats and David J. Kahne of counsel), for Securities Industry and Financial Markets Association, amicus curiae.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, and certified question answered in the affirmative. The motion of defendants-appellants, insofar as it sought to dismiss plaintiff’s third and fourth causes of action and so much of the seventh cause of action as is based on breach of J.R Morgan Mortgage Acquisition Corporation’s warranties, was properly denied.

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


text:
    [65 NE3d 678, 42 NYS3d 649]
    In the Matter of Joel R. Brandes, a Disbarred Attorney, Appellant.
    Argued September 8, 2016;
    decided November 1, 2016

      APPEARANCES OF COUNSEL

      McDonough & McDonough, LLP, Garden City (Chris G. Mc-Donough of counsel), for appellant.

      Mitchell T. Borkowsky, Hauppauge (Robert H. Cabbie of counsel), for New York State Grievance Committee for the Tenth Judicial District, respondent.
   OPINION OF THE COURT

Memorandum.

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

Under the Judiciary Law, “the appellate division of the supreme court in each department is authorized to censure, suspend from practice or remove from office any attorney . . . who is guilty of professional misconduct ... or any conduct prejudicial to the administration of justice” (Judiciary Law § 90 [2]). In 2002, the Appellate Division, Second Department disbarred Joel R. Brandes. In its disbarment order, the Court directed Brandes to

“desist and refrain from (1) practicing law in any form, either as principal or as agent, clerk, or employee of another, (2) appearing as an attorney or counselor-at-law before any court, judge, justice, board, commission, or other public authority, (3) giving to another an opinion as to the law or its application or any advice in relation thereto, and (4) holding himself out in any way as an attorney and counselor-at-law” (Matter of Brandes, 292 AD2d 129, 137 [2d Dept 2002], lv denied 99 NY2d 506 [2003]).

After the seven year period imposed by the Rules of the Appellate Division, Brandes applied for reinstatement three times, and all of his applications were denied. This appeal concerns the denial of his third application.

Just as the Appellate Division has control over an attorney’s disbarment, it too has control over an attorney’s reinstatement. In the Second Department, “[a]n application for reinstatement may be granted by the court only upon a showing ... by clear and convincing evidence that [the attorney] has fully complied with the provisions of the order disbarring or suspending him or her . . . and that he or she possesses the character and general fitness to practice law” (former Rules of App Div, 2d Dept [22 NYCRR] § 691.11 [c] [1]). Here, the Court found that Brandes “engaged in the unauthorized practice of law during the period of his disbarment when he provided paralegal services via the Internet” (Matter of Brandes, 2015 NY Slip Op 81096[U] [2015]). Specifically, the Court found that Brandes would speak to an attorney over the telephone or by email, rendering legal advice or an opinion about the legal problems of a particular client, and that he contracted to draft briefs and other litigation papers for attorneys, all in violation of Judiciary Law § 478.

Because “[t]he Appellate Division is the fact finder on issues of character and fitness and its discretion is inclusive” (Matter of Anonymous, 79 NY2d 782, 783 [1991]), our standard of review is limited to whether the Second Department abused its discretion. Here, because there was record support for the Court’s decision, there was no abuse of discretion in denying the reinstatement application.

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

Order affirmed, without costs, in a memorandum.


text:
    Aftermath Restoration, Inc., Plaintiff, v New York Central Mutual Fire Insurance Company et al., Respondents, and David Dale, Appellant.
    Submitted August 29, 2016;
    decided November 1, 2016
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.

Judges Pigott and Fahey taking no part.


text:
    Central National Bank, Canajoharie, Respondent, v Scotty’s Auto Sales, Inc., Defendant, and Elaine Amidon, Appellant.
    Submitted August 22, 2016;
    decided November 1, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Yehuda Deutsch, as Administrator of the Estate of Jesie Deutsch, Deceased, Appellant, v Cheskel Grunwald et al., Respondents.
    Submitted August 29, 2016;
    decided November 1, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    New York State Electric & Gas Corporation, Appellant, v County of Chemung et al., Respondents.
    Submitted August 15, 2016;
    decided November 1, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v Rickey Gamble, Appellant.
    Submitted August 22, 2016;
    decided November 1, 2016
   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 Appellate Division order entered in this proceeding commenced in City Court (see NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]).


text:
    The People of the State of New York ex rel. James Pearce, Appellant, v Stewart Eckert, Respondent.
    Submitted August 22, 2016;
    decided November 1, 2016
   Motion for leave to appeal dismissed upon the ground that it does not lie from the order of an individual Justice of the Appellate Division (see NY Const, art VI, § 3 [b]; CPLR 5602). Motion for poor person relief dismissed as academic.

Judges Pigott and Fahey taking no part.


text:
    Richard Ronkese, Respondent, v Tilcon New York, Inc., Appellant, et al., Defendants.
    Submitted August 1, 2016;
    decided November 1, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Terry Sanders, Appellant, v Anthony J. Annucci, as Acting Commissioner of Corrections and Community Supervision, Respondent.
    Submitted July 11, 2016;
    decided November 1, 2016
   Motion for reargument etc. denied [see 27 NY3d 1064 (2016)].


text:
    In the Matter of Terry Sanders, Appellant, v Anthony J. Annucci, as Acting Commissioner of Corrections and Community Supervision, Respondent.
    Submitted August 22, 2016;
    decided November 1, 2016
   Motion for reargument etc. denied [see 27 NY3d 1064 (2016)].


text:
    Seth Mitchell, CFA, Appellant, v New York University et al., Respondents.
    Submitted August 22, 2016;
    decided November 1, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for poor person relief etc. dismissed as academic.


text:
    Sherilyn F. Van Orden, Appellant, v Richard E. Van Orden, Respondent.
    Submitted July 25, 2016;
    decided November 1, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.

Judge Stein taking no part.


text:
    [65 NE3d 1280, 43 NYS3d 245]
    Miriam Levy Oates, as Administratrix of the Estate of Rachel Levy, Deceased, et al., Respondents, v New York City Transit Authority, Appellant, et al., Defendants.
    Decided November 17, 2016

      APPEARANCES OF COUNSEL

      Lawrence Heisler, MTA New York City Transit, Brooklyn, for appellant.

      Law Offices of Rosemarie Arnold, New York City (Paige R. Butler of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs. The Appellate Division correctly determined that legally sufficient evidence supported the jury’s findings of negligence and entitlement to damages for decedent’s conscious pain and suffering.

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


text:
    [65 NE3d 1281, 43 NYS3d 245]
    The People of the State of New York, Respondent, v Clinton Johnson, Appellant.
    Decided November 17, 2016
    APPEARANCES OF COUNSEL

      Philip Rothschild, Hiscock Legal Aid Society, Syracuse (Evan Hannay of counsel), for appellant.

      William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. There is record support for the conclusion that the nearly 4V2 year delay between the crime and the indictment “did not deprive defendant of his due process right to prompt prosecution” (People v Velez, 22 NY3d 970, 972 [2013]). This is not a circumstance where “a lengthy and unjustifiable delay in commencing the prosecution . . . require [s] dismissal even though no actual prejudice to the defendant is shown” (People v Singer, 44 NY2d 241, 253-254 [1978]).

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

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


text:
    American Economy Insurance Company et al., Respondents, v State of New York et al., Appellants.
    Submitted November 7, 2016;
    decided November 17, 2016
   Motion by American Insurance Association et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    In the Matter of Ibrahim Donmez, Appellant, v New York City Department of Consumer Affairs et al., Respondents.
    Decided November 17, 2016
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Ibrahim Donmez, Appellant, v New York City Department of Consumer Affairs et al., Respondents.
    Decided November 17, 2016
   Appeal, insofar as taken from the Appellate Division order confirming the determination of respondent New York City Department of Consumer Affairs, denying the petition, and dismissing the proceeding, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved; appeal, insofar as taken from the Appellate Division order resolving the motion to enlarge the record, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Frank G., Appellant, v Renee P-F. et al., Respondents. (Proceeding No. 1.) In the Matter of Renee P-F., Respondent, v Frank G., Appellant. (Proceeding No. 2.) In the Matter of Joseph P., Respondent, v Frank G., Appellant. (Proceeding No. 3.)
    Submitted October 24, 2016;
    decided November 17, 2016
   Reported below, 2016 NY Slip Op 86992(U).

Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceedings within the meaning of the Constitution. Motion for a stay dismissed as academic.


text:
    David Friedman, Appellant, v The Hebrew Home for the Aged at Riverdale, Respondent.
    Submitted July 5, 2016;
    decided November 17, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (see Kushlin v Bialer, 26 NY2d 748 [1970]).


text:
    David Friedman, Appellant, v The Hebrew Home for the Aged at Riverdale, Respondent.
    Submitted July 25, 2016;
    decided November 17, 2016
   Motion by New Yorkers for Patient & Family Empowerment et al. for leave to appear amici curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    David Friedman, Appellant, v The Hebrew Home for the Aged at Riverdale, Respondent.
    Submitted July 25, 2016;
    decided November 17, 2016
   Motion by New York State Trial Lawyers Association for leave to appear amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    In the Matter of John A. Lavender, II, Appellant, v Zoning Board of Appeals of the Town of Bolton et al., Respondents.
    Decided November 17, 2016
   Appeal, insofar as taken from that part of the Appellate Division order affirming the June 2013 Supreme Court judgment, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved; appeal otherwise dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the remaining portion of the Appellate Division order does not finally determine the proceeding within the meaning of the Constitution.


text:
    Rhonda Lewis et al., Appellants, v Robert Jutkowitz et al., Defendants, and William Gael et al., Respondents.
    Submitted July 25, 2016;
    decided November 17, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (see Paglia v Agrawal, 69 NY2d 946 [1987]).


text:
    Shelley Mizrahi-Srour, Respondent, v Albert Srour, Appellant.
    Submitted June 6, 2016;
    decided November 17, 2016
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    The People of the State of New York, Respondent, v Nicholas Brooks, Appellant.
    Submitted November 7, 2016;
    decided November 17, 2016
   Motion for poor person relief, for the purpose requested, denied.


text:
    The People of the State of New York, Respondent, v Aaron M. Martinez, Appellant.
    Submitted November 14, 2016;
    decided November 17, 2016
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Appellant, v Harold L. Petke, Respondent.
    Submitted October 24, 2016;
    decided November 17, 2016
   Motion for assignment of counsel granted and Richard V. Manning, Esq., 10 Cassidy Road, P.O. Box 273, Parishville, New York 13672 assigned as counsel to the respondent nunc pro tunc on the appeal herein.


text:
    The People of the State of New York, Respondent, v Michael E. Prindle, Appellant.
    Submitted October 31, 2016;
    decided November 17, 2016
   Motion by Legal Aid Society for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and an original and nine copies filed within seven days.

Judge Fahey taking no part.


text:
    The People of the State of New York, Appellant, v Dwight Smith, Respondent.
    Submitted October 31, 2016;
    decided November 17, 2016
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 120 Wall Street, 28th Floor, New York, NY 10005 assigned as counsel to the respondent on the appeal herein.


text:
    The People of the State of New York, Respondent, v Diane Word, Appellant. The People of the State of New York, Appellant, v Diane Word, Respondent.
    Decided November 17, 2016
   Reported below, 260 AD2d 196.

Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no civil appeal lies from the order entered in this criminal proceeding (see NY Const, art VI, § 3 [b]; CPLR 5601; CPL 450.90).


text:
    The People of the State of New York ex rel. Frank Monte, Appellant, v Warden Maxsolaine Mingo, et al., Respondents.
    Submitted August 1, 2016;
    decided November 17, 2016
   Motion for reargument denied [see 27 NY3d 1079 (2016)].


text:
    In the Matter of Martin J. Sawma, Appellant, v Thomas P. DiNapoli, as State Comproller, Respondent.
    Decided November 17, 2016
   Appeal, insofar as taken from the August 2016 Appellate Division order, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution; appeal, insofar as taken from the May 2016 Appellate Division order, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    [65 NE3d 1286, 43 NYS3d 251]
    Justin Nazario, Respondent, v 222 Broadway, LLC, et al., Respondents. 222 Broadway, LLC, et al., Third-Party Plaintiffs-Respondents, v Knight Electrical Services Corp., Third-Party Defendant-Appellant. (And Other Third-Party Actions.)
    Decided November 21, 2016

      APPEARANCES OF COUNSEL

      O’Connor Redd LLP, Port Chester {Amy L. Fenno of counsel), for third-party defendant-appellant.

      Arye, Lustig & Sassower, P.C., New York City (D. Carl Lustig, III of counsel), for Justin Nazario, respondent.

      Lawrence, Worden, Rainis & Bard, PC., Melville (Leslie McHugh of counsel), for 222 Broadway, LLC, and another, respondents/third-party plaintiffs-respondents.

      Cerussi & Spring, White Plains {Thomas F. Cerussi of counsel), for Lime Energy Co., respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be modified, without costs, by denying plaintiff’s motion for partial summary judgment on the issue of liability on his Labor Law § 240 (1) claim and remitting the case to the Appellate Division for consideration of the issues raised but not determined on the appeal to that Court, and, as so modified, affirmed, and the certified question should be answered in the negative.

Plaintiff is not entitled to summary judgment under Labor Law § 240 (1). While using an A-frame ladder, plaintiff fell after receiving an electrical shock. Questions of fact exist as to whether the ladder failed to provide proper protection, and whether plaintiff should have been provided with additional safety devices (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 287 [2003]; Barreto v Metropolitan Transp. Auth., 25 NY3d 426 [2015], rearg denied 25 NY3d 1211 [2015]). Defendants Lime Energy Co. and Jones Lang LaSalle Americas, Inc. were properly granted summary judgment on their contractual indemnification claims against Knight Electrical Services Corp.

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

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order, insofar as appealed from, modified, without costs, by denying plaintiffs motion for partial summary judgment on the issue of liability on his Labor Law § 240 (1) claim and remitting the case to the Appellate Division, First Department, for consideration of issues raised but not determined on the appeal to that Court, and, as so modified, affirmed, and certified question answered in the negative, in a memorandum.


text:
    [65 NE3d 1272, 43 NYS3d 237]
    The People of the State of New York, Respondent, v Rodolfo Hernandez, Appellant.
    Argued November 15, 2016;
    decided December 15, 2016

      APPEARANCES OF COUNSEL

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

      Michael E. McMahon, District Attorney, Staten Island {Anne Grady and Morrie I. Kleinbart of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted, after a jury trial, of one count each of sexual abuse in the first degree and endangering the welfare of a child for sexually touching a three-year-old girl on the bus defendant drove. On appeal, he argues that the trial court erred in allowing the child’s mother and father to testify about certain statements the child made to them shortly after the alleged abuse occurred and then several hours later at a hospital, both under the excited utterance exception to the hearsay rule.

That exception permits a court to admit an out-of-court statement made in response to a startling or upsetting event, if the circumstances surrounding the statement reveal that it was made while the declarant was under the stress of excitement and “lack[ed] the reflective capacity essential for fabrication” (see People v Johnson, 1 NY3d 302, 306 [2003]). The decision to admit hearsay as an excited utterance is left to the sound judgment of the trial court, which must consider, among other things, the nature of the startling event, the amount of time between the event and the statement, and the activities of the declarant in the interim (see People v Edwards, 47 NY2d 493, 497 [1979]). “Above all, the decisive factor is whether the surrounding circumstances reasonably justify the conclusion that the remarks were not made under the impetus of studied reflection” {id.).

We discern no error in the admission of the child’s initial statements to her mother and father as excited utterances. The evidence established that the child was in a highly emotional state when she first stepped off the bus and that she continued to cry inconsolably as she uttered the phrase “Señor Bus” to her mother and father at home and made a licking gesture with her tongue. Those statements were made within a half hour of the startling event, while the child was still under the stress of excitement, and therefore were properly admitted at trial (see People v Brown, 70 NY2d 513, 518 [1987]).

The child repeated the same phrase and gesture to her parents three hours later at a hospital and also pulled her mother’s hand to the child’s genital area. Even accepting defendant’s contention that the stress of excitement had sufficiently abated by the time the child made those later statements, any error in their admission was harmless (see People v Crimmins, 36 NY2d 230, 241-242 [1975]). Forensic testing confirmed the presence of defendant’s DNA in the child’s underwear, and the bus matron provided unrefuted testimony that defendant had altered his bus route in such a way that the child was alone with defendant for approximately 30 minutes on the day of the incident. Additionally, the child’s mother testified that the child ran into the house screaming and crying as soon as she got off the bus, and that the child’s underwear had been pulled down and were bunched up inside the leg of her pants. The emergency room doctor found redness and a sore on the child’s genital area that he believed were the result of external trauma, i.e., touching.

This and other evidence at trial provided overwhelming proof of defendant’s guilt, and there was no significant probability that the jury would have reached a different conclusion if the hearsay statements from the hospital had been excluded (see Kello, 96 NY2d at 743-744).

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

Order affirmed, in a memorandum.

       Because defendant did not object to the admission of the child’s statements on constitutional grounds, the proper standard of harmless error analysis is that of nonconstitutional trial error—i.e., “whether (1) proof of guilt was overwhelming; and (2) there was no significant probability that the jury would have acquitted had the proscribed evidence not been introduced” (People v Kello, 96 NY2d 740, 744 [2001]).


text:
    In the Matter of Advanced Therapy, OT, PT, SLP, Psychologist, Registered Professional Nurse (RN), PLLC, Appellant, v New York State Education Department, Respondent.
    Submitted August 15, 2016;
    decided October 25, 2016
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    Andrew Biaglow et al., Appellants-Respondents, v Elite Property Holdings, LLC, et al., Respondents-Appellants, et al., Defendant.
    Submitted August 8, 2016;
    decided October 25, 2016
   Motions for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of the Claim of Jeffrey Gawrys, Appellant. Medical Delivery Services, Respondent; Commissioner of Labor, Respondent.
    Submitted July 11, 2016;
    decided October 25, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Indus PVR LLC, Respondent, v MAA-Sharda, Inc., Appellant, Roshan Hospitality, Inc., et al., Defendants. Indus PVR LLC, Respondent, v MAA-Sharda, Inc., Appellant, Roshan Hospitality, Inc., et al., Defendants.
    (Appeal No. 1.)
    (Appeal No. 3.)
    Submitted August 1, 2016;
    decided October 25, 2016
   Reported below, 140 AD3d 1666, 1668.

Motion, insofar as it seeks leave to appeal from the Appellate Division order affirming the Supreme Court judgment, denied; motion for leave to appeal otherwise dismissed upon the ground that the remaining order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of 111-35 75th Ave. Owners Corp., Respondent, v Sarah Hendrix, Appellant, et al., Respondents.
    Submitted August 1, 2016;
    decided October 25, 2016
   Motion for reargument of motion for leave to appeal denied [see 27 NY3d 1053 (2016)].


text:
    The People of the State of New York, Respondent, v Oliver Berry, Also Known as Chris Tucker, Appellant.
    Submitted July 25, 2016;
    decided October 25, 2016
   Motion for reargument dismissed as untimely (see Rules of Ct of Appeals [22 NYCRR] § 500.24 [b]) [see 27 NY3d 10 (2016)].


text:
    In the Matter of Christian Urena, Appellant, v Anthony Annucci, Respondent.
    Submitted August 1, 2016;
    decided October 25, 2016
   Motion for reargument of motion for leave to appeal denied [see 27 NY3d 907 (2016)].