text:
    [886 NE2d 142, 856 NYS2d 520]
    The People of the State of New York, Respondent, v Marcos Urbaez, Appellant.
    Argued February 12, 2008;
    decided March 13, 2008

      APPEARANCES OF COUNSEL

      Legal Aid Society, New York City (Laura Lieberman Cohen of counsel), for appellant.

      Robert T. Johnson, District Attorney, Bronx (Noah Chamoy, Allen Saperstein and Joseph N. Ferdenzi of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Term should be affirmed.

On or about May 15, 2004, defendant placed a telephone call to the mother of his two teenage boys in which he threatened to withhold payment of child support, beat her, knock out her teeth and break her face. Based on that call, defendant was charged with aggravated harassment in the second degree, an A misdemeanor under Penal Law § 240.30 (1), and harassment in the second degree, a violation under Penal Law § 240.26 (1).

On the trial date some months later, the People moved to reduce the A misdemeanor to attempted aggravated harassment in the second degree, a B misdemeanor. Over defendant’s objection that the People were reducing the charge simply to deny him his right to a trial by jury, the judge permitted reduction to the lesser-included offense. The People then renewed their plea offer of a violation conditioned on compliance with an order of protection, which defendant rejected. After a bench trial, defendant was convicted of both offenses and sentenced to a conditional discharge with an order of protection. Defendant now complains that he was wrongfully stripped of his right to a jury.

It is well established that a defendant’s right to a jury trial attaches only to “serious offenses,” not to “petty crimes” (Callan v Wilson, 127 US 540 [1888]), the determining factor being length of exposure to incarceration (Matter of Morgenthau v Erlbaum, 59 NY2d 143, 153 [1983]). No jury right attaches when maximum incarceration is six months or less (Baldwin v New York, 399 US 66 [1970]). When the charge is a misdemeanor for which the authorized term of imprisonment is not more than six months—which includes all B misdemeanors having a maximum jail sentence of three months—New York City criminal courts must conduct a bench trial (CPL 340.40 [2]). Especially in New York City, with its high volume of misdemeanor cases, this statute furthers the important public interest of effective judicial administration.

The law also provides the prosecutor with broad discretion to decide what crimes to charge (People v Eboli, 34 NY2d 281 [1974]), including reducing a charge when appropriate. Beyond a desire to promote judicial efficiency, there are valid reasons a prosecutor might file an information for a more serious crime and subsequently seek to reduce the charge. A defendant’s criminal history or prior relationship with a victim, the victim’s own wishes, and the strength and veracity of the facts underlying the charge are examples of the many considerations that might, upon further investigation, lead a prosecutor to reduce a charge.

Here, defendant was charged with making one harassing telephone call. Following the reduction to the B misdemeanor, the prosecutor conveyed a plea offer of a violation with a conditional discharge and an order of protection. Even after defendant’s conviction, the prosecutor’s sentencing recommendation did not include incarceration. The judge, in turn, recognized the relatively nonserious nature of the crime when she sentenced defendant to a conditional discharge.

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

Order affirmed in a memorandum.


source: Caselaw Access Project

license: Public Domain

text:
    [ 886 NE2d 775, 857 NYS2d 14]
    In the Matter of David F. Jung.
    Decided March 13, 2008
   OPINION OF THE COURT

On the Court’s own motion, it is determined that Honorable David F. Jung is suspended with pay, effective immediately, from the office of Judge of the Family Court, Fulton County, pending disposition of his request for review of a determination by the State Commission on Judicial Conduct.

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


author: Memorandum.

text:
    [ 886 NE2d 762, 857 NYS2d 1]
    In the Matter of Mitchell Schorr, Respondent, v New York City Department of Housing Preservation and Development et al., Appellants.
    Argued February 12, 2008;
    decided March 13, 2008

      APPEARANCES OF COUNSEL

      Michael A. Cardozo, Corporation Counsel, New York City (Karen M. Griffin and Francis F. Caputo of counsel), for New York City Department of Housing Preservation and Development, appellant.

      Gallet Dreyer & Berkey, LLP, New York City (Michelle P. Quinn and David L. Berkey of counsel), for East Midtown Plaza Housing Company, Inc., appellant.

      Rosenberg & Estis, P.C., New York City (Jeffrey Turkel of counsel), for respondent.

      Andrew M. Cuomo, Attorney General, New York City (Robert C. Weisz, Barbara D. Underwood and Michael S. Belohlavek of counsel), for New York State Division of Housing and Community Renewal, amicus curiae.
   OPINION OF THE COURT

Memorandum.

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

In 1987, petitioner, his parents and brother moved into a two-bedroom Mitchell-Lama apartment in Manhattan. Because petitioner was 14 years old at the time, he was the only member of his family not listed as a tenant of record. Petitioner left the apartment for college at some point in the early 1990s and there is no record of his return to the apartment until 1999, when his name first appeared on the apartment’s annual income report. By February 2000, the tenants of record had vacated the apartment, leaving petitioner as the sole occupant. Because he did not reside in the apartment for two consecutive years prior to 2000, the year the last tenants of record (his parents) vacated, petitioner did not qualify for successor rights to the apartment under the Mitchell-Lama Law, but nevertheless remained.

Respondent East Midtown Plaza Housing Company, Inc., a limited-profit housing company incorporated under the Mitchell-Lama Law, owns and operates the apartment subject to the regulations and supervisory authority of respondent Department of Housing Preservation and Development (HPD). Although petitioner was no longer authorized to reside in the apartment, East Midtown apparently acquiesced in petitioner’s occupancy. Following two successful lawsuits by petitioner against East Midtown in 2001 and 2004, East Midtown initiated eviction proceedings against petitioner in December 2004. Petitioner attempted unsuccessfully to submit an application for successor rights and in July 2005, HPD affirmed the eviction because petitioner could not establish that he qualified for such rights.

In September 2005, East Midtown initiated a holdover proceeding against petitioner in Civil Court. In response, petitioner commenced this CPLR article 78 proceeding seeking to annul HPD’s eviction determination. Supreme Court annulled the determination, holding, among other things, that because of East Midtown’s apparent consent to the tenancy, HPD and East Midtown were estopped from evicting petitioner. The Appellate Division affirmed, and we now reverse.

The Mitchell-Lama Law prescribes strict guidelines for tenant eligibility and succession, to which East Midtown must adhere (see 28 RCNY § 3-02 [p] [8] [ii]). HPD is the supervising governmental agency responsible for administering the Mitchell-Lama program in New York City (see Private Housing Finance Law § 2 [15]; New York City Charter § 1802 [6] [d]). Thus, HPD is statutorily required to enforce the Mitchell-Lama Law and regulations regardless of any actions or acquiescence by East Midtown and the other limited-profit housing companies it supervises.

It is well settled that “estoppel cannot be invoked against a governmental agency to prevent it from discharging its statutory duties” (Matter of New York State Med. Transporters Assn. v Perales, 77 NY2d 126, 130 [1990]; see also Matter of Wedinger v Goldberger, 71 NY2d 428, 441 [1988], cert denied 488 US 850 [1988]; Matter of E.F.S. Ventures Corp. v Foster, 71 NY2d 359, 369-370 [1988]; Matter of Parkview Assoc. v City of New York, 71 NY2d 274, 282 [1988], cert denied 488 US 801 [1988]; Scruggs-Leftwich v Rivercross Tenants’ Corp., 70 NY2d 849, 852 [1987]). Here, it is clear that petitioner did not meet the eligibility requirements for succession rights to the apartment and was, therefore, an illegal tenant. Thus, invoking estoppel against HPD and East Midtown would impermissibly prevent HPD from executing its statutory duty to provide Mitchell-Lama housing only to individuals who meet the specified eligibility requirements.

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

Order reversed, etc.

      . The Mitchell-Lama Law (Private Housing Finance Law article II) was enacted in 1955 to offer private housing companies the incentive to develop low- and moderate-income housing (see Matter of KSLM-Columbus Apts., Inc. v New York State Div. of Hous. & Community Renewal, 5 NY3d 303, 308 [2005]). “The program encourages such housing by offering State and municipal assistance to developers in the form of long-term, low-interest government mortgage loans and real estate tax exemptions. In return for these financial benefits, developers agree to regulations concerning rent, profit, disposition of property and tenant selection” (Matter of Columbus Park Corp. v Department of Hous. Preserv. & Dev. of City of N.Y., 80 NY2d 19, 23 [1992] [citations omitted]).

      . There is no evidence in the record that HPD knew of petitioner’s purported “tenancy” during the time period in question.


text:
    In the Matter of AC I Shore Road, LLC, Respondent, v Incorporated Village of Great Neck et al., Appellants, et al., Respondents.
    Submitted January 7, 2008;
    decided March 13, 2008
   Motion to enlarge the record on appeal denied. Motion for leave to appeal denied.


text:
    Clare C. Bassile, Respondent, v Scott O. Myers, Appellant.
    Submitted February 19, 2008;
    decided March 13, 2008
   Motion for reargument of motion for leave to appeal denied [see 9 NY3d 1025 (2007)].


text:
    In the Matter of Hasan Murad Osiris Ahad Beyah, Appellant.
    Submitted December 17, 2007;
    decided March 13, 2008
   Motion for reargument of motion for leave to appeal denied [see 9 NY3d 814 (2007)].


text:
    Briggs Avenue LLC, Appellant, v Insurance Corporation of Hannover, Respondent.
    Decided March 13, 2008
   Concur: Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones.


text:
    In the Matter of Amil Dinsio, Appellant, v Supreme Court, Appellate Division, Third Judicial Department, Committee on Professional Standards, Respondent.
    Submitted January 22, 2008;
    decided March 13, 2008
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the orders appealed from do not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Louis S. Ederer, Respondent, v Steven R. Gursky et al., Appellants.
    Submitted February 11, 2008;
    decided March 13, 2008
   Motion for reargument denied with $100 costs and necessary reproduction disbursements [see 9 NY3d 514 (2007)].


text:
    Fair Price Medical Supply Corp., as Assignee of Cesar Nivelo, Respondent, v Travelers Indemnity Company, Appellant.
    Submitted March 10, 2008;
    decided March 13, 2008
   Motion by New York Insurance Association, Inc. for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    In the Matter of Donald Feola, Respondent, v Patrick J. Carroll et al., Appellants.
    Submitted February 25, 2008;
    decided March 13, 2008
   Motion by City of New York for leave to file a brief amicus curiae on the appeal herein granted. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    In the Matter of Woodrow Flemming, Appellant, v Charles Tejada, as Justice of the Supreme Court of the State of New York, et al., Respondents.
    Submitted January 14, 2008;
    decided March 13, 2008
   Motion for reargument denied [see 9 NY3d 1003 (2007)].


text:
    Great Northern Insurance Company et al., Plaintiffs, v Kobrand Corporation, Appellant, and Safeguard Insurance Company et al., Respondents.
    Submitted October 15, 2007;
    decided March 13, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Jericho Water District, Respondent, v One Call Users Council, Inc., et al., Appellants.
    Submitted March 10, 2008;
    decided March 13, 2008
   Motion to strike portions of respondent’s brief denied.


text:
    Christine Kopsachilis, Respondent, v 130 East 18 Owners Corp. et al., Appellants.
    Submitted February 25, 2008;
    decided March 13, 2008
   Motion by Riverbay Corporation for leave to file a letter brief amicus curiae on the appeal herein granted and the letter brief is accepted as filed.


text:
    Joseph Montesano, Individually and as President of Rochester Firefighters, Inc., Local 1071, IAFF, AFL-CIO, as Trustee of Rochester Firefighters Association Mutual Aid Fund and on Behalf of All Other Individuals Providing Fire Protection to City of Rochester Similarly Situated, et al., Appellants, v Floyd A. Madison, as Chief of Fire Department of City of Rochester and as Administrator of Firefighters Insurance Fund of City of Rochester, et al., Defendants, and City of Rochester, Respondent.
    Submitted January 7, 2008;
    decided March 13, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v Genaro Campos, Appellant.
    Submitted March 3, 2008;
    decided March 13, 2008
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Jocelyn Louise Charpentier, Appellant.
    Submitted March 10, 2008;
    decided March 13, 2008
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Dwight Giles, Appellant.
    Submitted March 10, 2008;
    decided March 13, 2008
   Motion for assignment of counsel granted and Susanna De La Pava, Esq., 110 Wall Street, 11th 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 Delon Lucas, Appellant.
    Submitted February 19, 2008;
    decided March 13, 2008
   Motion for assignment of counsel granted and Steven Banks, Esq., the Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v William Shankle, Appellant.
    Submitted February 25, 2008;
    decided March 13, 2008
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 denied as unnecessary and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Panagiotis Souris, Also Known as Peter Souris, Appellant.
    Submitted February 19, 2008;
    decided March 13, 2008
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    Leonor Datil Perez, Appellant, v Time Moving and Storage, Inc., Respondent.
    Submitted January 7, 2008;
    decided March 13, 2008
   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. Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for a stay dismissed as academic.


text:
    Village of Pomona, Appellant, v Town of Ramapo et al., Respondents.
    Submitted January 7, 2008;
    decided March 13, 2008
   Motion for reargument of motion for leave to appeal denied [see 9 NY3d 981 (2007)].


text:
    Brad S. Ralin, Appellant, v City of New York et al., Respondents.
    Submitted December 19, 2007;
    decided March 13, 2008
   Motion for leave to appeal denied with $100 costs and necessary reproduction disbursements. Motion for a stay dismissed as academic.


text:
    Jose Ramirez et al., Appellants, v Mark T. Miller et al., Defendants, and Eichner Rudd Management Associates, Ltd., Respondent.
    Submitted December 17, 2007;
    decided March 13, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Deonarine Ramnarain, Appellant, v Chandradat Ramnarain, Respondent, et al., Defendant.
    Submitted January 28, 2008;
    decided March 13, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Norma Reshevsky et al., Appellants, v United Water New York, Inc., Respondent.
    Submitted January 28, 2008;
    decided March 13, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Seasia D. Mr. Anonymous et al., Appellants; Kareem W., Respondent.
    Submitted January 28, 2008;
    decided March 13, 2008
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal granted.


text:
    Solow Management Corp., Respondent, v Steven Tanger et al., Respondents. Jerome Janof, Nonparty Appellant.
    Submitted February 19, 2008;
    decided March 13, 2008
   Motion, insofar as it seeks to strike Addendum A to appellant’s reply brief and references thereto in the reply brief, denied; motion, insofar as it seeks consideration of the arguments contained in paragraphs 28-31 of the Brown affirmation, granted.


text:
    TAG 380, LLC, Respondent, v ComMet 380, Inc., Appellant and Third-Party Plaintiff. GMAC Commercial Mortgage Corporation, Third-Party Defendant-Intervenor.
    Submitted February 19, 2008;
    decided March 13, 2008
   Motion to enlarge the record on appeal granted. Cross motion to. strike portions of appellant’s reply brief denied.


text:
    [ 886 NE2d 783, 857 NYS2d 20]
    In the Matter of David Gross.
    Decided March 18, 2008
   OPINION OF THE COURT

On the Court’s own motion, it is determined that Honorable David Gross is removed, effective immediately, from his office of Judge of the Nassau County District Court, Tenth Judicial District, pursuant to New York Constitution, article VI, § 22 (f) and Judiciary Law § 44 (8).

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


text:
    [ 886 NE2d 154, 856 NYS2d 532]
    Danielle Bernstein, an Infant, by Her Father and Natural Guardian, Roger Bernstein, et al., Appellants, v Penny Whistle Toys, Inc., et al., Respondents and Third-Party Plaintiffs. (And a Third-Party Action.)
    Argued February 14, 2008;
    decided March 18, 2008
    APPEARANCES OF COUNSEL

      Rappaport, Glass, Greene & Levine, LLP, New York City (James L. Forde of counsel), for appellants.

      Carol R. Finocchio, New York City, Lisa M. Comeau, and Law Offices of John P. Humphreys, for respondents.

      Hawkins, Feretic, Daly & Maroney, New York City (Brian J. Daly of counsel), for third-party defendant-respondent.
   OPINION OF THE COURT

Memorandum.

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

We held in Collier v Zambito (1 NY3d 444, 447 [2004]) that a plaintiff bitten by a dog could not recover because he was unable to show that the dog’s owner knew or should have known of the dog’s “vicious propensities.” In Bard v Jahnke (6 NY3d 592, 599 [2006]), we held that “when harm is caused by a domestic animal, its owner’s liability is determined solely by application of the rule articulated in Collier.”

Since there is no evidence in this case that the dog’s owner had any knowledge of its vicious propensities, the Appellate Division was correct in affirming the dismissal of the complaint against defendants. Plaintiffs claims against third-party defendant were also properly dismissed, because there is no evidence that third-party defendant was negligent.

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Alexis D., an Infant. Erie County Department of Social Services, Respondent; Janice P., Respondent, and Barrie D., Appellant.
    Submitted February 11, 2008;
    decided March 18, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Bernadette Panzella, P.C., Appellant, v Gerard D. DeSantis, Respondent. Adam Stanger, D.C., P.C., Nonparty Respondent.
    Submitted February 11, 2008;
    decided March 18, 2008
   Motion for reargument of motion for leave to appeal denied with $100 costs and necessary reproduction disbursements [see 9 NY3d 816 (2007)].


text:
    In the Matter of Cathedral Properties Corp., Appellant, v Jacques Blinbaum et al., Respondents.
    Submitted January 22, 2008;
    decided March 18, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Delphi Restoration Corporation et al., Respondents, v Sunshine Restoration Corporation, Defendant, and Utica First Insurance Company, Appellant.
    Submitted February 4, 2008;
    decided March 18, 2008
   Motion for reargument of motion for leave to appeal denied [see 9 NY3d 1002 (2007)].


text:
    Ruchama Gamiel, Respondent, v Curtis & Riess-Curtis, P.C., et al., Appellants. (And a Third-Party Action.)
    Submitted February 11, 2008;
    decided March 18, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of the Estate of Juliana Gucu, Deceased. Viorika Anka, Respondent; John Gucu Roberts, Appellant.
    Submitted January 22, 2008;
    decided March 18, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Ronald J. Harrington et al., Appellants-Respondents, v Marian Gage, Respondent-Appellant.
    Submitted January 28, 2008;
    decided March 18, 2008
   Motions for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Elisa Jimenez, Appellant, v Peter Acheson et al., Respondents.
    Submitted January 22, 2008;
    decided March 18, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Yolanda Magriz, Appellant, v St. Barnabas Hospital et al., Respondents, et al., Defendants.
    Submitted January 28, 2008;
    decided March 18, 2008
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that pertains to defendants Homer, Glenn and Zambito, denied; motion, insofar as it otherwise seeks leave to appeal from the Appellate Division order, dismissed upon the ground that the remainder of such order does not finally determine the action within the meaning of the Constitution.


text:
    Patricia Pasqua, Respondent, v Handels-En Productiemaatschappij De Schouw, B.V., Also Known as Handels-En Productiemaatschappij “De Schouw” B.V, et al., Appellants, et al., Defendant.
    Submitted February 4, 2008;
    decided March 18, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for a stay dismissed as academic.


text:
    In the Matter of Ella Quinn et al., Appellants, v John A. Johnson, as Commissioner of New York State Office of Children and Family Services, et al., Respondents.
    Submitted February 25, 2008;
    decided March 18, 2008
   Motion for reargument of motion for leave to appeal denied with $100 costs and necessary reproduction disbursements. Motion for a stay denied [see 9 NY3d 818 (2007)].


text:
    In the Matter of the Foreclosure of Tax Liens by City of Rensselaer. City of Rensselaer, Respondent; Robert E. Harris, Appellant.
    Submitted January 14, 2008;
    decided March 18, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for a stay dismissed as academic.


text:
    Royal York Owners Corp. et al., Appellants, v Royal York Associates, L.P., Respondent. (And Another Action.)
    Submitted December 31, 2007;
    decided March 18, 2008
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as modified Supreme Court’s order in the second action, dismissed upon the ground that such portion of the order does not finally determine that action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Wells Fargo Bank Minnesota, National Association, Respondent, v Bernice Perez, Appellant.
    Submitted January 28, 2008;
    decided March 18, 2008
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]; Eaton v State of New York, 76 NY2d 824 [1990]).


text:
    [ 886 NE2d 155, 856 NYS2d 533]
    Eugenia Swiderska, Appellant, v New York University et al., Respondents.
    Decided March 20, 2008
    APPEARANCES OF COUNSEL

      Profeta & Eisenstein, New York City (Fred R. Profeta, Jr., of counsel), for appellant.

      Wade Clark Mulcahy, New York City (Dennis M. Wade of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, plaintiffs motion for partial summary judgment as to liability on her Labor Law § 240 (1) cause of action should be granted and defendants’ cross motions for summary judgment should be denied.

As part of a commercial cleaning contract, plaintiffs employer instructed her to clean the 10-foot-high interior windows in a dormitory building, providing her with only a rag and window washing solution to complete the task. When plaintiff asked for a ladder so that she could reach the tops of the windows, she was instructed to climb on furniture instead. While standing on a bed in an attempt to clean a window, plaintiff fell to the floor, suffering multiple fractures and other injuries. This Labor Law § 240 (1) action ensued.

The parties cross-moved for summary judgment on the issue of liability, with both lower courts granting judgment in favor of defendants on the theory that the activity in which plaintiff was engaged constituted routine maintenance not covered by Labor Law § 240 (1). We disagree and conclude that plaintiff was entitled to summary judgment on the issue of liability. In Broggy v Rockefeller Group, Inc. (8 NY3d 675 [2007]), we held that commercial window cleaning comparable to the activity at issue here is encompassed within Labor Law § 240 (1) if it created the type of elevation-related risk that the statute was intended to address. In this case, plaintiff established that she was injured while cleaning 10-foot-high windows in a college dormitory with a rag, which required her to climb upon pieces of furniture in order to complete her work—creating an elevation-related risk— and she was not provided a ladder, scaffold or other safety device of the kind contemplated under the statute.

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

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


text:
    [ 886 NE2d 768, 857 NYS2d 7]
    In the Matter of Town of Rye et al., Appellants, v New York State Board of Real Property Services et al., Respondents.
    Argued February 5, 2008;
    decided March 20, 2008

      APPEARANCES OF COUNSEL

      DelBello Donnellan Weingarten Wise & Wiederkehr, LLP, White Plains (Gregory Spaun, Brian T. Belowich and Michael J. Schwarz of counsel), for appellants.

      Andrew M. Cuomo, Attorney General, New York City (Cecelia Chang, Barbara D. Underwood and Michael S. Belohlavek of counsel), for New York State Board of Real Property Services, respondent.

      Huff Wilkes LLP, Tarrytown (John J. Loveless of counsel), for City of Rye, respondent.
   OPINION OF THE COURT

Memorandum.

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

The Town of Rye and a Town of Rye taxpayer commenced this CPLR article 78 proceeding to challenge the State Board of Real Property Services’ decision not to establish a segment-special equalization rate for the City of Rye. Judicial review of state equalization rates is governed by section 1218 of the Real Property Tax Law, which provides that an action may be commenced “in the appellate division of the supreme court in the manner provided by [article 78] upon application of the county; city, town or village for which the rate or rates were established” (emphasis added). In Matter of Town of Riverhead v New York State Bd. of Real Prop. Servs. (5 NY3d 36, 43 [2005]), we concluded that, “[i]n light of the express limitation set forth in RPTL 1218,” a municipality lacks the capacity to contest a segment-special equalization rate established by the State Board for a different municipality within the same school district. Citing Town of Riverhead, the Appellate Division granted the Board’s and the City’s motions to dismiss this proceeding on the ground that both petitioners lacked capacity to sue under section 1218.

As we emphasized in Town of Riverhead, RPTL 1218 expressly limits those entitled to seek judicial review to directly affected municipalities whose own “rate or rates were established” by the State Board. Neither the Town nor the individual taxpayer falls within this class of parties. Next, assuming the individual taxpayer fulfills the requirements for common-law standing, jurisdiction to entertain an action based on common-law standing would lie in Supreme Court, not the Appellate Division. Finally, the individual taxpayer’s constitutional challenge to RPTL 1218 was not raised in the amended petition, and therefore is not preserved for our review.

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Joshua Bernstein, a Disbarred Attorney, Appellant. Grievance Committee for the Second and Eleventh Judicial Districts, Respondent.
    Submitted March 10, 2008;
    decided March 20, 2008


text:
    In the Matter of Isaiah Brown, Appellant, v Glenn S. Goord, as Commissioner of Correctional Services, Respondent.
    Submitted February 11, 2008;
    decided March 20, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and is not an order of the type provided for in CPLR 5602 (a) (2). Motion for poor person relief dismissed as academic.


text:
    In the Matter of Kent W. Davenport, Respondent, v Jeffrey Stein, Appellant.
    Submitted March 10, 2008;
    decided March 20, 2008
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Dominick Giaquinto, Appellant, v Commissioner of New York State Department of Health, Respondent, et al., Respondent.
    Submitted March 17, 2008;
    decided March 20, 2008
   Motion by Peter VoIImer, Esq. for leave to appear amicus curiae on the appeal herein granted only to the extent that a revised brief, with the motion exhibits attached thereto, may be served and filed. Three copies of such brief must be served and an original and 24 copies filed within seven days.


text:
    In the Matter of Dominick Giaquinto, Appellant, v Commissioner of New York State Department of Health, Respondent, et al., Respondent.
    Submitted March 17, 2008;
    decided March 20, 2008
   Motion by National Center for Law and Economic Justice, 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 24 copies filed within seven days.


text:
    In the Matter of Dominick Giaquinto, Appellant, v Commissioner of New York State Department of Health, Respondent, et al., Respondent.
    Submitted March 17, 2008;
    decided March 20, 2008
   Motion by Empire Justice Center 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 24 copies filed within seven days.


text:
    Elaine Pachter, Respondent, v Bernard Hodes Group, Inc., Appellant.
    Submitted March 17, 2008;
    decided March 20, 2008
   Motion by National Retail Federation for leave to appear amicus curiae on consideration of the certified questions herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Elaine Pachter, Respondent, v Bernard Hodes Group, Inc., Appellant.
    Submitted March 17, 2008;
    decided March 20, 2008
   Motion by Securities Industry and Financial Markets Association for leave to appear amicus curiae on consideration of the certified questions herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


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


text:
    The People of the State of New York, Respondent, v Fatin Johnson, Appellant.
    Submitted March 17, 2008;
    decided March 20, 2008
   Motion by Innocence Project for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    The People of the State of New York, Respondent, v Fatin Johnson, Appellant.
    Submitted March 17, 2008;
    decided March 20, 2008
   Motion by Legal Aid Society et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    In the Matter of The People of the State of New York, by Eliot Spitzer, as Attorney General, Respondent-Appellant, v Applied Card Systems, Inc., et al., Appellants-Respondents.
    Submitted March 17, 2008;
    decided March 20, 2008
   Motion by Attorney General of the State of Vermont et al. for leave to file a brief amici curiae on the appeal herein granted. Three copies of the brief must be served and an original and 24 copies filed within seven days.


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


text:
    The People of the State of New York ex rel. Woodrow Flemming, Appellant, v R. Woods, as Superintendent of Upstate Correctional Facility, Respondent.
    Submitted February 11, 2008;
    decided March 20, 2008
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for 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:
    Theodore Petties, Appellant, v New York City Housing Authority, Respondent.
    Submitted February 11, 2008;
    decided March 20, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Ignacio Reynoso, Appellant, v Robert Dennison, as Acting Chairman of the New York State Division of Parole, Respondent.
    Submitted March 10, 2008;
    decided March 20, 2008
   Appeal dismissed without costs, by the Court of Appeals, sua sponte, upon the ground that the October 29, 2007 letter appealed from is not a judgment or an order from which an appeal to the Court of Appeals may be taken (see CPLR'5512 [a]; 5601).


text:
    Norman D. Rosenberg, Appellant, v Eileen S. Sack, Also Known as Leeny Sack, Respondent.
    Submitted February 11, 2008;
    decided March 20, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    State Farm Mutual Automobile Insurance Company, as Subrogee of Scott D. Hinman, Respondent, v Croyle Enterprises, Inc., Doing Business as Damian’s Automotive, Appellant.
    Submitted February 4, 2008;
    decided March 20, 2008
   Motion for leave to appeal dismissed upon the ground that Croyle Enterprises, Inc. must appear by attorney {see CPLR 321 [a]), and Damian Croyle, who is not an attorney, may not act as its authorized legal representative.


text:
    Superb General Contracting Co., Appellant, v. City of New York et al., Respondents, et al., Defendants.
    Submitted November 19, 2007;
    decided March 20, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Wadsworth Avenue Associates, Appellant, v Kenneth L. Maynard, Respondent.
    Submitted January 7, 2008;
    decided March 20, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Pamela Weadick et al., Appellants, v Carol Anne Herlihy, Respondent.
    Submitted January 28, 2008;
    decided March 20, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    [ 886 NE2d 179, 856 NYS2d 557]
    The People of the State of New York, Respondent, v Joseph Windham, Appellant.
    Argued February 14, 2008;
    decided March 25, 2008
    APPEARANCES OF COUNSEL

      Legal Aid Society, New York City {Karen M. Kalikow and Steven Banks of counsel), for appellant.

      Charles J. Hynes, District Attorney, Brooklyn {Anthea H. Bruffee and Leonard Johlove of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

On August 2, 1991, defendant Joseph Windham was sentenced in accordance with a plea agreement to concurrent terms of imprisonment of 4 to 12 years for first-degree robbery and 1 to 3 years for first-degree sexual abuse. He was first released on parole on June 25, 1996, but was subsequently reincarcerated in 1997 for a parole violation.

In 2005, defendant appeared before Supreme Court for a sex offender risk level reassessment hearing pursuant to Doe v Pataki (3 F Supp 2d 456 [SD NY 1998]), at which the People successfully sought to have him adjudicated a level three (high risk) sex offender under the Sex Offender Registration Act (SORA) (Correction Law art 6-C). In his appeal to the Appellate Division, defendant argued for the first time that he was not subject to SORA because, although he was released on parole after SORA’s effective date (Jan. 21, 1996), he finished serving the sex-offense portion of his concurrent sentence no later than August 2, 1994. In affirming the hearing court, the Appellate Division rejected this claim on the ground that it was unpreserved and, in any event, without merit.

We now affirm on the basis that defendant did not preserve his claim for appellate review; we express no view as to the merits. Although defendant looks for support to cases where we have held that a challenge to an unauthorized or illegal sentence falls within a narrow exception to the preservation rule (see People v Samms, 95 NY2d 52 [2000]), a SORA risk-level determination is not part of a defendant’s sentence (see People v Stevens, 91 NY2d 270, 277 [1998]). Rather, it is a collateral consequence of a conviction for a sex offense designed not to punish, but rather to protect the public (see Doe v Pataki, 120 F3d 1263 [2d Cir 1997], cert denied 522 US 1122 [1998]). In sum, defendant was required to contest his SORA eligibility at the hearing court.

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

Order affirmed, without costs, in a memorandum.


text:
    In the Matter of George P. Alessio, Jr., Appellant-Respondent, v Paul G. Carey, Respondent-Appellant, et al., Respondents.
    Submitted March 17, 2008;
    decided March 25, 2008
   Motion by appellant-respondent Alessio for leave to appeal denied. Motion by appellant-respondent Alessio for a stay dismissed as academic. Motion by respondent-appellant Carey for leave to appeal denied.


text:
    In the Matter of Amber A. and Another, Infants. Erie County Department of Social Services, Respondent; Steven V., II, Respondent, and Kathy A., Appellant. In the Matter of Andrew V. and Another, Infants. Erie County Department of Social Services, Respondent; Steven V., II, Respondent, and Kathy A., Appellant.
    (Appeal No. 1.)
    (Appeal No. 2.)
    Submitted February 19, 2008;
    decided March 25, 2008
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the proceedings within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Anonymous, an Applicant for Admission to the Bar, Appellant.
    Submitted March 10, 2008;
    decided March 25, 2008
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that it is untimely (see CFLR 5513 [a]).


text:
    Melissa Ballas, Appellant, v Occupational and Sports Medicine of Brookhaven, P.C., et al., Respondents, et al., Defendant.
    Submitted January 22, 2008;
    decided March 25, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Board of Education of the New Paltz Central School District, Appellant, v Michelle C. Donaldson, as Commissioner of Human Rights, et al., Respondents.
    Submitted February 4, 2008;
    decided March 25, 2008
   Motion by the New York State School Boards Association for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    In the Matter of Pedro Jason William M. and Others, Infants. Pedro M., Appellant; Episcopal Social Services et al., Respondents.
    Submitted February 11, 2008;
    decided March 25, 2008
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York, Respondent, v Eliezer Cintron, Appellant.
    Submitted February 11, 2008;
    decided March 25, 2008
   Motion for leave to appeal denied on the ground that an appeal lies as of right. Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York, Respondent, v Stephen Kelemen, Appellant.
    Submitted February 4, 2008;
    decided March 25, 2008
   Motion for leave to appeal dismissed upon the ground that no civil appeal lies from the order of the Appellate Division entered in this criminal action (see NY Const, art VI, § 3 [b]; CPLR 5602; CPL 450.90). Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York, Respondent, v Ina V. Kurz, Appellant.
    Submitted March 10, 2008;
    decided March 25, 2008
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no civil appeal lies from the order entered in this criminal action (see NY Const, art VI, § 3 [b]; CPLR 5601; CPL 450.70, 450.90).


text:
    The People of the State of New York, Respondent, v Ernest W. Vann, Appellant.
    Submitted March 17, 2008;
    decided March 25, 2008
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no civil appeal lies from the order of the Appellate Division entered in this criminal proceeding (see NY Const, art VI, § 3 [b]; CPLR 5601; CPL 450.90).


text:
    The People of the State of New York ex rel. Ronald J. Hall, Appellant, v Deborah L. Keysor, as Acting Superintendent of Altona Correctional Facility, Respondent.
    Submitted February 19, 2008;
    decided March 25, 2008
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


text:
    Silberstein, Awad & Miklos, P.C., Respondent, v Spencer, Maston & McCarthy, LLP, Appellant.
    Submitted February 4, 2008;
    decided March 25, 2008
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Svetlana Sorokina, Appellant, v David A. Hansell, as Acting Commissioner of New York State Office of Temporary and Disability Assistance, et al., Respondents.
    Submitted March 17, 2008;
    decided March 25, 2008
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Suffolk Regional Off-Track Betting Corporation, Respondent-Appellant, v New York State Racing and Wagering Board et al., Appellants-Respondents. (And Four Other Related Proceedings.)
    Submitted February 19, 2008;
    decided March 25, 2008
   Motion by the Standardbred Owners Association for leave to file a brief amicus curiae on the motions for leave to appeal herein granted and the brief is accepted as filed.


text:
    In the Matter of Suffolk Regional Off-Track Betting Corporation, Respondent-Appellant, v New York State Racing and Wagering Board et al., Appellants-Respondents. (And Four Other Related Proceedings.)
    Submitted February 19, 2008;
    decided March 25, 2008
   Motion by the Monticello Harness Horsemen’s Association for leave to file a brief amicus curiae on the motions for leave to appeal herein granted and the brief is accepted as filed.


text:
    In the Matter of Suffolk Regional Off-Track Betting Corporation, Respondent-Appellant, v New York State Racing and Wagering Board et al., Appellants-Respondents. (And Four Other Related Proceedings.)
    Submitted February 11, 2008;
    decided March 25, 2008
   Motion by the Saratoga Harness Horsepersons’ Association for leave to file a memorandum of law amicus curiae on the motions for leave to appeal herein granted and the memorandum of law is accepted as filed.


author: Smith, J.

text:
    [892 NE2d 365, 862 NYS2d 301]
    The People of the State of New York, Respondent, v Burton Jeffrey Hunter, Appellant.
    Argued April 24, 2008;
    decided June 12, 2008

      POINTS OF COUNSEL

      Cheryl Coleman Law Offices, Albany (Cheryl Coleman of counsel), for appellant.
    The Brady violation of admissible evidence at defendant’s trial mandates a retrial regardless of its admissibility at such retrial. (Brady v Maryland, 373 US 83; Miranda v Arizona, 384 US 436; Rhode Island v Innis, 446 US 291; People v Bethea, 67 NY2d 364; Kyles v Whitley, 514 US 419; People v Wright, 86 NY2d 591; United States v Gil, 297 F3d 93; People v Bryce, 88 NY2d 124; United States v Bagley, 473 US 667; People v Vilardi, 76 NY2d 67.)

      Richard J. McNally Jr., District Attorney, Troy (Ian H. Silverman of counsel), for respondent.
    I. Even if the determinative test for a Brady violation occurs at the time of trial, the evidence of the Schenectady County complaint was not Brady material. (Brady v Maryland, 373 US 83; People v Mandel, 48 NY2d 952; People v Chin, 67 NY2d 22.) II. Upon retrial the defense should be precluded from questioning the victim about the Schenectady County complaint. III. It is consistent with the public policy of New York to preclude the defense from questioning the victim about the Schenectady County complaint. (People v Westfall, 95 AD2d 581.)
   OPINION OF THE COURT

Smith, J.

Defendant was charged with rape, sodomy and sexual abuse, and convicted of sodomy, after a young woman testified that he raped and otherwise assaulted her during a visit to his home. Before defendant’s trial the People learned, but did not tell defendant, that the same woman had recently accused another man of raping her in that man’s home. We hold, based on the facts of this case, that the People violated their obligations under Brady v Maryland (373 US 83 [1963]).

I

The event at the center of this case took place on December 9, 2001. At the trial, which began on November 6, 2002, the 17-year-old complainant testified that she had met the 33-year-old defendant for the first time on the day in question, and accepted his invitation to watch a movie at his house. While she was there, she testified, defendant, against her will, penetrated her with his penis and his fingers and performed oral sex on her. Defendant testified that only oral sex took place, and that the complainant consented. He testified, in substance, that the complainant first welcomed his advances, then told him to stop; that he stopped as soon as she asked him to; and that, as soon as she put her clothes back on, she inexplicably ran out of the house. He testified that he pursued her to ask what the problem was, and that her reply was “You raped me.”

The forensic evidence was inconclusive. Each side spent considerable effort in shoring up the credibility of one of the main witnesses, and tearing down the other’s.

The People proved that the complainant made her accusation immediately after the event, to her 13-year-old friend and her mother. These two witnesses also testified that defendant admitted to them that the complainant had been saying “no” during their encounter. In addition, the People suggested that defendant’s version of the events was inherently incredible.

Defendant, for his part, brought out substantial inconsistencies between the complainant’s original account of the event and her testimony at trial. He produced witnesses (though not impartial ones) to support his claim that the complainant had met him before the evening in question. He called two witnesses to testify that the complainant was known in the community as a liar—and one of those witnesses was the complainant’s own father.

The complainant’s father also testified to an occasion when his daughter flew into such a violent rage that he threatened to call the police, and she responded by saying, “[G]o ahead, call the cops. I will tell them you raped me.” He said that he did call the police, and that the complainant did not follow through on her threat—a point the People stressed in closing argument: “[Wjhatever [the complainant] said, if she said anything, was not taken seriously by [her father’s] own words, it didn’t bother him. There was no police report. There was [sic] no statements to police. There were no charges filed.”

The jury’s verdict implies that it did not wholly believe or disbelieve either of the two main witnesses: it acquitted defendant of rape and sexual abuse, but convicted him of sodomy in the first degree (oral sex by forcible compulsion).

After the trial, defendant learned that a man named Parker had been indicted for raping the same complainant. The alleged Parker rape took place in Parker’s home on October 10, 2002, some 10 months after the incident involving defendant and about a month before defendant’s trial. In a statement given on the day of the event, Parker admitted to having sex with the complainant, but said she consented to it. On May 27, 2003, several months after defendant’s trial, Parker pleaded guilty to attempted rape of the complainant, and received a seven years and six months sentence, to run concurrently with a sentence of equal length imposed on him for an unrelated robbery.

Defendant moved, pursuant to CPL 440.10, to set aside his conviction, claiming the People had withheld Brady material. After the motion was made, the parties stipulated that the prosecutor who tried the case had learned of the accusation against Parker shortly before defendant’s trial, but had not told the defense about it.

County Court granted defendant’s motion, but the Appellate Division reversed. Relying on People v Mandel (48 NY2d 952 [1979], cert denied 446 US 949 [1980]), the Appellate Division held that evidence of complainant’s accusation against Parker would not have been admissible at trial to impeach the complainant, because defendant had not shown either that the accusation was false or that it was similar enough to the complainant’s accusation of defendant to suggest “a pattern of false complaints” (41 AD3d 885, 888 [2007]). The Appellate Division relied on Parker’s guilty plea, but also said that, even before the guilty plea, defendant could not have shown the falsity of the Parker allegation.

A Judge of this Court granted leave to appeal, and we now reverse.

II

Brady holds “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution” (373 US at 87). In this case, the parties dispute whether the complainant’s accusation of Parker was “material” to the question of defendant’s guilt. Where, as here, the defense did not specifically request the information, the test of materiality is whether “there is a reasonable probability that had it been disclosed to the defense, the result would have been different— i.e., a probability sufficient to undermine the court’s confidence in the outcome of the trial” (People v Bryce, 88 NY2d 124, 128 [1996]). We conclude that that test is satisfied.

The Appellate Division held that the information about Parker was immaterial because, in the Appellate Division’s view, it could not have been used to impeach the complainant’s testimony at trial. Defendant argues that the information would be subject to Brady even if it was not itself admissible in evidence (see United States v Gil, 297 F3d 93, 104 [2d Cir 2002]), but we need not consider that argument because we disagree with the Appellate Division’s view that it would have been inadmissible.

The Appellate Division’s opinion puts heavy emphasis on Parker’s guilty plea to attempted rape months after defendant’s trial. But that plea was irrelevant to what the People’s duties under Brady were at the time of trial and before. If the information known to the People when this case was tried was “favorable to [the] accused” and “material” within the meaning of Brady, defendant had a due process right to obtain it, and that right could not be nullified by post-trial events.

The Appellate Division held in the alternative that, even before Parker’s guilty plea, information about the complainant’s charge against him would have been inadmissible under Mandel, but the Appellate Division read Mandel too broadly. In that case, we held “that there was [no] abuse of the discretion vested in the trial court” when the court refused to permit impeachment of the victim’s testimony with previous, allegedly false, rape complaints (48 NY2d at 954). We did not hold the evidence inadmissible as a matter of law. Here, assuming that County Court would have had discretion under Mandel to forbid impeachment of the complainant with the Parker information, it would also have had discretion to permit it—and County Court made clear, in its opinion granting defendant’s CPL article 440 motion, that it would have exercised that discretion in defendant’s favor. The information was, in substance, that the complainant had accused Parker of rape, as she had defendant; that her encounter with Parker, like her encounter with defendant, took place in the accused man’s home; and that, according to Parker, the complainant willingly had sex with him and then lied about it. It would not have been an abuse of discretion for County Court to permit defendant to confront the complainant with these facts on cross-examination.

The remaining question is whether, if defendant had used the information about Parker to impeach the complainant, there is a reasonable probability he would have been acquitted. This is a close question, but our answer to it is yes. Admittedly, it would have seemed possible, even before Parker’s guilty plea, that complainant’s accusation of him was true; but it would also have seemed possible it was not, and thus the Parker evidence would have added a little more doubt to the jury’s view of the complainant’s allegations. We find it reasonably probable that a little more doubt would have been enough.

In this difficult case, an important point in the People’s favor was the apparent implausibility of defendant’s version of events: that the complainant suddenly interrupted their voluntary encounter and decided, for no obvious reason, to accuse him of a sexual assault. Defendant did try to suggest a motive for the false accusation—ill will between the complainant’s mother and defendant’s roommate, resulting from a romantic relationship between them—but the evidence of this was meager, and the motive seems a weak one. That the same complainant later made a similar accusation against another man, who also claimed their encounter was consensual, might well have persuaded the jury to be significantly less skeptical of defendant’s story, and more skeptical of the complainant’s.

The People suggest that, since the jury heard the complainant’s father testify that she threatened to accuse him falsely of rape, the information about Parker would have been essentially cumulative. We disagree. The Parker information was different from the father’s testimony in significant ways: the motive for the threat the father described was obvious; the circumstances of the rape she supposedly threatened to accuse him of were not similar to those in defendant’s case; and, as the People emphasized in summation, there were in the father’s case “no statements to police ... no charges filed.” And even if the circumstances involving the complainant’s father and Parker were similar, the Parker information would not be insignificant. A jury might well find that three actual or threatened allegations of rape raised larger questions about the complainant’s credibility than two.

Accordingly, the order of the Appellate Division should be reversed, defendant’s motion under CPL 440.10 to vacate his conviction granted, and a new trial ordered.

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

Order reversed, etc.


author: Ciparick, J.

text:
    [892 NE2d 380, 862 NYS2d 316]
    Landau, P.C., as Successor, by Change of Name, to Morris J. Eisen, P.C., Appellant, et al., Plaintiff, v LaRossa, Mitchell & Ross, et al., Respondents.
    Argued June 3, 2008;
    decided June 25, 2008

      POINTS OF COUNSEL

      Bernstein Litowitz Berger & Grossmann LLP, New York City (John P. Coffey, Max W. Berger and Jai K. Chandrasekhar of counsel), Duane Morris LLP (Thomas R. Newman of counsel) and Harrington Henry LLP, for appellant.
    I. Justice Bransten’s nonfinal, non-merits-based dismissal of the prior action without prejudice cannot form the basis of res judicata. (Miller Mfg. Co. v Zeiler, 45 NY2d 956; Allende v New York City Health & Hosps. Corp., 90 NY2d 333; Stiles v Batavia Atomic Horseshoes, 81 NY2d 950, 1068; City of New York v Caristo Constr. Corp., 94 AD2d 688, 62 NY2d 819; Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343; GTFM, LLC v Nagy, 18 AD3d 266; Schindler v Issler & Schrage, 262 AD2d 226, 94 NY2d 791, 859; Iacono v Japan Line, 89 AD2d 948; Alco Gravure, Inc. v Knapp Found., 64 NY2d 458; Matter of Schulz v State of New York, 81 NY2d 336.) II. Landau, P.C. has capacity to maintain its claims against defendants-respondents because it was reinstated nunc pro tunc under Tax Law § 203-a (7). (St. James Constr. Corp. v Long, 253 AD2d 754; Erljur Assoc. v Weissman, 134 AD2d 321; Tedesco v A.P. Green Indus., Inc., 8 NY3d 243; People ex rel. Matthews v New York State Div. of Parole, 95 NY2d 640; Telaro v Telaro, 25 NY2d 433.) III. Landau, P.C. is entitled to the six-month grace period to file a new action on the same claims under CPLR 205 (a) because Landau, P.C. was restored to good corporate standing under Tax Law § 203-a (7). (George v Mt. Sinai Hosp., 47 NY2d 170; Freedman v New York Hosp. Med. Ctr. of Queens, 9 AD3d 415; Vigliotti v Ricci, 229 AD2d 389; Hillen v Di Paolo, 100 AD2d 893; Carrick v Central Gen. Hosp., 51 NY2d 242; McGuire v Southside Hosp., 301 AD2d 505; Brown v Huntington Med. Group, 238 AD2d 367; Lancaster v 46 NYL Partners, 228 AD2d 133; Brown v Zaino, 226 AD2d 492; Ballav v Deepdale Gen. Hosp., 196 AD2d 520.)

      Martin Clearwater & Bell LLP, New York City (Nancy A. Breslow, Peter T. Crean and Thomas A. Mobilia of counsel), for respondents.
    This action was properly dismissed on res judicata grounds. (Smith v Russell Sage Coll., 54 NY2d 185; Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481; Matter of Shea, 309 NY 605; Forte v Kaneka Am. Corp., 110 AD2d 81; O’Brien v City of Syracuse, 54 NY2d 353; Schneider v David, 197 AD2d 363; Ryan v New York Tel. Co., 62 NY2d 494; S.T. Grand, Inc. v City of New York, 32 NY2d 300; Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343; Marinelli Assoc. v Helmsley-Noyes Co., 265 AD2d 1.)
   OPINION OF THE COURT

Ciparick, J.

In this appeal, we are asked to determine whether a judgment dismissing a complaint “without prejudice,” on the basis of a corporation’s lack of capacity, has res judicata effect on a subsequent action brought by the corporation’s successor. We conclude that it does not.

From 1974 until his disbarment in January 1992, Morris J. Eisen was the sole shareholder and managing partner of the law firm Morris J. Eisen, P.C. (Eisen, P.C.). On August 11, 1986, the City of New York filed a civil action against Eisen, P.C. and various individuals, alleging that they had defrauded the City by presenting false testimony in three negligence actions in which the City was a defendant. Eisen, P.C. retained defendant law firm to defend the action. While the City’s civil action was pending, Eisen was tried in federal court for bribery, mail fraud and racketeering in connection with his representation of 11 personal injury plaintiffs, which resulted in his 1991 conviction. As a result of Eisen’s conviction, he was disbarred on January 23, 1992 (see Matter of Eisen, 174 AD2d 141 [1st Dept 1992]).

On September 4, 1992, an amended certificate of incorporation was filed with the Secretary of State changing the name of Eisen, P.C. to Landau, P.C., and naming Eisen’s daughter, Debbi Landau (an attorney), as the director, president, secretary and shareholder of Landau, P.C. However, in a December 30, 1992 document entitled “Written Consent of Sole Director and Shareholder,” Eisen asserted that he was the sole director and shareholder of Landau, P.C. and that Landau, P.C. was to be liquidated and dissolved. That same day Eisen also executed a document entitled “Assignment Agreement” in which he, as president of Landau, P.C., assigned Landau, P.C.’s assets, subject to the assignor’s liabilities, to himself. Additionally, on an IRS Form 966—corporate dissolution or liquidation—dated February 1, 1993, Eisen, as president of Landau, P.C., affirmed that Landau, P.C. was dissolved and liquidated on December 30, 1992.

On February 24, 1995, Supreme Court granted the City of New York partial summary judgment on its claims. Eisen and Eisen, P.C. unsuccessfully sought renewal, reargument and/or vacatur of Supreme Court’s order, arguing that newly discovered evidence would rebut the City’s claim for damages and that the court misapplied the doctrine of collateral estoppel.

Eisen and Eisen, P.C. then initiated the first legal malpractice lawsuit against defendants, alleging that they failed to properly oppose the City of New York’s motion for summary judgment. Defendants moved pre-answer to dismiss the complaint for lack of standing, contending that Eisen, as a disbarred attorney, could not bring suit individually or on behalf of Eisen, P.C. Defendants additionally moved to dismiss on the grounds that: (1) collateral estoppel barred Eisen and Eisen, EC. from establishing proximate cause because any of the alleged damages were the result of the federal criminal convictions for racketeering, bribery and fraud, and (2) Eisen, P.C., as a corporation dissolved pursuant to Tax Law § 203-a, lacked the capacity to initiate a lawsuit.

Supreme Court, by order dated January 10, 2000, dismissed the complaint, concluding that Eisen in his individual capacity lacked standing to assert a claim on behalf of Eisen, P.C. The court further held that Eisen, P.C. lacked the capacity to initiate the action because it was a dissolved corporation—due either to the December 1992 or the March 1997 dissolution—that can only assert claims to wind up the corporation’s affairs. A malpractice action, the court reasoned, could not be deemed part of the winding up of the P.C.’s affairs.

Eisen and Eisen, P.C. then moved to renew and reargue Supreme Court’s January 10, 2000 decision and sought an order, pursuant to CFLR 3025, for leave to serve an amended complaint adding Landau, P.C., as successor to Eisen, P.C., as plaintiff and to allege causes of action on behalf of Eisen as a liquidation shareholder and assignee of Landau, P.C. Eisen and Eisen, P.C. asserted that based upon the Secretary of State’s annulment of the dissolution proclamation, Landau, P.C. had standing to bring the legal malpractice action on its own behalf. Supreme Court denied the motions and the Appellate Division affirmed both orders without opinion (see Morris J. Eisen, P.C. v LaRossa, Mitchell & Ross, 282 AD2d 996 [1st Dept 2001]).

Defendants then moved to amend Supreme Court’s June 25, 2001 judgment to provide that the dismissal of Eisen and Eisen, EC.’s complaint be changed from “with prejudice” to “without prejudice.” Supreme Court granted defendants’ motion stating that the parties agreed to substitute the court’s June 25, 2001 judgment with the order of Supreme Court dated September 18, 2001, thereby changing the dismissal of Eisen and Eisen, P.C.’s complaint to “without prejudice” (see Morris J. Eisen, P.C. and Morris J. Eisen v LaRossa, Mitchell & Ross et al., Sup Ct, NY County, Sept. 18, 2001, Bransten, J., index No. 112652/98).

Landau, P.C. as successor, by change of name, to Morris J. Eisen, P.C., and Morris J. Eisen, as plaintiff, then commenced the instant action by serving a virtually identical summons and complaint. Defendants moved to dismiss the second action on a number of grounds. Supreme Court stated that “[t]he most compelling ground, and the one on which defendants['] motion is now being granted, is res judicata” (see Landau, P.C. v LaRossa, Mitchell & Ross, 6 Misc 3d 1018[A], 2003 NY Slip Op 51746[U], *2 [Sup Ct, NY County 2003]). Landau, P.C. then sought reargument on the ground that the earlier decisions could not serve as a bar under the doctrine of res judicata because the orders were not a final determination on the merits. The court granted plaintiff’s motion for reargument, but adhered to its original decision. Supreme Court held in defendants’ favor and the Appellate Division affirmed (see Landau, P.C. v LaRossa, Mitchell & Ross, 41 AD3d 371 [1st Dept 2007]). We now reverse.

In Parker v Blauvelt Volunteer Fire Co. (93 NY2d 343 [1999]), we stated that

“[u]nder res judicata, or claim preclusion, a valid final judgment bars future actions between the same parties on the same cause of action. As a general rule, once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy” (id. at 347 [internal quotation marks and citations omitted]).

In this case, there has not been a valid final judgment deciding the merits of the legal malpractice claim asserted by Landau, EC. Although Landau, EC. initially lacked capacity to initiate the subject litigation in that it had been dissolved by proclamation of the Secretary of State pursuant to Tax Law § 203-a for failure to pay franchise taxes, this deficiency was cured when Landau, EC. paid the required fees (see Tax Law § 203-a [7]). Thus, Landau, EC. was restored to the status it had when it was dissolved by proclamation on March 26, 1997.

Defendants assert that res judicata should be applied. However, a dismissal “without prejudice” lacks a necessary element of res judicata—by its terms such a judgment is not a final determination on the merits (see e.g. Miller Mfg. Co. v Zeiler, 45 NY2d 956, 958 [1978]). When defendants moved to amend Supreme Court’s judgment dated June 25, 2001 to provide that the dismissal of Eisen and Eisen, EC.’s complaint be changed from “with prejudice” to “without prejudice,” this was a clear acknowledgment by the parties and the motion court that the merits of this case have yet to be decided.

As we stated in Matter of Grainger (Shea Enters.), “[t]he general doctrine of res judicata gives binding effect to the judgment of a court of competent jurisdiction and prevents the parties to an action, and those in privity with them, from subsequently re-litigating any questions that were necessarily decided therein” (309 NY 605, 616 [1956]). The record before us reveals that the only matters litigated below concern the standing and/or capacity of Eisen, Eisen, EC. and Landau, EC. to assert a legal malpractice cause of action against defendants. The merit of Landau, P.C.’s legal malpractice claim has not previously been addressed.

Further, in Matter of Schulz v State of New York (81 NY2d 336, 347 [1993]) and in Town of Hardenburgh, Ulster County, N.Y. v State of New York (52 NY2d 536, 540 [1981]), we recognized that when the disposition of a case is based upon a lack of standing only, the lower courts have not yet considered the merits of the claim (Matter of Schulz v State of New York, 81 NY2d at 347). We agree that “[i]t would be inequitable to preclude a party from asserting a claim under the principle of res judicata, where, as in this case, [t]he court in the first action has expressly reserved the plaintiffs right to maintain the second action’ ” (Parker v Blauvelt Volunteer Fire Co., 93 NY2d at 349, quoting Restatement [Second] of Judgments § 26 [1] [b]). We remain mindful that if applied too rigidly, res judicata has the potential to work considerable injustice. “In properly seeking to deny a litigant ‘two days in court’, courts must be careful not to deprive him of one” (Matter of Reilly v Reid, 45 NY2d 24, 28 [1978]). Landau, EC. has yet to have its day in court to litigate the merits of its legal malpractice claim against defendants and therefore we find that res judicata is not applicable to plaintiff in this case.

We have examined the parties’ remaining contentions and find them to be without merit.

Accordingly, the order of the Appellate Division should be reversed, with costs, and defendants’ motion to dismiss the complaint denied.

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

Order reversed, etc.

      . In a document dated September 1999, Debbi Landau, as sole director and former shareholder of Landau, EC., adopted the plan of liquidation and dissolution as set forth in the December 30, 1992 Written Consent of Sole Director and Shareholder.

      . See Restatement (Second) of Judgments § 24 (1) (“When a valid and final judgment rendered in an action extinguishes the plaintiffs claim pursuant to the rules of merger or bar . . . , the claim extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose”); see also Restatement (Second) of Judgments § 26 (1) (stating that in the following circumstance “the general rule of § 24 does not apply to extinguish the claim, and part or all of the claim subsists as a possible basis for a second action by the plaintiff against the defendant: . . . [b] [t]he court in the first action has expressly reserved the plaintiffs right to maintain the second action”).

      . See 10 Weinstein-Korn-Miller, NY Civ Prac H 5011.11, at 50-116 (2d ed) (“Whereas a dismissal based on the statute of limitations or statute of frauds grounds is a determination that the matter is irremediably flawed as a matter of law, it is equivalent to a determination on the merits for res judicata purposes. At the opposite end of the spectrum, dismissal for prematurity, lack of standing, absence of ability of the court to proceed by reason of a defect in jurisdiction over subject matter or person or other forms of procedural inadequacy unique to the particular case in the particular forum are not intended to have any determinative effect ‘on the merits’ of the action”).


author: Graffeo, J.

text:
    [892 NE2d 375, 862 NYS2d 311]
    Adina Marmelstein, Appellant, v Kehillat New Hempstead: The Rav Aron Jofen Community Synagogue, Defendant, and Mordecai Tendler, Respondent.
    Argued June 3, 2008;
    decided June 25, 2008

      POINTS OF COUNSEL

      Kramer & Dunleavy, L.L.P., New York City (Lenore Kramer and Jonathan R. Ratchik of counsel), for appellant.
    I. The First Department erred when it held that defendant-respondent did not stand in a fiduciary relation with plaintiff-appellant and did not owe her a duty not to abuse their relationship of trust and confidence. (Fearon v Treanor, 272 NY 268; Aadland v Flynn, 27 Misc 2d 833, 14 AD2d 837; Roy v Hartogs, 85 Misc 2d 891; Tuck v Tuck, 14 NY2d 341; Penato v George, 52 AD2d 939; Noto v St. Vincent’s Hosp. & Med. Ctr. of N.Y., 142 Misc 2d 292; Matter of Reddy v State Bd. for Professional Med. Conduct, 259 AD2d 847; Matter of Morrison v DeBuono, 255 AD2d 710.) II. New York State should recognize the existence of a fiduciary relationship between a cleric and a parishioner. (Wende C. v United Methodist Church, N.Y. W. Area, 4 NY3d 293; Langford v Roman Catholic Diocese of Brooklyn, 271 AD2d 494; Sanders v Casa View Baptist Church, 134 F3d 331.) III. The First Department erred when it held that plaintiff-appellant’s cause of action for intentional infliction of emotional distress was barred by the Civil Rights Law. (Murphy v American Home Prods. Corp.,
      58 NY2d 293; Noto v St. Vincent’s Hosp. & Med. Ctr. of N.Y., 142 Misc 2d 292, 160 AD2d 656; Sanchez v Orozco, 178 AD2d 391; Shannon v MTA Metro-N. R.R., 269 AD2d 218; Roy v Hartogs, 85 Misc 2d 891; Tuck v Tuck, 14 NY2d 341.)

      Richard H. Bliss, New York City, and Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, White Plains, for respondent.
    I. The Appellate Division correctly determined that plaintiff-appellant’s remaining claims for breach of fiduciary duty and intentional infliction of emotional distress were thinly-veiled claims of seduction barred by Civil Rights Law § 80-a. (Gaden v Gaden, 29 NY2d 80; Coopersmith v Gold, 172 AD2d 982; Parker v Hoefer, 2 NY2d 612; Sahid v Chambers, 237 AD2d 175, 90 NY2d 805; Licata v Kelley, 217 AD2d 973; Roney v Janis, 77 AD2d 555, 53 NY2d 1025; Wende C. v United Methodist Church, N.Y.W. Area, 6 AD3d 1047, 4 NY3d 293, 546 US 818; Aadland v Flynn, 27 Misc 2d 833, 14 AD2d 837; Roy v Hartogs, 85 Misc 2d 891; Tuck v Tuck, 14 NY2d 341.) II. The complaint fails to state a cause of action for breach of fiduciary duty. (Zumpano v Quinn, 6 NY3d 666; Wende C. v United Methodist Church, N.Y.W. Area, 4 NY3d 293, 546 US 818; Langford v Roman Catholic Diocese of Brooklyn, 271 AD2d 494; Matter of Clara C. v William L., 96 NY2d 244; EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11; Penato v George, 52 AD2d 939, 42 NY2d 908; United States v Chestman, 947 F2d 551, 503 US 1004; Doyle v Turner, 90 F Supp 2d 311, affd sub nom. Hughley v Local 1199, Drug, Hosp. & Health Care Empls. Union, RWDSU, 231 F3d 889; Sears v First Pioneer Farm Credit, ACA, 46 AD3d 1282; Johnston v De-Haan, 37 AD2d 1028.) III. The cause of action for intentional infliction of emotional distress was properly dismissed. (Howell v New York Post Co., 81 NY2d 115; Murphy v American Home Prods. Corp., 58 NY2d 293; Burlew v American Mut. Ins. Co., 63 NY2d 412; Freihofer v Hearst Corp., 65 NY2d 135; Fischer v Maloney, 43 NY2d 553; Sheila C. v Povich, 11 AD3d 120; Maas v Cornell Univ., 94 NY2d 87; Gertler v Goodgold, 107 AD2d 481, 66 NY2d 946; Lightman v Flaum, 278 AD2d 373, 97 NY2d 128, 535 US 1096; Noto v St. Vincent’s Hosp. & Med. Ctr. of N.Y., 142 Misc 2d 292, 160 AD2d 656.)
   OPINION OF THE COURT

Graffeo, J.

This case requires us to consider whether the allegations in the complaint establish a viable cause of action for breach of fiduciary duty against a cleric premised on an alleged 372-year sexual relationship between consenting adults. We agree with the Appellate Division that the complaint must be dismissed.

I

Plaintiff Adina Marmelstein commenced this lawsuit in December 2005 against defendant Mordecai Tendler (an Orthodox Jewish rabbi) and his employer, defendant Kehillat New Hempstead: The Rav Aron Jofen Community Synagogue (KNH). The causes of action set forth in the complaint stem from an intimate relationship that allegedly occurred between Tendler, the founder and leader of KNH, and Marmelstein. According to Marmelstein, Tendler had cultivated a reputation as an educator and scholar within the Orthodox community, with particular expertise in women’s issues. Marmelstein and Tendler first became acquainted in 1994, when she began to contact him by telephone to discuss “various personal issues.” The following year, Tendler initiated efforts to recruit Marmelstein to join KNH’s congregation and, in September 1996, she began to attend services at his synagogue.

Marmelstein claims that during this period, Tendler counseled and advised her on a variety of personal, legal and financial problems, including her desire to find a husband and have children. The complaint states that Tendler enticed Marmelstein by telling her that she was his “favorite” and “closest,” and that he “would ‘be there’ for all of her needs.” She claims that as a “relationship of confidence and trust” developed, Tendler acted as “an advisor, a father figure and a god,” tellipg her that he “was as close to God as anyone could get,” that he “talks to God all the time” and that he was, in fact, “the Messiah.”

Regarding her marital status concerns, Marmelstein recounts that Tendler explained that she was “closed to the possibility of finding a husband” and her “only hope” was to engage in a sexual relationship with him, which would “open her up to the world” in order to become more attractive to men. The complaint characterizes this as a “course of sexual therapy” suggested by Tendler to assist Marmelstein in her quest to attain marriage and a family. Marmelstein acknowledges that she acquiesced and began a sexual relationship with Tendler in November 2001, continuing to May 2005.

During their relationship, Marmelstein contends that Tendler intimidated her by his declarations that if she disclosed their sexual arrangement to anyone, he would “have her placed in a straight jacket,” “have her banned from the shul (synagogue)” and “turn the community against her.” After the affair ended, Marmelstein alleges that her reputation was impugned by Tendler to the extent that she lost her standing in her religious community and left the synagogue.

There are five causes of action in Marmelstein’s complaint. The first claim, premised on fraud, maintains that Tendler intentionally deceived her and induced her to engage in sexual relations that she would not have consented to if she had known that the “therapy” he advised was “solely for his personal pleasure and gratification.” In her second cause of action, Marmelstein asserts that Tendler “occupied a position as fiduciary” because he was her “counselor, advisor and therapist,” and that Tendler breached his fiduciary duty. The third and fourth causes of action, for intentional and negligent infliction of emotional distress, state that Tendler encouraged the congregants of KNH to “harass, threaten and intimidate” Marmelstein, and that Tendler “engaged in a concerted scheme to embarrass, humiliate and diminish” her such that she was ostracized from the community. The fifth cause of action is directed against KNH for negligently retaining Tendler as the synagogue’s rabbi.

Tendler denied all of Marmelstein’s allegations and moved to dismiss the complaint on two grounds—failure to state a cause of action and that the action was barred by the statute of limitations. Supreme Court dismissed the fraud claim as a veiled attempt to plead a seduction cause of action prohibited by Civil Rights Law § 80-a. With respect to the breach of fiduciary duty claim, the court rejected Tendler’s argument that the claim was precluded by the First Amendment because Marmelstein sought advice on how to find a husband, not on religious or spiritual matters and, therefore, a jury would not be asked whether Tendler acted in accord with religious doctrine. The court did, however, hold that the three-year statute of limitations applied to this claim, and restricted the breach of fiduciary duty allegations to conduct occurring after December 2002. Supreme Court also declined to dismiss the intentional infliction of emotional distress and negligent retention causes of action; the court dismissed the negligent infliction of emotional distress claim for lack of an allegation that Tendler committed any negligent acts.

On appeal, the Appellate Division dismissed the two remaining causes of action—breach of fiduciary duty and intentional infliction of emotional distress—concluding that both were barred by Civil Rights Law § 80-a. In addressing the breach of fiduciary duty claim, the Appellate Division determined that cause of action failed because the complaint contained only general allegations that were insufficient to demonstrate the existence of a true fiduciary relationship. Two Justices dissented, finding that Marmelstein’s allegations were not seduction claims and that she had adequately pleaded a fiduciary bond with Tendler. Marmelstein appeals as of right, and we now affirm.

II

This is not the first occasion we have had to consider civil actions based on allegations of misconduct by members of the clergy. In Lightman v Flaurn (97 NY2d 128 [2001], cert denied 535 US 1096 [2002]), we were asked whether civil liability could be imposed under CPLR 4505 against a cleric for the disclosure of confidential communications. In rejecting the notion that the statutory cleric-penitent privilege created a fiduciary relationship, we noted that a cause of action for clergy malpractice had “troubling constitutional implications” under the First Amendment where the finder of fact would be required to decide whether a cleric’s actions comported with religious doctrine (id. at 137). More recently, in Wende C. v United Methodist Church, N.Y. W. Area (4 NY3d 293 [2005], cert denied 546 US 818 [2005]), the plaintiff asserted that her pastor had engaged in sexual relations with her during a course of marital counseling, while “ ‘acting within the authority granted to him by the defendant Church . . . under the guise of his role as pastor in the ministerial relationship between himself and ... a congregant, and [in] his position as a responsible member of the clergy’ ” (id. at 299). In resolving this case, we left open the question whether sexual misconduct by a cleric could be redressed under an alternative theory of breach of fiduciary duty because the allegations in the complaint sounded in clergy malpractice and involved the examination of ecclesiastical doctrine to establish “the standard of due care owed to parishioners undergoing ministerial counseling” (id.)—the precise concern expressed in Lightman.

Here, Marmelstein attempts to avoid these First Amendment entanglement problems—she does not specifically refer to Tendler as a rabbi and the complaint does not state that a ministerial relationship existed between Marmelstein and Tendler, or that the counsel Tendler provided to Marmelstein was guided or influenced by religious beliefs. Like the Appellate Division, we view the absence of such allegations as unusual given that Tendler is the spiritual leader of a synagogue and Marmelstein claims that Tendler’s control over his community “permeate[d] all aspects of life, both religious and nonreligious, including personal, family, business and other lifestyle issues.”

Even assuming that Marmelstein has surmounted First Amendment barriers, we conclude that her breach of fiduciary duty cause of action fails for another reason: the facts asserted insufficiently demonstrate that she developed a fiduciary relationship with Tendler. “A fiduciary relationship ‘exists between two persons when one of them is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation’ ” (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005], quoting Restatement [Second] of Torts § 874, Comment a). Whether a fiduciary relationship has been established is an inquiry that is “necessarily fact-specific” (id.). In undertaking that determination, we have noted that two “essential elements of a fiduciary relation are . . . ‘de facto control and dominance’ ” (Northeast Gen. Corp. v Wellington Adv., 82 NY2d 158, 173 [1993, Hancock, J., dissenting], quoting United States v Reed, 601 F Supp 685, 708 [SD NY], revd on other grounds 773 F2d 477 [2d Cir 1985], quoting United States v Margiotta, 688 F2d 108, 125 [2d Cir 1982], cert denied 461 US 913 [1983], overruled on other grounds by McNally v United States, 483 US 350 [1987]).

Marmelstein claims that Tendler held himself out as a counselor and advisor and that he provided those services to her. But these general assertions alone are inadequate to cast Tendler as a fiduciary beyond that of ordinary cleric-congregant affiliations. Nor can Marmelstein show that a duty existed by merely stating, in a conclusory fashion, that Tendler acted as a fiduciary and that a relationship of trust existed. Rather, it is essential that a plaintiff articulate specific facts that will allow a court to distinguish a viable claim of breach of fiduciary duty from nonactionable seductive conduct, however reprehensible the offending conduct may be.

Allegations that give rise to only a general clergy-congregant relationship that includes aspects of counseling do not generally impose a fiduciary obligation upon a cleric. To establish that a course of formal counseling resulted in a cleric assuming “de facto control and dominance” over the congregant (Northeast Gen. Corp. v Wellington Adv., 82 NY2d at 173 [internal quotation marks omitted]), a congregant must set forth facts and circumstances in the complaint demonstrating that the congregant became uniquely vulnerable and incapable of self-protection regarding the matter at issue.

Judged by this standard, Marmelstein’s allegations fall short of a cause of action for breach of fiduciary duty. The facts alleged and the inferences derived therefrom demonstrate that Marmelstein voluntarily consented to a 3V2-year intimate relationship with Tendler because she subjectively believed that the “therapy” he suggested would help her find a husband. Although she contends that Tendler’s ulterior motive for inducing the sexual relationship was the fulfillment of his own gratification, rather than the achievement of Marmelstein’s goals, Marmelstein has shown only that she was deceived by Tendler, not that she was so vulnerable as to surrender her will and capacity to determine her own best interests. In the absence of a prima facie showing that a fiduciary obligation was owed by Tendler, no cause of action can be maintained for an extended voluntary sexual affair between consenting adults, even if Marmelstein could prove that her acquiescence was obtained through lies, manipulation or other morally opprobrious conduct (see Civil Rights Law § 80-a).

Marmelstein’s argument seeking to reinstate her cause of action for intentional infliction of emotional distress is also without merit. The complaint does not establish that Tendler’s conduct was “ ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency . . . and [was] utterly intolerable in a civilized community’ ” (Murphy v American Home Prods. Corp., 58 NY2d 293, 303 [1983], quoting Restatement [Second] of Torts § 46, Comment d).

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

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

Order affirmed, with costs.

      . This statute, addressing causes of action for “alienation of affections, criminal conversation, seduction, or breach of contract to marry,” is referred to as the “heart balm” statute and provides, in pertinent part: “The rights of action to recover sums of money as damages for alienation of affections, criminal conversation, seduction, or breach of contract to marry are abolished. No act done within this state shall operate to give rise, either within or without this state, to any such right of action” (Civil Rights Law § 80-a).

      . Marmelstein did not appeal Supreme Court’s rejection of the fraud and negligent infliction of emotional distress causes of action. The lack of a viable cause of action against Tendler necessarily caused the negligent retention claim against KNH to fail, so all parties recognize that cause of action as being dismissed.

      . This is not to suggest that a cleric who is also a licensed professional, such as a psychiatrist, psychologist or attorney, could not assume fiduciary obligations under existing laws and the secular standards that govern the practice of those professions.

        . Of course, there is a critical difference in the viability of a civil action premised on sexual contact between a cleric and a person who is incapable of consent, such as a minor (see e.g. Martinelli v Bridgeport R.C. Diocesan Corp., 196 F3d 409 [2d Cir 1999]).