author: Abdus-Salaam, J. Stein, J. Fahey, J.

text:
    [59 NE3d 485, 37 NYS3d 750]
    Doctor Fred L. Pasternack, Appellant, v Laboratory Corporation of America Holdings, Also Known as LabCorp, et al., Respondents.
    Argued June 1, 2016;
    decided June 30, 2016

      Shapiro Arato LLP, New York City (Cynthia S. Arato and Daniel J. O’Neill of counsel), for appellant.

      Seyfarth Shaw LLP, Atlanta, Georgia {Frederick T. Smith of counsel), and Seyfarth Shaw LLP, New York City {Gina R. Merrill of counsel), for LexisNexis Occupational Health Solutions Inc. formerly known as ChoicePoint, Inc., respondent.

      Kelley Drye & Warren, LLP, New York City {Robert I. Steiner and Sarah L. Reid of counsel), for Laboratory Corporation of America Holdings, respondent.
   OPINION OF THE COURT

Abdus-Salaam, J.

In this action sounding in, among other things, negligence and fraud, plaintiff Fred Pasternack seeks to recover damages from defendants Laboratory Corporation of America Holdings (LabCorp) and ChoicePoint, Inc., arising from defendants’ alleged misconduct in performing and evaluating a random drug test that he was required to take as an airline pilot. We have accepted two certified questions from the United States Court of Appeals for the Second Circuit, asking us to determine (1) whether drug testing regulations and guidelines promulgated by the Federal Aviation Administration (FAA) and the Department of Transportation (DOT) create a duty of care for drug testing laboratories and program administrators under New York negligence law, and (2) whether a plaintiff may establish the reliance element of a fraud claim under New York law by showing that a third party relied on a defendant’s false statements resulting in injury to the plaintiff. We answer both questions in accordance with this opinion.

I

The underlying facts and procedural history are summarized as follows:

Plaintiff is a physician and part-time Northeastern Aviation Corporation airline pilot. He was required to submit to random drug testing pursuant to FAA regulations as part of its mandate to ensure “safety in air commerce and national security” (49 USC § 44701 [a] [5] [procedures for transportation workplace drug and alcohol testing programs]; see also 49 CFR part 40). ChoicePoint entered into a contract with Northeastern where it agreed to help administer Northeastern’s drug program, including performing the services of a medical review officer (MRO). LabCorp, which provides specimen collection and drug testing services for private entities, entered into a contract with ChoicePoint to perform those services for Northeastern. When performing their duties under these contracts, both ChoicePoint and LabCorp were required to comply with the DOT Regulations and the DOT’s Urine Specimen Collection Guidelines (collectively, the DOT Regulations and Guidelines). The stated purpose of the DOT Regulations “is to establish a program designed to help prevent accidents and injuries resulting from the use of prohibited drugs or the misuse of alcohol by employees who perform safety-sensitive functions in aviation” (14 CFR 120.3).

On June 1, 2007, plaintiff was notified by Northeastern that he had been selected for random drug testing. On June 5, 2007, at about 1:10 p.m., he appeared for drug testing at a LabCorp site located in Manhattan. The urine sample plaintiff first produced at the test site was an insufficient quantity for testing. This is referred to under the DOT Regulations as a “shy bladder” situation. The DOT Regulations and Guidelines set forth procedures to be followed in such a situation, which include urging the employee to drink up to 40 ounces of fluid distributed reasonably through a three-hour period, or until the employee has provided a sufficient urine specimen (49 CFR 40.193; United States Department of Transportation, Office of Drug and Alcohol Policy and Compliance, Urine Specimen Collection Guidelines [Dec. 2006]). At the time that plaintiff was tested, the DOT Guidelines provided that “[t]he collector must specifically tell the employee that he or she is not permitted to leave the collection site and if they do so, that it will be considered a refusal to test” (DOT Guidelines at 20 [Dec. 2006]).

According to the complaint, Theresa Montalvo, a Patient Services Technician for LabCorp, told plaintiff that he would need to produce another urine sample, but did not explain the shy bladder procedure to him or urge him to drink additional fluids, and instead told him to return to the waiting room. Plaintiff did return to the waiting room, but believed it was unlikely that he could produce a sufficient urine sample before needing to depart the collection site for a scheduled aviation medical examination he was performing. He told Montalvo that he needed to leave, but would return to complete the test. Montalvo did not inform him that leaving the collection site would be considered a “refusal to test.” She did tell him that she was required to notify Northeastern that he was leaving and asked when he would return. Plaintiff told her she was free to contact Northeastern and that he would return the next day. He returned to the LabCorp facility around 4:00 p.m. that same day, and Montalvo called Northeastern and obtained permission to take a second urine sample from plaintiff. She noted on the chain-of-custody form (CCF), which Northeastern had given plaintiff pursuant to the DOT Regulations, that he had left and returned and that Northeastern had approved the second collection. Upon his return, plaintiff produced an adequate sample, which tested negative for prohibited drugs.

Plaintiff’s CCF was later reviewed by an MRO at Choice-Point, who determined that because plaintiff had left the collection site before the test was completed, there had been a “refusal to test” under the DOT Regulations. ChoicePoint reported this determination to the FAA, which prompted the FAA to interview Montalvo regarding the circumstances surrounding the urine specimen collection. As alleged by plaintiff, during the interview and in her subsequent signed statement, Montalvo did not tell the FAA investigators that plaintiff had told her during the initial collection that he planned to return to complete his collection. In November 2007, by emergency order, the FAA revoked all of plaintiff’s airman certificates, finding that he had engaged in a refusal to test. It subsequently terminated plaintiff’s designation as an Aviation Medical Examiner (AME) for the FAA, which gave him the authority to conduct FAA-mandated examinations for pilots. Thus, he was unable to pilot any flights or function as an AME.

Plaintiff appealed the termination of his AME designation to the FAA and that appeal was denied. He also appealed the revocation of his airman certificates to the FAA. A hearing was held before an administrative law judge (ALJ) at which both plaintiff and Montalvo testified. Plaintiff claimed that he left the collection site with Montalvo’s acquiescence, while she testified that he rushed out of the facility before she could explain the shy bladder procedures to him. As previously noted, it was undisputed that Montalvo did not advise plaintiff that he would be deemed a “refusal to test” if he left the facility. The ALJ upheld the revocation, as did the National Transportation Safety Board (NTSB). Plaintiff appealed the NTSB’s decision to the Court of Appeals for the D.C. Circuit, which vacated the decision and remanded the matter to the NTSB, holding that the NTSB’s finding that Montalvo had been precluded from explaining the shy bladder procedure to plaintiff was not supported by substantial evidence (see Pasternack v National Transp. Safety Bd., 596 F3d 836 [2010]). In September 2010, the NTSB remanded the case to the ALJ, directing that the ALJ make the necessary credibility findings concerning the interaction between plaintiff and Montalvo. On remand, the ALJ again concluded that plaintiff had refused to test. The NTSB again affirmed. Plaintiff appealed to the D.C. Circuit, which ruled in his favor once more, holding that “substantial evidence does not support the NTSB’s determination that the collector did not impliedly give [plaintiff] permission to leave” and reversing the NTSB (Pasternack v Huerta, 513 Fed Appx 1, 2 [2013]). Subsequently, the FAA reinstated plaintiff’s airman certificates and AME designation and expunged the refusal to test from his record.

In June 2010, while his administrative appeal was still pending, plaintiff commenced this lawsuit to recover damages from LabCorp and ChoicePoint for the loss of his AME certification and airman certificates. The lawsuit alleged negligence and fraud in administering the test.

On August 1, 2011, the District Court granted ChoicePoint’s motion to dismiss (see Pasternack v Laboratory Corp. of Am., 2011 WL 3478732, 2011 US Dist LEXIS 88311 [SD NY, Aug. 1, 2011, No. 10-Civ-4426(PGG)]), concluding that plaintiff had not alleged any facts that supported a finding that ChoicePoint owed a duty of care to plaintiff. On September 6, 2012, the District Court granted plaintiff’s motion for leave to file a proposed second amended complaint as to LabCorp, but denied plaintiff’s motion for leave to amend his complaint as to Choice-Point, concluding that it would be futile (see Pasternack v Laboratory Corp. of Am., 892 F Supp 2d 540 [2012]). Plaintiff filed a second amended complaint as to LabCorp, asserting claims for negligence, gross negligence, negligent misrepresentation, fraud, and injurious falsehood. Subsequently, the District Court granted LabCorp’s motion to dismiss (Pasternack v Laboratory Corp. of Am., 2014 WL 4832299, 2014 US Dist LEXIS 137671 [SD NY, Sept. 29, 2014, No. 10-Civ-4426(PGG)]), holding that with respect to the negligence claims, under New York law, LabCorp had no duty of care to properly apply federal drug testing regulations and guidelines, and regarding the fraud claims, that under New York law, a fraud claim cannot be based on a false representation made to and relied upon by a third party whose reliance causes injury to the plaintiff. On appeal to the Second Circuit, that court certified the aforementioned questions of New York law to this Court (807 F3d 14 [2015]) and we accepted the certification of the questions (26 NY3d 1074 [2015]).

II.

The Negligence Claims

Plaintiff alleges that ChoicePoint was negligent in mishandling the review and evaluation of his laboratory results in violation of the DOT Regulations. Although he asserts that ChoicePoint violated numerous DOT Regulations, he cites two regulations in particular: 49 CFR 40.123 (e), which provides that the MRO “must act to investigate and correct problems where possible and notify appropriate parties . . . where assistance is needed”; and 49 CFR 40.355 (i), which provides that, except where the employee has refused to test on the basis of adulteration or substitution, the MRO “must not make a determination that an employee has refused a drug or alcohol test” and that the ability to make such a determination “is a non-delegable duty of the actual employer.” Plaintiff argues that ChoicePoint failed to investigate the facts of his urine specimen collection and that it wrongfully designated him as a “refusal to test,” despite the regulation’s provision that the MRO is not to make such a determination. Plaintiff asserts that this designation was the sole reason for the FAA’s revocation of his airman certificates and his AME designation.

With respect to LabCorp, plaintiff alleges that LabCorp failed to explain the “shy bladder” procedures and failed to inform him that leaving the collection site would or even could constitute a refusal to test, in contravention of 49 CFR 40.193 (b) and the DOT Guidelines.

In order to prevail on a negligence claim, “a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom” (Solomon v City of New York, 66 NY2d 1026, 1027 [1985]). In the absence of a duty, as a matter of law, there can be no liability (id. at 1028; see also Lauer v City of New York, 95 NY2d 95, 100 [2000] [“(w)ithout a duty running directly to the injured person there can be no liability in damages, however careless the conduct or foreseeable the harm”]). The definition and scope of an alleged tortfeasor’s duty owed to a plaintiff is a question of law (see Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 585 [1994]). As this Court observed in 532 Madison Ave. Gourmet Foods v Finlandia Ctr. (96 NY2d 280 [2001]), courts “fix the duty point by balancing factors, including the reasonable expectations of [the] parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability” (96 NY2d at 288 [internal quotation marks and citations omitted]).

The FAA does not provide a private right of action for violations of FAA drug testing regulations (see Drake v Laboratory Corp. of Am. Holdings, 458 F3d 48, 64 [2d Cir 2006]). Thus, any duty to plaintiff for violations of the DOT Regulations and Guidelines must be based on a New York State common-law negligence theory of liability.

We have recently addressed duty of care in the drug testing context in Landon v Kroll Lab. Specialists, Inc. (22 NY3d 1 [2013]). In Landon, a drug testing laboratory allegedly performed a toxicology test in violation of industry-wide standards and failed to confirm the test, resulting in an erroneous report of drug use for a probationer. We held that the probationer had sufficiently alleged a negligence cause of action against the laboratory for failing to exercise reasonable care in the testing of his biological sample, concluding that the laboratory had a duty of care to perform the probationer’s drug test “in keeping with relevant professional standards” (id. at 6-7).

Thus, in Landon we held that a drug testing laboratory can be liable to a test subject under the common law for negligent testing of a biological sample. We decline to extend Landon’s reasoning to impose a duty upon a laboratory to test subjects that requires the laboratory to adhere to aspects of the federal regulations and guidelines that do not implicate the scientific integrity of the testing process. We made clear in Landon that our holding regarding a duty of care owed by the laboratory to the plaintiff was limited to “th[o]se circumstances” — namely, a drug laboratory’s failure to adhere to professionally accepted scientific testing standards in the testing of the biological sample (id. at 7). It would be an unwarranted extension of Landon to recognize a duty to test subjects based upon the violation of ministerial federal regulations and guidelines unrelated to scientific integrity, especially when such regulations and guidelines are created to protect the public, not test subjects. Landon’s limited ruling regarding the duty of care owed by laboratories to ensure accurate testing procedures does not encompass every step of the testing process, whether that process is governed by federal regulations and guidelines, or otherwise (see e.g. Matter of New York City Asbestos Litig., 5 NY3d 486, 493 [2005] [“A specific duty is required because otherwise, a defendant would be subjected ‘to limitless liability to an indeterminate class of persons conceivably injured’ by its negligent acts”]; see also Braverman v Bendiner & Schlesinger, Inc., 121 AD3d 353, 355-357 [2d Dept 2014], lv denied 24 NY3d 913 [2015] [plaintiff drug treatment program participant who alleged that laboratory was negligent in reporting positive results to the drug courts without labeling the results to indicate for “clinical purposes only” sought an “unwarranted expansion of the duty set forth in Landon”]). Recognizing a duty of care for any violation of federal regulations and guidelines unrelated to the actual performance of scientific testing of the biological sample would result in an unacceptable “proliferation of claims, [and] the likelihood of unlimited or insurer-like liability” (see Madison Ave, 96 NY2d at 288).

In sum, the regulations and guidelines that are ministerial in nature and do not implicate the scientific integrity of the testing process do not create a duty of care for drug testing laboratories and program administrators under New York negligence law.

III.

The Fraud Claims

The second certified question requires us to decide whether third-party reliance can establish the reliance element of a fraud claim. Plaintiff alleges fraud against LabCorp, contending that Montalvo, LabCorp’s employee, made false statements to the FAA investigators, which they relied on to plaintiff’s detriment. Specifically, plaintiff points to Montalvo’s statement to the FAA investigators that plaintiff was on his cell phone and uncooperative during the test, making it impossible to warn him of the consequence of leaving the testing site without giving a sample, which statement the FAA relied on in revoking plaintiff’s airman certificates. We hold that under New York law, such third-party reliance does not satisfy the reliance element of a fraud claim.

The elements of a fraud cause of action consist of “ ‘a misrepresentation or a material omission of fact which was false and known to be false by [the] defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury’ ” (Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 178 [2011], quoting Lama Holding Co. v Smith Barney, 88 NY2d 413, 421 [1996]; see Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 559 [2009]). Federal courts applying New York law and the Appellate Division Departments have come to varying conclusions as to whether a plaintiff may state a fraud claim, despite the absence of reliance by the plaintiff on the alleged misrepresentations, where a non-plaintiff third party is alleged to have relied on the misrepresentations in a manner that caused injury to the plaintiff. The Second Circuit has held that “allegations of third-party reliance . . . are insufficient to make out a common law fraud claim under New York law” (City of New York v Smokes-Spirits.com, Inc., 541 F3d 425, 454 [2d Cir 2008], certified question answered 12 NY3d 616 [2009], revd and remanded on other grounds 559 US 1 [2010]; see Cement & Concrete Workers Dist. Council Welfare Fund, Pension Fund, Legal Servs. Fund & Annuity Fund v Lollo, 148 F3d 194, 196 [2d Cir 1998]; Shaw v Rolex Watch, U.S.A., Inc., 673 F Supp 674, 682 [SD NY 1987]). Some district courts have applied the Second Circuit’s rule (see Mid Atl. Framing, LLC v Varish Const., Inc., 117 F Supp 3d 145, 153 [ND NY 2015]; Ahluwalia v St. George’s Univ., LLC, 63 F Supp 3d 251, 270 [ED NY 2014], affd 626 Fed Appx 297 [2d Cir 2015]), while others have held that, under New York law, third-party reliance can support a fraud claim (see Prestige Bldr. & Mgt. LLC v Safeco Ins. Co. of Am., 896 F Supp 2d 198, 205 [ED NY 2012]; Chevron Corp. v Donziger, 871 F Supp 2d 229, 257 [SD NY 2012]).

Similarly inconsistent is the Appellate Division case law, with the majority of cases declining to recognize third-party reliance and a few outliers adopting the opposite view (compare Bynum v Keber, 135 AD3d 1066, 1068 [3d Dept 2016], Wildenstein v 5H&Co, Inc., 97 AD3d 488, 490 [1st Dept 2012], Briarpatch Ltd., L.P. v Frankfurt Garbus Klein & Selz, P.C., 13 AD3d 296, 297 [1st Dept 2004], lv denied 4 NY3d 707 [2005], and Warren v Forest Lawn Cemetery & Mausoleum, 222 AD2d 1059, 1059 [4th Dept 1995] [holding that a plaintiff cannot claim fraud based on third-party reliance], with Ruffing v Union Carbide Corp., 308 AD2d 526, 528 [2d Dept 2003], and Buxton Mfg. Co. v Valiant Moving & Stor., 239 AD2d 452, 454 [2d Dept 1997] [fraud may exist where a false representation is made to a third party, resulting in injury to the plaintiff]).

The cases that recognize third-party reliance cite favorably to Eaton Cole & Burnham Co. v Avery (83 NY 31, 35 [1880]). However, as noted by the District Court and Second Circuit here, Eaton is distinguishable from this case because in Eaton the third party acted as a conduit to relay the false statement to plaintiff, who then relied on the misrepresentation to his detriment (see also Bruff v Mali, 36 NY 200, 206 [1867]). Eaton and its progeny stand for the proposition that indirect communication can establish a fraud claim, so long as the statement was made with the intent that it be communicated to the plaintiff and that the plaintiff rely on it. Eaton does not support plaintiff’s claim here, because Montalvo’s statements were not relayed to plaintiff, and he did not rely on them. Plaintiff, in arguing that third-party reliance is sufficient to state a fraud claim under New York law, cites this Court’s 1876 decision in Rice v Manley (66 NY 82 [1876]). There, the plaintiff contracted to purchase a quantity of cheese, and the defendant, aware of the plaintiff’s contract, fraudulently induced the cheese vendor to deliver the cheese to him rather than the plaintiff. The defendant falsely told the vendor that the plaintiff no longer desired the cheese. We upheld a referee’s determination that the defendant was liable to the plaintiff for damages as a result of the fraud, observing that “it matters not whether the false representations be made to the party injured or to a third party, whose conduct is thus influenced to produce the injury” (id. at 87). Notably, as recognized by the District Court here, in Rice v Manley, we stated that only two elements were required to sustain a fraud cause of action: fraud and damage (see id. at 84). In more recent history, however, this Court has made clear that a fraud claim requires, in addition to damage, a material misrepresentation or omission, inducement, and reliance (see Mandarin Trading Ltd., 16 NY3d at 178; Eurycleia, 12 NY3d at 559; Lama Holding Co., 88 NY2d at 421; see also 2A NY PJI2d 3:20 at 184 [2016] [“Generally, a plaintiff cannot claim reliance on misrepresentation that defendant made to third parties” unless the representation was intended to be communicated to plaintiff and for plaintiff to rely on it]). Thus, the holding in Rice rests upon antiquated elements of a fraud claim, and cannot be read to permit third-party reliance under the contemporary elements of the claim which clearly require reliance on the part of the party claiming to be fraudulently induced.

Indeed, this Court has stated on a number of occasions that a fraud claim requires the plaintiff to have relied upon a misrepresentation by a defendant to his or her detriment. This view is both consistent with other rules governing fraud claims (see e.g. First Natl. State Bank of N.J. v Irving Trust Co., 91 AD2d 543, 544 [1st Dept 1982] [“(T)here can be no liability in fraud where the complaining party is, in advance, fully knowledgeable and apprised of those matters as to which the representations are alleged to have deceived”], affd 59 NY2d 991 [1983]), and logical insofar as the tort of fraud is intended to protect a party from being induced to act or refrain from acting based on false representations — a situation which does not occur where, as here, the misrepresentations were not communicated to, or relied on, by plaintiff. We, therefore, decline to extend the reliance element of fraud to include a claim based on the reliance of a third party, rather than the plaintiff.

Accordingly, the certified questions should be answered in accordance with this opinion.

Stein, J.

(dissenting in part). I agree with, and join in, the majority opinion insofar as the majority responds to the second certified question regarding third-party reliance in fraud claims. However, I join Judge Fahey’s dissent, for the reasons stated therein, with respect to the first certified question concerning the scope of the duty under Landon v Kroll Lab. Specialists, Inc. (22 NY3d 1 [2013]).

Fahey, J.

(dissenting). I respectfully dissent. I would reformulate the first certified question and answer it to say that, under New York common law, both a laboratory and a medical review officer (MRO) owe a duty of care to the subject of a drug test to conduct that procedure in keeping with professional standards. I would also reformulate the second certified question and answer it to say that, under New York common law, a plaintiff may establish the reliance element of a cause of action for fraud by showing that a third party justifiably relied on false statements or omissions of a defendant that were intended to influence the plaintiff.

The First Certified Question

A.

The first certified question asks “whether drug testing regulations and guidelines promulgated by the [Federal Aviation Administration (FAA)] and [Department of Transportation (DOT)] create a duty of care for drug testing laboratories and program administrators under New York negligence law” (Pasternack v Laboratory Corp. of Am. Holdings, 807 F3d 14, 24 [2d Cir 2015]). Before posing that question, in Drake v Laboratory Corp. of Am. Holdings (458 F3d 48 [2d Cir 2006]) the Second Circuit observed that through the Federal Aviation Act (FAAct) “Congress granted the FAA broad authority over aviation safety, including the power to adopt regulations that it ‘finds necessary for safety in air commerce and national security’ ” (Drake, 458 F3d at 56, quoting 49 USC § 44701 [a] [5]). In accordance with that directive, “in 1988, the FAA promulgated regulations mandating that all aviation-industry employees who perform safety-sensitive functions be subjected to random drug-testing” (Drake, 458 F3d at 56). Plaintiff is required to submit to mandatory drug testing pursuant to those regulations, which “incorporate by reference DOT regulations that set out . . . elaborate rules for conducting drug tests” (id. at 56-57). As the majority notes (see majority op at 824-825), those rules underlie this case.

Although its observations are instructive as to the regulatory backdrop to this matter, Drake is more important to my analysis for this conclusion that it drew: “the FAAct does not provide a private right of action for violations of FAA drug-testing regulations” (Drake, 458 F3d at 64). Based on that conclusion, I cannot agree with the majority that the Second Circuit now asks whether the common law of this state imposes upon those responsible for conducting FAA-mandated drug testing a duty to adhere to the regulations that establish the rules for performing such tests {see majority op at 825-826). In my view that question was basically answered through Drake’s determination that there is no private right of action for the breach of an FAA drug testing regulation.

Rather, the essence of the Second Circuit’s query is whether the common law of this state imposes upon those responsible for performing FAA-mandated drug testing a duty to handle such testing with reasonable care. Consequently, to provide appropriate guidance to the parties (see generally Beck Chevrolet Co., Inc. v General Motors LLC, 27 NY3d 379, 389 [2016]), I would reformulate the first certified question to ask:

Whether, under New York common law, entities that either perform an FAA-mandated drug test or review the results of such a test owe a duty of care to the subject of the test to conduct the test or to review the results of the test in keeping with relevant professional standards.

B.

As reformulated, I would answer the first certified question in the affirmative.

In Landon v Kroll Lab. Specialists, Inc. (22 NY3d 1 [2013]) we considered the question whether the plaintiff, who was subject to drug testing conducted by the defendant laboratory on behalf of a county as part of his probation, had stated a cause of action against the laboratory for the alleged negligent testing of his biological sample (see id. at 3). In furtherance of such testing, the plaintiff provided the laboratory with an oral sample, and he obtained an independent blood test as well to protect himself against a false positive. The blood sample “came back negative for illicit and controlled substances,” but the laboratory “detected the presence of cannabinoids in the oral sample” that exceeded a cutoff level of one nanogram (ng) per milliliter (ml) {id. at 4). Consequently, the laboratory generated a written report reflecting that the plaintiff had tested positive for marihuana, which, in turn, caused the county probation department to commence a violation proceeding against the plaintiff based on his alleged breach of the conditions of his probation precluding his use of that drug {see id.).

The violation proceeding eventually was terminated in the plaintiff’s favor, and he subsequently commenced an action against the laboratory based, in relevant part, on the theory that the laboratory negligently issued the report reflecting the positive test result. As alleged in the complaint, the cutoff level recommended by the manufacturer of the device by which the oral fluid was taken from the plaintiff was 3.0 ng/ml, whereas the standards of the United States Department of Health and Human Services Substance Abuse and Mental Health Services Administration (SAMHSA) recommended a cutoff level of 4.0 ng/ml. That is, pursuant to those standards, more than the 1.0 ng/ml of cannabinoids found by the laboratory was required to establish a positive result for that substance. The complaint further alleged that the laboratory ignored New York State Department of Health Laboratory and SAMHSA standards designed to guard against a false positive test result, and that the erroneous test results were the product of the laboratory’s systemic negligence in its substance abuse testing practices {see id. at 4-5).

The laboratory moved to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action. We concluded that the complaint was sufficient to withstand the motion (see Landon, 22 NY3d at 3) inasmuch as the plaintiff had alleged that the laboratory “did not exercise reasonable care in the testing of [the] plaintiff’s biological sample when [the laboratory] failed to adhere to professionally accepted testing standards [before] releas [ing] a report finding that [he] had tested positive for THC,” a psychoactive compound in marihuana (id. at 6). We subsequently clarified that the laboratory “had a duty to the [plaintiff] to perform his drug test in keeping with relevant professional standards” (id. at 6-7), which, importantly, was based upon our recognition of the “profound . . . consequences” of “the release of a false positive report” (id. at 6).

Said simply, Landon articulated a duty to act with reasonable care to prevent a false positive drug test result. There the duty applied to the laboratory responsible for the testing of the plaintiffs biological samples inasmuch as the laboratory was “in the best position to prevent false positive results” (id.; see Davis, 26 NY3d at 572 [“A critical consideration in determining whether a duty exists is whether the defendant’s relationship with either the tortfeasor or the plaintiff places the defendant in the best position to protect against the risk of harm” (internal quotation marks omitted)]).

Here the entities best positioned to prevent what plaintiff claims was essentially a false positive result are defendants, which, respectively, administered plaintiff’s drug test (defendant Laboratory Corporation of America Holdings [LabCorp]) and employed the MRO who certified the results of that examination (defendant ChoicePoint, Inc.). To conclude that defendants owed a duty to plaintiff to prevent the erroneous test result here is not to extend Landon (cf. majority op at 826), but merely to apply to this case its core teaching that those situated similarly to the laboratory there in question have a duty to act with reasonable care to prevent a false positive drug test result.

Defendants contend that this case is distinguishable from Landon in that the actions challenged here resulted in the allegedly negligent reporting of a refusal to test, as opposed to a false positive result in the strictest sense. This is not a rational basis for distinguishing Landon which, in my view, did not restrict the duty of care to “scientific” errors but, rather, more broadly imposed a standard of reasonable care with regard to the testing process and administration. Indeed, a negligent and erroneous determination that a subject refused to test causes the same harm as a false positive. This is clearly evidenced by the circumstances here, in which plaintiff was stripped of his qualifications and, as a result, allegedly lost significant employment.

Consequently, I would answer the first certified question, as reformulated, in the affirmative so as to say that a laboratory and an MRO owe a duty to the subject of a drug test to conduct that test in keeping with relevant professional standards which, in the FAA context, are defined by the regulations governing the drug testing process (see Drake, 458 F3d at 65 [a subject “may seek state-law remedies for violations of the federal regulations, (but) state law cannot enlarg(e) or enhanc(e) the regulations to impose burdens more onerous than those of the federal requirements” (internal quotation marks omitted)]). Contrary to the majority’s assertion, recognition that plaintiff’s claims here fall within the scope of the duty under Landon would not likely result in a proliferation of claims. First, the potential pool of plaintiffs is clearly and easily delineated and identified — namely, the duty runs to the individual test subject, the most obvious third party to be harmed by this type of alleged negligence. Second, to the extent the majority expresses concern that maintaining the Landon duty for violations of regulations other than those governing the “scientific integrity” of the test would open the floodgates (majority op at 826), such concern is also misplaced. To be sure, the regulations governing the testing process and administration are numerous. However, recognition of a duty to complete FAA drug testing with reasonable care, as informed by the regulations, would not relieve a plaintiff of his or her burden to demonstrate that the regulations were actually breached and that the violation of the regulations was causally related to his or her injuries. To that end, true “ministerial” regulations are unlikely to be sufficient to sustain a successful cause of action for negligence.

For the foregoing reasons, I disagree with the majority’s answer to the first certified question.

The Second Certified Question

The second question asks “whether a plaintiff may establish the reliance element of a fraud claim under New York law by showing that a third party relied on a defendant’s false statements resulting in injury to the plaintiff” (Pasternack, 807 F3d at 24). I agree with the majority that, at its core, that question asks “whether third-party reliance can establish the reliance element of a fraud claim” (majority op at 827). To provide appropriate guidance to the parties, I would reformulate the second certified question to ask:

Whether a plaintiff may establish the reliance element of a cause of action for fraud under New York law by showing that a third party relied on a defendant’s false statements resulting in injury to the plaintiff where the statements were made with the intent of influencing the plaintiff and causing injury.

As reformulated, I would answer the second certified question in the affirmative. That is, unlike the majority (cf. majority op at 827, 829), I would conclude that the reliance element of a cause of action for fraud may be established through evidence that a third party relied on the alleged misrepresentation if the misrepresentation was made with the intent of influencing the plaintiff and causing injury.

“The elements of a cause of action for fraud require [1] a material misrepresentation of a fact, [2] knowledge of its falsity, [3] an intent to induce reliance, [4] justifiable reliance by the plaintiff and [5] damages” (Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 559 [2009]). At issue is the reliance element, which speaks to the rule that “[t]he reliance must be justifiable in the sense that the party claiming to have been defrauded was justified both in believing the representation and in acting upon it” (2A NY PJI2d 3:20 at 192 [2016]). Inasmuch as “ There can be no liability in fraud where the complaining party is, in advance, fully knowledgeable and apprised of those matters as to which the representations are alleged to have deceived’ ” (First Natl. State Bank of N.J. v Irving Trust Co., 91 AD2d 543, 544 [1st Dept 1982], affd on op below 59 NY2d 991 [1983], quoting 200 E. End Ave. Corp. v General Elec. Co., 5 AD2d 415, 418 [1st Dept 1958], affd 6 NY2d 731 [1959]), “[t]he [relevant] question ... is whether the person claiming to have been deceived ‘knew or had reason to know’ the facts” (2A NY PJI2d 3:20 at 194 [2016], citing Angerosa v White Co., 248 App Div 425 [4th Dept 1936], affd 275 NY 524 [1937]).

There is another key component to the reliance element of a cause of action for fraud. At times we have suggested that the plaintiff, that is, the party claiming to have been defrauded, must have justifiably relied on the material misrepresentation of fact (see e.g. Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 178 [2011], quoting Lama Holding Co. v Smith Barney, 88 NY2d 413, 421 [1996] for the proposition that, “[generally, in a claim for fraudulent misrepresentation, a plaintiff must allege [, inter alia,] ‘a misrepresentation or a material omission of fact . . . made for the purpose of inducing the other party to rely upon it, [and] justifiable reliance of the other party on the misrepresentation or material omission’ ” [emphasis added]; Eurycleia Partners, LP, 12 NY3d at 659 [“The elements of a cause of action for fraud require . . . justifiable reliance by the plaintiff’ (emphasis added)]). At other times, however, our approach has been vague with respect to the reliance element inasmuch as we have declined to specifically say that it is the plaintiff that must have justifiably relied on the alleged misrepresentation (see e.g. Vermeer Owners v Guterman, 78 NY2d 1114, 1116 [1991]). The issue thus becomes whether a plaintiff may establish the reliance element of a cause of action for fraud where a third party is the recipient of the misstatement or omission. In my view, the reliance element of a cause of action for fraud may be established by showing the reliance of a third party on false statements made by a defendant if it is established that the defendant intended for those statements to influence the plaintiff.

That conclusion — that third-party reliance may support a cause of action for fraud where there is an intent on the part of the defendant that the misrepresentation or omission influence the plaintiff through the proxy of the third party — is compatible with existing case law. It is true that the Appellate Division, First Department, has ruled that a plaintiff “[generally . . . cannot claim reliance on misrepresentations a defendant made to third parties” to establish a cause of action for fraud (Wildenstein v 5H&Co, Inc., 97 AD3d 488, 490 [1st Dept 2012]), and the Fourth Department has taken a similar approach (see Warren v Forest Lawn Cemetery & Mausoleum, 222 AD2d 1059, 1059 [4th Dept 1995] [“Plaintiff is not a proper party to allege fraud because no misrepresentation was made to him, nor did he allege that he relied on any misrepresentation”]). The Second Department has at times taken the same approach (see Garelick v Carmel, 141 AD2d 501, 502 [2d Dept 1988] [“to plead a valid cause of action sounding in fraud, the complaint must set forth all of the elements of fraud including the making of material representations by the defendant to the plaintiff”]), but its jurisprudence also provides that a defendant may be liable for fraud based on false statements made to a governmental agency that result in harm to a third party (see Buxton Mfg. Co. v Valiant Moving & Stor., 239 AD2d 452, 453-454 [2d Dept 1997] [holding that the defendant could be liable for fraud for false statements made to and relied on by the Department of Agriculture (DOA), resulting in injury to plaintiff; the statements at issue caused the DOA to disburse funds that, absent the disputed statements, would have been used to pay the plaintiff’s outstanding claims]; see also Ruffing v Union Carbide Corp., 308 AD2d 526, 528 [2d Dept 2003] [citing Buxton with approval]).

Although the Second Department’s decision in Buxton does not specifically say that the defendant’s false representation to a third party was made with the intent to influence the plaintiff, the “exception” to the normal reliance rule in that case is natural. Buxton’s conclusion that “[f]raud . . . may . . . exist where a false representation is made to a third party, resulting in injury to the plaintiff” (Buxton, 239 AD2d at 454) is based in part on this Court’s decision in Eaton Cole & Burnham Co. v Avery (83 NY 31 [1880]). In Eaton, an action for deceit was supported by allegations of false representations “made [to a mercantile agency] with the intent that they should be communicated to and believed by [the plaintiff, who was] interested in ascertaining the pecuniary responsibility of” another business for the purpose of determining whether to deliver goods to that business (id. at 33).

Eaton was also cited by the First Department in Desser v Schatz (182 AD2d 478 [1st Dept 1992]) for the proposition that the fact “that the false representation was not made directly to [the] plaintiff” was “of no moment” with respect to the allegedly fraudulent representation there at issue (id. at 479-480). So too was Eaton referenced by the Third Department in By num v Keber (135 AD3d 1066, 1068 [3d Dept 2016]), where that Court recognized the third-party reliance doctrine and suggested that a misrepresentation made for the purpose of being communicated to the plaintiff or with the intent of reaching and influencing the plaintiff may support a cause of action for fraud. Moreover, Eaton is consistent with Bruff v Mali (36 NY 200, 206 [1867]), where this Court ruled that “defendants[,] having issued the false certificates of stock authenticated by them as genuine, and cast them upon the market with fraudulent intent, are liable to every holder to whose hands they may come by fair purchase,” and compatible with Rice v Manley (66 NY 82, 87 [1876]), where we said that “[t]he mere forms adopted for the perpetration of frauds are of little importance; it matters not whether the false representations be made to the party injured or to a third party, whose conduct is thus influenced to produce the injury, or whether it be direct or indirect in its consequences.”

Perhaps Prosser said it best:

“while [a] defendant is not required to investigate or otherwise guard against the possibility that his [or her] statements may come into the hands of strangers and affect their conduct, his [or her] responsibility [for those statements] should at least extend to those who might reasonably be expected to assume from appearances that the representation was intended to reach them” (Prosser & Keeton, Torts, § 107 at 745 [5th ed 1984] [emphases added]).

In practice, to reject the third-party reliance doctrine is to facilitate the commission of fraud by straw man and to ease the practice of deceit. Consequently, I respectfully disagree with the majority that a plaintiff cannot meet the reliance element of a cause of action for fraud through a third party’s reliance on a misrepresentation (see majority op at 829). I would reformulate the second certified question and answer it to say that a plaintiff may establish the reliance element of a cause of action for fraud through evidence that a third party relied on the defendant’s alleged misrepresentation if that misrepresentation was made with the intent of influencing the plaintiff and causing injury.

Chief Judge DiFiore and Judges Pigott and Garcia concur; Judge Stein dissents in part in an opinion; Judge Fahey dissents in an opinion in which Judge Rivera concurs.

Following certification of questions by the United States Court of Appeals for the Second Circuit and acceptance of the questions by this Court pursuant to section 500.27 of the Rules of the Court of Appeals (22 NYCRR 500.27), and after hearing argument by counsel for the parties and consideration of the briefs and the record submitted, certified questions answered in accordance with the opinion herein.

      . The DOT Guidelines have since been revised to state that
      “there is no requirement for the collector to inform the employee in a shy bladder situation that failure to remain at the collection site or otherwise fails to cooperate with the testing process constitutes a refusal. It is a best practice for the collector to inform the employee that such behavior could lead an employer to determine that a refusal occurred” (United States Department of Transportation, Office of Drug and Alcohol Policy and Compliance, Urine Specimen Collection Guidelines at 21 [July 2014], available at https://www.transportation.gov/sites/dot.gov/ files/docs/Urine_Specimen_Collection_Guidelines_July3_ 2014_ A.pdf).

      . The Sixth Circuit has observed that “[t]his regulatory scheme does not evince a concern for the protection of [employees] who believe that they have been aggrieved through the drug testing process” (Parry v Mohawk Motors of Michigan, Inc., 236 F3d 299, 309 [6th Cir 2000]).

      . Accordingly, plaintiff’s proposed reformulation of the certified question to ask whether the common-law duty of care that this Court recognized in Landon applies to FAA mandated drug tests, provides plaintiff no succor.

      . The recast first certified question omits reference to “drug testing regulations and guidelines promulgated by the FAA and DOT” (Pasternack, 807 F3d at 24) by design. The threshold question of duty — or responsibility — in this instance is one for the courts and turns on an analysis of law (see Davis v South Nassau Communities Hosp., 26 NY3d 563, 572 [2015]; Purdy v Public Adm’r of County of Westchester, 72 NY2d 1, 8 [1988], rearg denied 72 NY2d 953 [1988]), not of regulations and guidelines. Once it is determined that a duty exists, the secondary question whether that responsibility has been breached may be answered by, among other things, evidence of the violation of pertinent rules or regulations (see generally Bauer v Female Academy of Sacred Heart, 97 NY2d 445, 454 [2002]; Elliott v City of New York, 95 NY2d 730, 734 [2001]; Landry v General Motors Corp., Cent. Foundry Div., 210 AD2d 898, 898 [4th Dept 1994]). To that end, in the context of this case the question of compliance with the FAA and DOT regulations and guidelines becomes relevant only if it is determined that defendants owed a duty to plaintiff to properly conduct the drug test.

      . While the majority is correct that the primary aim of the drug testing procedures is to ensure the safety of the public, the MRO process is structured, at least in part, to provide safeguards to protect the employee test subject from the consequences of an erroneous result or determination (see Spiker v Sanjivan PLLC, 2013 WL 5200209, *15, 2013 US Dist LEXIS 131985, *34-38 [D Ariz, Sept. 16, 2013, No. CV-13-00334(PHX/GMS)]).

      . I express no opinion as to whether the complaint or evidence is sufficient with respect to these elements.

      . Fraud, of course, is an intentional tort (see generally Simcuski v Saeli, 44 NY2d 442, 451 [1978]; PJI 3:20) and, as noted, one of its elements is “intent to induce reliance” (Eurycleia Partners, LP, 12 NY3d at 559). It follows that, where a plaintiff alleges that a third party, not the plaintiff, justifiably relied on a material misrepresentation or omission, the plaintiff should be required to establish that the defendant intended for the misrepresentation or omission to influence the plaintiff.

      . I take no position with respect to the majority’s belief that “Eaton does not support plaintiff’s claim here” (majority op at 828). In my view, our present task is not to determine whether the law supports plaintiff’s case, but “to provide certainty to and settlement of [this state] law issue [ ]” (Bocre Leasing Corp. v General Motors Corp. [Allison Gas Turbine Div.], 84 NY2d 685, 691 [1995]).


source: Caselaw Access Project

license: Public Domain

text:
    [48 NE3d 960, 28 NYS3d 679]
    Nancy Cruz, Respondent, v Bronx Lebanon Hospital Center, Appellant.
    Decided March 24, 2016

      APPEARANCES OF COUNSEL

      Mauro Lilting Naparty LLP, Woodbury (Caryn L. Lilting of counsel), for appellant.

      Burns & Harris, New York City (Blake G. Goldfarb and Judith F. Stempler of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs. The Appellate Division correctly determined that legally sufficient evidence supported the jury’s finding that defendant had constructive notice of the alleged defect.

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


text:
    [48 NE3d 958, 28 NYS3d 677]
    In the Matter of Kenneth S., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Argued February 17, 2016;
    decided March 24, 2016

      APPEARANCES OF COUNSEL

      Seymour W. James, Jr., The Legal Aid Society, New York City (Raymond E. Rogers and Tamara A. Steckler of counsel), for appellant.

      Zachary W. Carter, Corporation Counsel, New York City (Ronald E. Sternberg and Richard Dearing of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

The initial detention of appellant was lawful on the basis of the police officer’s authority to detain a suspected truant (see Matter of Shannon B., 70 NY2d 458, 462 [1987]). Appellant relies on People v Reid (24 NY3d 615 [2014]), but that decision, which analyzed a search incident to lawful arrest with reference to the timing of an officer’s intent to arrest, does not apply to the legality of the detention here. Whether the officer who detained appellant intended to transport him to the precinct or to a Department of Education facility is not relevant to the lawfulness of the initial detention. Therefore, we need not decide whether it would have been lawful for the police officers to take appellant to the precinct as a truant.

After the initial detention, appellant’s bag produced a distinctive noise when it came into contact with the police vehicle, which one of the officers recognized as the sound a gun makes when it strikes a motor vehicle (see generally Matter of Gregory M., 82 NY2d 588, 591 [1993]). Appellant gave evasive answers when asked what had caused the sound. The officers, who knew that appellant had previously been arrested for robbery, asked appellant to remove the backpack. Appellant complied, but he appeared nervous after he gave up his bag. Upon taking possession of the backpack, one of the officers felt what seemed to be a gun in an exterior pocket.

Under these circumstances, even assuming that this amounted to an investigative touching, there is a view of the evidence supporting the Appellate Division’s determination that the officers had a reasonable suspicion that appellant was armed.

When the touching revealed the shape of a gun in the bag, appellant was arrested. Appellant became agitated and upset, and resisted being handcuffed, such that two officers were required to handcuff him. Notably, the officers knew that on the occasion of appellant’s prior arrest he had started to walk away while being handcuffed. By this time, a crowd had gathered, yelling at the officers, who placed appellant in their police vehicle. Once in the vehicle, one of the officers opened and searched the backpack. He found what was later confirmed to be an air pistol. Significantly, the unmarked police vehicle had no partition, and the officer who searched the bag was seated next to appellant on the backseat.

In these circumstances, there is record support for the conclusion that the officers reasonably believed that appellant might gain possession of a weapon, so that exigent circumstances — a legitimate concern about the safety of the arresting officers— justified the warrantless search of appellant’s backpack.

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

Order affirmed, without costs, in a memorandum.


text:
    [48 NE3d 960, 28 NYS3d 679]
    Douglas L. Leight et al., Plaintiffs, and John H. Masten, Appellant, v W7879 LLC et al., Respondents.
    Decided March 24, 2016
    APPEARANCES OF COUNSEL

      Collins, Dobkin & Miller LLP, New York City (Seth A. Miller of counsel), for appellant.

      Kucker & Bruh, LLP, New York City (Patrick K. Munson of counsel), for respondents.

      Himmelstein, McConnell, Gribben, Donoghue & Joseph, New York City (.Ronald S. Languedoc of counsel), for Metropolitan Council on Housing, 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 not answered upon the ground that it is unnecessary. Plaintiff John H. Masten failed to establish that his apartment, which was deregulated in 2000 by an unchallenged order of the Division of Housing and Community Renewal, became re-regulated when he executed a renewal lease at market rate.

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


text:
    [48 NE3d 960, 28 NYS3d 679]
    PAF-PAR LLC, Appellant, v Michael Silberberg et al., Respondents.
    Argued February 18, 2016;
    decided March 24, 2016
    APPEARANCES OF COUNSEL

      Pryor Cashman LLP, New York City (William L. Charron and Vanessa Costantini of counsel), for appellant.

      Tannenbaum Helpern Syracuse & Hirschtritt LLP, New York City (Vincent J. Syracuse and Maryann C. Stallone of counsel), and Stahl & Zelmanovitz, New York City {Joseph Zelmanovitz of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs. In this action pursuant to CPLR 3213, PAF-PAR LLC failed to demonstrate standing to maintain the action.

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


text:
    [50 NE3d 224, 30 NYS3d 600]
    The People of the State of New York, Respondent, v Nelson Miranda, Appellant.
    Argued February 11, 2016;
    decided March 24, 2016

      APPEARANCES OF COUNSEL

      Seymour W. James, Jr., The Legal Aid Society, New York City (.Frances A. Gallagher of counsel), for appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City (Andrew E. Seewald and Alan Gadlin of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Term should be affirmed.

Defendant made a motion to suppress physical evidence “seized from his person” on the basis that the property seized was the fruit of an unlawful arrest. At the conclusion of the suppression hearing, the court found probable cause for the arrest based on the officers’ “observations over a nearly 30-minute period,” during which defendant attempted to damage the locks on three different bicycles using a tool in a “sawing” motion. As one officer stopped defendant, defendant dropped a hacksaw. The officer put defendant’s hands on a car, handcuffed him, and performed an initial pat down for the safety of the officers and felt a bag on his person underneath his coat. The officers searched the satchel and found pliers, screwdrivers and rubber gloves. The hearing court concluded that the search was incident to a lawful arrest.

“CPL 470.05 (2) provides that a question of law regarding a ruling is presented in a criminal proceeding ‘when a protest thereto was registered, by the party claiming error, at [a] time . . . when the court had an opportunity of effectively changing the same . . . or if in response to a protest by a party, the court expressly decided the question raised on appeal’ ” (People v Graham, 25 NY3d 994, 996 [2015]).

The issue argued on this appeal is whether the warrantless search of defendant’s satchel was unlawful as beyond the scope of a search incident to arrest. In particular, defendant contends that the exigencies that existed at the time of the arrest no longer existed at the time of the search because he was handcuffed and the seizure of the satchel was outside of a permissible full search of his person incident to arrest.

Here, the hearing court did not expressly decide, in response to protest, the issues now raised on appeal. The issue at the suppression hearing was whether the officers had probable cause to arrest defendant. The hearing court’s mere reference to “search incident to a lawful arrest” is insufficient to preserve defendant’s current arguments for this Court’s review.

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

Order affirmed, in a memorandum.


text:
    [50 NE3d 222, 30 NYS3d 598]
    Spoleta Construction, LLC, Respondent, v Aspen Insurance UK Limited c/o Aspen Specialty Insurance Management Company, Appellant, et al., Defendants.
    Argued February 16, 2016;
    decided March 24, 2016

      APPEARANCES OF COUNSEL

      Lewis Brisbois Bisgaard & Smith LLP, New York City (Stephanie A. Nashban of counsel), for appellant.

      White Fleischner & Fino, LLP, New York City (Janet P. Ford of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff Spoleta Construction seeks a declaration that defendant Aspen Insurance UK Limited c/o Aspen Specialty Insurance Management Company is obligated to defend and indemnify Spoleta in a personal injury action commenced by an employee of Spoleta’s subcontractor, Hub-Langie Paving, Inc. The subcontract required that Spoleta be named as an additional insured on Hub-Langie’s commercial general liability insurance policy, and that Hub-Langie defend and indemnify Spoleta for all claims of bodily injury or physical injury to property arising out of Hub-Langie’s work. Shortly after receiving notice of the injury to Hub-Langie’s employee, Spoleta’s insurer sent a letter to Hub-Langie about the claim, seeking the contact information for Hub-Langie’s insurer and its insurance policy number, stating that Hub-Langie had agreed to defend and indemnify Spoleta and hold it harmless, and requesting that Hub-Langie “place [its] insurance carrier on notice of this claim so that they m[a]y do their own investigation of this claim.” Hub-Langie’s broker forwarded the letter to Aspen — as its insurer — along with a general liability notice of occurrence/claim form describing the employee’s injury. Hub-Langie also sent a copy of the subcontract at Aspen’s request.

Approximately three months later, Hub-Langie’s employee commenced the underlying action against Spoleta and the property owner, seeking to recover for his injuries. Spoleta’s counsel notified Aspen thereof, by letter, and indicated that Spoleta had not yet received a response to its previous request for defense and indemnification. This time, counsel expressly stated that Hub-Langie was required to defend and indemnify Spoleta and name it as an additional insured, and included a certificate of insurance demonstrating that Spoleta was named as an additional insured on the policy that Aspen issued to Hub-Langie. Aspen denied coverage due to late notice because, in its initial letter, Spoleta “framed” itself only as a claimant against Hub-Langie, not as an additional insured of Aspen, and coverage had been denied to Hub-Langie for unrelated reasons.

Spoleta then commenced this declaratory judgment action against Aspen, among others. In lieu of answering, Aspen moved to dismiss the complaint based on documentary evidence pursuant to CPLR 3211 (a) (1). Supreme Court granted the motion. However, on Spoleta’s appeal, the Appellate Division reversed, holding that the documentary evidence proffered did not establish a defense to Spoleta’s claim as a matter of law (119 AD3d 1391, 1394 [2014]). The Appellate Division, therefore, denied Aspen’s motion and reinstated the complaint against it (see id. at 1391). The Court thereafter certified the following question: “Was the order of this Court entered July 11, 2014, properly made?”

At the relevant time,

“the rule in New York [was] that where a contract of primary insurance require [d] notice ‘as soon as practicable’ after an occurrence, the absence of timely notice of an occurrence [constituted] a failure to comply with a condition precedent which, as a matter of law, vitiate [d] the contract. . . [and] [n]o showing of prejudice [was] required” (Argo Corp. v Greater N.Y. Mut. Ins. Co., 4 NY3d 332, 339 [2005]).

The Appellate Division, therefore, properly stated the issue as whether Spoleta’s initial letter — forwarded to Aspen by Hub-Langie’s broker at Spoleta’s request — constituted notice of an “occurrence” under the policy issued by Aspen. The pertinent notice provision of the policy stated: “You must see to it that [Aspen is] notified as soon as practicable of an ‘occurrence’ or an offense which may result in a claim.” Notice was to include, to the extent possible: “(1) How, when and where the ‘occurrence’ or offense took place; (2) The names and addresses of any injured persons and witnesses; and (3) The nature and location of any injury or damage arising out of the ‘occurrence’ or offense.”

We reject Aspen’s argument that the documentary evidence established as a matter of law that Spoleta did not timely see to it that Aspen was notified of an occurrence. Aspen claims that it interpreted Spoleta’s initial letter as seeking only a defense and indemnity from Hub-Langie pursuant to the indemnification provision of the subcontract because Spoleta did not expressly state that it was seeking coverage as an additional insured. However, the letter itself did not identify the indemnification provision of the subcontract as the basis for the communication — it simply requested a defense and indemnity under the contract without specifically invoking either the indemnification or additional insurance provisions. Moreover, the letter requested that Hub-Langie “place [its] insurance carrier on notice of this claim” (emphasis added) and provided information about the identity of the injured employee, as well as the date, location and general nature of the accident. That is, in addition to requesting that the insurer be put on notice, the letter provided the details that the policy required to be included by an insured in notice of an occurrence.

Under these circumstances, it cannot be said that the “documentary evidence submitted conclusively established] a defense to the asserted claims as a matter of law” (Beal Sav. Bank v Sommer, 8 NY3d 318, 324 [2007]; see Leon v Martinez, 84 NY2d 83, 88 [1994]). Accordingly, the Appellate Division properly denied Aspen’s motion and reinstated the complaint. Aspen’s remaining arguments have been considered and determined to be lacking in merit.

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

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


text:
    [50 NE3d 225, 30 NYS3d 601]
    In the Matter of New York State Correctional Officers and Police Benevolent Association, Inc., et al., Appellants, v Governor’s Office of Employee Relations et al., Respondents.
    Argued February 9, 2016;
    decided March 29, 2016

      APPEARANCES OF COUNSEL

      Sheehan Green Golderman & Jacques LLP, Albany {Erin N. Parker of counsel), for appellants.

      Eric T. Schneiderman, Attorney General, Albany {Laura Etlinger, Barbara D. Underwood and Andrea Oser of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

Petitioner Thomas Tierney was employed by respondent Office of Mental Health (OMH) as a Safety and Security Officer 2 (SS02). He was assigned to the Hudson River Psychiatric Center in Dutchess County and represented by petitioner New York State Correctional Officers and Police Benevolent Association, Inc. (NYSCOPBA). The position of SS02 is a salary grade 15 position. In June 2011, when the Chief Safety and Security Officer (CSSO) of the Hudson River facility transferred to another facility, Tierney was advised that he would be serving as Acting CSSO. He served in that capacity until the facility closed in January 2012.

In August 2011, Tierney filed an out-of-title work grievance with OMH, in accordance with the three-step review process as outlined in the collective bargaining agreement, seeking additional compensation (a salary grade of 20) for the duties he performed as Acting CSSO. In his grievance form, he claimed that he was performing the work of a CSSO by overseeing day-to-day operations, attending committee and subcommittee meetings, compiling Environment of Care Committee reports, overseeing vendors, generating reports, conducting TIMR conference calls, monitoring and tracking overtime and adjusting day schedules to minimize usage. He also stated that he supervised two Safety and Security Officers (SSOls) and one SSOl trainee.

Step 1 of the grievance process, which is review at the facility level, is customarily conducted by the CSSO. Because Tier-ney was acting in that capacity, this step was bypassed. At step 2, which was OMH’s review of the grievance, OMH did not dispute that Tierney was performing the tasks detailed in his grievance form. OMH sustained the grievance and noted that under the terms of the NYSCOPBA contract, monetary awards for out-of-title grievances can only be made retroactive to 15 calendar days prior to the certified mailing of the grievance. Because, according to OMH, “[o]nly the Director of the Governor’s Office of Employee Relations [GOER] has the authority to issue monetary awards,” OMH requested that the Director of Classification and Compensation at the Department of Civil Service (DCC) affirm the decision and take appropriate action.

At step 3 of the review, where GOER seeks an opinion from DCC as to whether the grieved duties are substantially different from those appropriate to the title to which the employee is certified, DCC undertook its own comparison of the duties and responsibilities of CSSOs and SS02s, and, finding that the grieved duties were consistent with the SS02 title, denied the grievance. Specifically, it found that SS02s are working supervisors responsible for all the activities of SSOls, and that the duties performed by Tierney as Acting CSSO were consistent with those activities. DCC also detailed some of the duties that are assigned to CSSOs and that would have been out-of-title for an SS02 but were not included in Tierney’s grievance, such as supervising and directing all safety and security personnel, reviewing all marginal and unsatisfactory employee ratings, developing protocols and education programs that address a safe, secure and therapeutic environment, maintaining safety equipment and records, and directing the enforcement of the New York State Uniform Fire Prevention and Building Code. GOER adopted the findings of DCC and denied the grievance.

In his CPLR article 78 petition, Tierney alleged, in sum and substance, that in addition to the duties he included in his grievance form, he performed the out-of-title duties detailed by DCC in its decision. Those additional duties were not included in the grievance form and apparently were not considered by OMH. Accordingly, they were not considered by the motion court or the Appellate Division (see Matter of Rizzo v New York State Div. of Hous. & Community Renewal, 6 NY3d 104, 110 [2005] [“judicial review of administrative determinations is confined to the facts and record adduced before the agency”] [brackets omitted]). The motion court concluded that GOER’s determination that petitioner’s responsibilities as an Acting CSSO were substantially similar to the job description of an SS02 was not arbitrary and capricious and dismissed the proceeding. A divided Appellate Division affirmed (126 AD3d 1267 [3d Dept 2015]), and we now affirm.

Where respondents’ determination “is supported by a rational basis, and is neither arbitrary nor capricious, it will not be disturbed” (Matter of Nehorayoff v Mills, 95 NY2d 671, 675 [2001]). Civil Service Law § 61 (2) proscribes the assignment of an employee to “perform the duties of any position unless he [or she] has been duly appointed, promoted, transferred or reinstated to such position” other than when those duties are performed on a temporary emergency basis. There was evidence in the record to support the determination that Tier-ney was performing duties that were consistent with, and a natural extension of, his title as an SS02. Thus, here, we do not have the combination of out-of-title work and the work being performed for an extended period of time (cf. Matter of Sprague v Governor’s Off. of Empl. Relations, 13 AD3d 849 [3d Dept 2004]).

The conclusion reached by DCC and adopted by GOER is not arbitrary or capricious simply because it differs from the conclusion of OMH. In sum, GOER’s determination that Tier-ney was performing duties consistent with his position as an SS02 and was not performing the key distinctive duties of the CSSO position is rationally based.

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

Order affirmed, with costs, in a memorandum.

       TIMR refers to testing, inspection, maintenance and repair/replacement contracts.


text:
    Acquest Wehrle, LLC, Respondent-Appellant, v Town of Amherst, Appellant-Respondent.
    Decided March 24, 2016
   Appeals dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Ambac Assurance Corporation et al., Appellants, v Countrywide Home Loans, Inc., et al., Defendants, and Bank of America Corp., Respondent.
    Submitted March 14, 2016;
    decided March 24, 2016
   Motion by New York State Trial Lawyers Association for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    In the Matter of Celso L. Castillo, Appellant, v John B. Latella, Respondent.
    Submitted December 14, 2015;
    decided March 24, 2016
   Motion for reargument of motion for leave to appeal denied [see 26 NY3d 996 (2015)].

Chief Judge DiFiore and Judge Garcia taking no part.


text:
    City of New York, Respondent, v Kris Gounden, Defendant. Posr A. Posr, Nonparty Appellant.
    Decided March 24, 2016
   Appeal, insofar as taken from the March 2015 Appellate Division order, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that such order does not finally determine the action within the meaning of the Constitution; appeal, insofar as taken from the August 2015 Appellate Division order, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that appellant is not a party aggrieved (see CPLR 5511).


text:
    Concerned Home Care Providers, Inc., Appellant, v New York State Department of Health et al., Respondents.
    Decided March 24, 2016
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Kieran G. Cunningham et al., Appellants, v Security Mutual Insurance Company, Respondent.
    Decided March 24, 2016
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies from the order of County Court affirming the Ithaca City Court judgment (see NY Const, art VI, § 3 [b]; CPLR 5601).


text:
    Bernard H. Glatzer, Appellant, v Michael F. Hanley Moving & Storage, Inc., et al., Respondents.
    Decided March 24, 2016
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Andrew J. Hain, Individually and as Executor of Holly J. Hain, Deceased, Respondent, v Angela J. Jamison et al., Appellants, and Drumm Family Farm, Inc., Respondent.
    Submitted March 21, 2016;
    decided March 24, 2016
   Motion by Nicholas Rivers for leave to file a brief amicus curiae on the appeal herein denied. Motion for poor person relief dismissed as academic.


text:
    Nella Manko, Appellant, v Lenox Hill Hospital, Respondent.
    Decided March 24, 2016
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the orders appealed from do not finally determine the action within the meaning of the Constitution.


text:
    Linda P. Nash, Respondent, v Port Authority of New York and New Jersey, Appellant.
    Decided March 24, 2016
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that it does not lie. The terms of this Court’s remittitur were not violated and an appeal therefore does not lie as of right.

Judge Abdus-Salaam taking no part.


text:
    In the Matter of Tatiana Neroni, an Attorney, Appellant. Grievance Committees of the Fourth Judicial Department, Respondent.
    Submitted January 11, 2016;
    decided March 24, 2016
   Motion, insofar as it seeks disqualification of Judges Stein and Fahey, dismissed as academic; motion, insofar as it seeks disqualification of Chief Judge DiFiore, dismissed upon the ground that the Court of Appeals has no authority to entertain the motion made on nonstatutory grounds. The application seeking recusal of the Chief Judge is referred to her for individual consideration and determination. Chief Judge DiFiore denies the referred motion for recusal. Motion for ancillary relief denied. On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved.

Judges Stein and Fahey taking no part.


text:
    In the Matter of New York City Asbestos Litigation. Ruby E. Konstantin, Individually and as Executrix of Dave John Konstantin, Deceased, Respondent, v 630 Third Avenue Associates et al., Defendants, and Tishman Liquidating Corporation, Appellant.
    Submitted March 14, 2016;
    decided March 24, 2016
   Motion by Business Council of New York State et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    The People of the State of New York, Respondent, v Trevor Anderson, Appellant.
    Submitted March 21, 2016;
    decided March 24, 2016
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 111 John Street, 9th Floor, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Peter Austin, Appellant.
    Submitted February 29, 2016;
    decided March 24, 2016
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 120 Wall Street, 28th Floor, New York, NY 10005 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Ross Campbell, Appellant.
    Submitted February 22, 2016;
    decided March 24, 2016
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 120 Wall Street, 28th Floor, New York, NY 10005 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v John Gayden, Appellant.
    Submitted February 22, 2016;
    decided March 24, 2016
   Motion for assignment of counsel granted and Timothy P. Donaher, Esq., Monroe County Public Defender, 10 N. Fitzhugh Street, Rochester, New York 14614 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Curlie Green, Appellant.
    Submitted February 29, 2016;
    decided March 24, 2016
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 dismissed as untimely.


text:
    The People of the State of New York, Respondent, v Thomas Jackson, Appellant.
    Submitted March 14, 2016;
    decided March 24, 2016
   Motion for assignment of counsel granted and Mitch Kessler, Esq., 63 Pike Creek Drive, Cohoes, New York 12047 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Michael E. Prindle, Appellant.
    Submitted February 22, 2016;
    decided March 24, 2016
   Motion for assignment of counsel granted and Timothy P. Donaher, Esq., Monroe County Public Defender, 10 N. Fitzhugh Street, Rochester, New York 14614 assigned as counsel to the appellant on the appeal herein.

Judge Fahey taking no part.


text:
    The People of the State of New York, Appellant, v Roni Smith, Respondent.
    Submitted February 29, 2016;
    decided March 24, 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 Theodore Jerome Smith, Jr., Appellant.
    Submitted March 14, 2016;
    decided March 24, 2016
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Darrell Spencer, Appellant.
    Submitted March 21, 2016;
    decided March 24, 2016
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 120 Wall Street, 28th Floor, New York, NY 10005 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Harvert Stephens, Also Known as Havert Stephens, Appellant.
    Submitted February 22, 2016;
    decided March 24, 2016
   Motion by City of Syracuse for leave to appear amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    The People of the State of New York, Respondent, v Jose Valentin, Appellant.
    Submitted March 21, 2016;
    decided March 24, 2016
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Dennis Watkins, Appellant.
    Submitted March 21, 2016;
    decided March 24, 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 ex rel. Levon Isaac, Appellant, v Donna Lewin, Superintendent, Hudson Correctional Facility, et al., Respondents.
    Decided March 24, 2016
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    The People of the State of New York by Eric T. Schneiderman, Attorney General of the State of New York, Respondent, v Maurice R. Greenberg et al., Appellants.
    Submitted March 7, 2016;
    decided March 24, 2016
   Motion by AARP for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.

Judge Garcia taking no part.


text:
    Armand Retamozzo, Appellant, v Diana Friedland et al., Respondents.
    Decided March 24, 2016
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution. Motions 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:
    Steven G. Schulman, Appellant, v Apryl N. Miller, Respondent.
    Decided March 24, 2016
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    James Brady, Appellant, v 450 West 31st Street Owner’s Corp. et al., Respondents. (And Another Action.)
    Submitted January 19, 2016;
    decided March 29, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the actions within the meaning of the Constitution. Motion for a stay dismissed as academic.


text:
    In the Matter of Devon D.T. Children’s Aid Society et al., Respondents; Davina T., Appellant.
    Submitted February 29, 2016;
    decided March 29, 2016
   Motion for leave to appeal denied. Motion for poor person relief dismissed as academic. Motion for a stay dismissed as academic.


text:
    In the Matter of Enrique S. and Others, Children Alleged to be Neglected. Kelba C.S., Appellant; Administration for Children’s Services, Respondent, et al., Respondent.
    Submitted January 19, 2016;
    decided March 29, 2016
   Motion for leave to appeal denied. Motion for poor person relief dismissed as academic. Motion for a stay dismissed as academic.


text:
    Executor of Celia Kates et al., Appellants, v James G. Pressly et al., Respondents.
    Submitted January 19, 2016;
    decided March 29, 2016
   Motion for reconsideration of this Court’s December 15, 2015 dismissal order denied [see 26 NY3d 1072 (2015)].

Chief Judge DiFiore and Judge Garcia taking no part.


text:
    Jian-Guo Yu et al., Plaintiffs, v Greenway Mews Realty L.L.C. et al., Defendants. Greenway Mews Realty L.L.C., Third-Party Plaintiff/Respondent, et al., Third-Party Plaintiff, v UAD Group, Third-Party Defendant/Appellant.
    Submitted January 25, 2016;
    decided March 29, 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 Burke v Crosson, 85 NY2d 10, 18 n 5 [1995]).

Judge Abdus-Salaam taking no part.


text:
    Seth Mitchell, Appellant, v New York University et al., Respondents.
    Submitted January 19, 2016;
    decided March 29, 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 James Miller, Appellant.
    Submitted February 1, 2016;
    decided March 29, 2016
   Motion to vacate this Court’s January 8, 2016 preclusion order granted.


text:
    The People of the State of New York ex rel. Ralph Oyague, Appellant, v Steven Racette, as Warden/Superintendent of Clinton Correctional Facility, Respondent.
    Submitted February 8, 2016;
    decided March 29, 2016
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for poor person relief dismissed as academic.


text:
    In the Matter of R.M., Appellant.
    Submitted January 4, 2016;
    decided March 29, 2016
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for poor person relief dismissed as academic.


text:
    Stewart Title Insurance Company, Suing in its Own Right and as Subrogee and Assignee of Herold Duroseau and Others, Respondent, v Wingate, Kearney & Cullen, Also Known as Wingate, Kearney & Cullen, Esqs., et al., Appellants.
    Submitted February 1, 2016;
    decided March 29, 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 Anthony Villafane, Appellant, v Thomas J. Spota III, Respondent.
    Submitted January 25, 2016;
    decided March 29, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Isaac Widerman, Appellant, v New York City Housing Authority, Respondent.
    Submitted January 19, 2016;
    decided March 29, 2016
   Motion for reargument of motion for leave to appeal denied [see 26 NY3d 912 (2015)].

Judge Abdus-Salaam taking no part.


text:
    Robert E. Wilson, III, Respondent, v Daniel Valente Dantas et al., Appellants, et al., Defendants.
    Submitted March 14, 2016;
    decided March 29, 2016
   Motion by respondent to strike appellants’ brief on appeal denied. Motion by respondent for reargument of motion to dismiss appeal denied [see 26 NY3d 1077 (2015)]. Motion by appellants for a stay denied.


text:
    Ambac Assurance Corporation et al., Appellants, v Countrywide Home Loans, Inc., et al., Defendants, and Bank of America Corp., Respondent.
    Submitted March 28, 2016;
    decided March 31, 2016
   Motion by New York State Academy of Trial Lawyers for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.

Chief Judge DiFiore taking no part.


text:
    Ambac Assurance Corporation et al., Appellants, v Countrywide Home Loans, Inc., et al., Defendants, and Bank of America Corp., Respondent.
    Submitted March 28, 2016;
    decided March 31, 2016
   Motion by Chamber of Commerce of the United States of America et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.

Chief Judge DiFiore taking no part.


text:
    APF 286 Mad LLC et al., Respondents, v Chittur & Associates P.C. et al., Appellants.
    Submitted February 8, 2016;
    decided March 31, 2016
   Motion for leave to appeal dismissed upon the ground that the judgment sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for a stay dismissed as academic.


text:
    In the Matter of Arianna-Samantha Lady Melissa S. and Another, Children Alleged to be Neglected. Carissa S., Appellant; Community Counseling & Mediation, Respondent.
    Submitted February 2, 2016;
    decided March 31, 2016
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Family Court’s denial of the motion to vacate, dismissed upon the ground that such portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Austrolyn O., Respondent, v Michelle R., Appellant, et al., Respondent.
    Submitted February 1, 2016;
    decided March 31, 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:
    Ramandeep Badwal, Respondent, v Avtar S. Badwal, Appellant.
    Submitted February 1, 2016;
    decided March 31, 2016
   Motion for reargument denied [see 26 NY3d 1046 (2015)].

Chief Judge DiFiore and Judge Garcia taking no part.


text:
    In the Matter of Beatrice R.H., Respondent. Dean E.H., Respondent. Penny F.H., Nonparty Respondent; Estate of Ronald H., Nonparty Appellant.
    Submitted February 1, 2016;
    decided March 31, 2016
   Motion for reargument of motion for leave to appeal dismissed upon the ground that movant was not a party to the original motion for leave to appeal [see 26 NY3d 1077 (2015)].

Chief Judge DiFiore and Judge Garcia taking no part.


text:
    In the Matter of Brooke S.B., Respondent, v Elizabeth A.C-C., Respondent. R. Thomas Rankin, Attorney for the Child, Appellant.
    Submitted March 28, 2016;
    decided March 31, 2016
   Motion by National Center for Lesbian Rights et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.

Judge Fahey taking no part.


text:
    Stephane Cosman Connery et al., Respondents, v Burton S. Sultan, Appellant.
    Submitted January 25, 2016;
    decided March 31, 2016
   Motion for reargument of motion for leave to appeal denied [see 26 NY3d 1080 (2015)].

Chief Judge DiFiore and Judge Garcia taking no part.


text:
    In the Matter of Eighth Judicial District Asbestos Litigation. Joann H. Suttner, as Executrix of Gerald W. Suttner, Deceased, Respondent, v A.W. Chesterton Company et al., Defendants, and Crane Co., Appellant.
    Submitted March 28, 2016;
    decided March 31, 2016
   Motion by CBS Corporation for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    In the Matter of Eighth Judicial District Asbestos Litigation. Joann H. Suttner, as Executrix of Gerald W. Suttner, Deceased, Respondent, v A.W. Chesterton Company et al., Defendants, and Crane Co., Appellant.
    Submitted March 28, 2016;
    decided March 31, 2016
   Motion by Chamber of Commerce of the United States of America for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    In the Matter of Estrellita A., Respondent, v Jennifer L.D., Appellant. In the Matter of Brooke S.B., Respondent, v Elizabeth A.C-C., Respondent. R. Thomas Rankin, Attorney for the Child, Appellant.
    Submitted March 28, 2016;
    decided March 31, 2016
   Motion by National Association of Social Workers et al. for leave to file a brief amici curiae on the appeals herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.

Judge Fahey taking no part.


text:
    In the Matter of Estrellita A., Respondent, v Jennifer L.D., Appellant.
    Submitted March 28, 2016;
    decided March 31, 2016
   Motion by National Center for Lesbian Rights et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.

Judge Fahey taking no part.


text:
    Marilyn Hopeman, Appellant, v Albert A. Hopeman III, Respondent.
    Submitted January 25, 2016;
    decided March 31, 2016
   Motion for reargument of motion for leave to appeal denied [see 26 NY3d 913 (2015)].

Chief Judge DiFiore and Judge Garcia taking no part.


text:
    George Newman et al., Appellants, v RCPI Landmark Properties, LLC, et al., Respondents.
    Submitted March 28, 2016;
    decided March 31, 2016
   Motion by Defense Association of New York, Inc. for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    In the Matter of New York City Asbestos Litigation. Doris Kay Dummitt, Individually and as Executrix of Ronald Dummitt, Deceased, Respondent, v A.W. Chesterton et al., Defendants, and Crane Co., Appellant.
    Submitted March 28, 2016;
    decided March 31, 2016
   Motion by General Electric for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    In the Matter of New York City Asbestos Litigation. Doris Kay Dummitt, Individually and as Executrix of Ronald Dummitt, Deceased, Respondent, v A.W. Chesterton et al., Defendants, and Crane Co., Appellant.
    Submitted March 28, 2016;
    decided March 31, 2016
   Motion by CBS Corporation for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    In the Matter of New York City Asbestos Litigation. Ruby E. Konstantin, Individually and as Executrix of Dave John Konstantin, Deceased, Respondent, v 630 Third Avenue Associates et al., Defendants, and Tishman Liquidating Corporation, Appellant.
    Submitted March 28, 2016;
    decided March 31, 2016
   Motion by John Crane Inc. for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    Nomura Asset Capital Corporation et al., Respondents-Appellants v Cadwalader, Wickersham & Taft LLP, Appellant-Respondent.
    Submitted November 30, 2015;
    decided March 31, 2016
   Motion for reargument denied with $100 costs and necessary reproduction disbursements.

Chief Judge DiFiore and Judge Garcia taking no part.


text:
    In the Matter of the Claim of Christopher North, Respondent. Young People’s Chorus of New York, Appellant; Commissioner of Labor, Respondent.
    Submitted January 19, 2016;
    decided March 31, 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:
    Maria Pappas, Respondent, v Anthony Pappas, Appellant.
    Submitted February 1, 2016;
    decided March 31, 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 Patrick A., Respondent, v Rochelle B., Appellant. (And Another Related Proceeding.)
    Submitted February 29, 2016;
    decided March 31, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceedings within the meaning of the Constitution. Motion for a stay dismissed as academic.


text:
    The People of the State of New York, Respondent, v Nirun Honghirun, Appellant.
    Submitted March 28, 2016;
    decided March 31, 2016
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 111 John Street, 9th Floor, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Lanze R. Mason, Appellant.
    Submitted March 28, 2016;
    decided March 31, 2016
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 111 John Street, 9th Floor, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Lawrence Parker, Appellant.
    Submitted March 28, 2016;
    decided March 31, 2016
   Motion for assignment of counsel granted and Seymour W. James, Jr., Esq., The Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Jamel Upson, Appellant.
    Submitted March 28, 2016;
    decided March 31, 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.

Chief Judge DiFiore taking no part.


text:
    The People of the State of New York by Eric T. Schneiderman, Respondent, v Maurice R. Greenberg et al., Appellants.
    Submitted March 28, 2016;
    decided March 31, 2016
   Motion by American Securities Administrators Association, Inc. for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.

Judge Garcia taking no part.


text:
    The People of the State of New York by Eric T. Schneiderman, Respondent, v Maurice R. Greenberg et al., Appellants.
    Submitted March 28, 2016;
    decided March 31, 2016
   Motion by Chamber of Commerce of the United States of America et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.

Judge Garcia taking no part.


text:
    Robert L. Schulz, Appellant, v Sheldon Silver, Individually and as Speaker of the New York State Assembly, Respondent.
    Decided March 31, 2016
   Appeal, insofar as taken from that portion of the Appellate Division order dismissing the appeal from the October 2014 Supreme Court order, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; appeal otherwise dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.

Chief Judge DiFiore taking no part.


text:
    S.L., Appellant, v J.R., Respondent.
    Submitted March 28, 2016;
    decided March 31, 2016
   Motion by Domestic Violence Legal Empowerment and Appeals Project et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    In the Matter of State of New York, Respondent, v Walter J.R., Appellant.
    Submitted January 19, 2016;
    decided March 31, 2016
   Motion for leave to appeal dismissed upon the ground that no motion for leave to appeal lies from an Appellate Division order which dismissed an appeal taken from a verdict sheet (see CPLR 5602). Motion for poor person relief dismissed as academic.


text:
    Wally G., an Infant, by His Mother and Natural Guardian, Yoselin T., Appellant, v New York City Health and Hospitals Corporation (Metropolitan Hospital), Respondent.
    Submitted March 28, 2016;
    decided March 31, 2016
   Motion by New York State Conference of Mayors and Municipal Officials for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.