text:
    The People of the State of New York, Respondent, v Keith Antwine, Appellant.
    Submitted January 8, 2007;
    decided January 11, 2007
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York, Respondent, v Enrique Hernandez, Appellant.
    Submitted January 8, 2007;
    decided January 11, 2007
   Motion for assignment of counsel granted and Lynn WL. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v John R. Lagana, Appellant.
    Submitted January 8, 2007;
    decided January 11, 2007
   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 Nico LeGrand, Appellant.
    Submitted January 8, 2007;
    decided January 11, 2007
   Motion by Innocence Project, 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 may be served and 24 copies filed within seven days.


text:
    The People of the State of New York, Respondent, v Nico LeGrand, Appellant.
    Submitted January 8, 2007;
    decided January 11, 2007
   Motion by Legal Aid Society et al. for leave to file a brief and appendix amici curiae on the appeal herein granted. Three copies of the brief, with appendix attached thereto, may be served and an original and 24 copies of the brief, with appendix attached thereto, filed within seven days.


text:
    The People of the State of New York, Respondent, v Joshua Liner, Appellant.
    Submitted January 8, 2007;
    decided January 11, 2007
   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 Scott Parilla, Appellant.
    Submitted January 8, 2007;
    decided January 11, 2007
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Luis Rivera, Appellant.
    Submitted January 8, 2007;
    decided January 11, 2007
   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 Stephen Sedlock, Appellant.
    Submitted January 2, 2007;
    decided January 11, 2007
   Motion, pursuant to CPL 460.60 (3), to extend the time for argument or submission of the appeal and to continue the stay granted and stay continued pending determination of the appeal.


text:
    Security Pacific National Bank, Respondent, v Tracie Evans, Appellant, et al., Defendants.
    Submitted January 2, 2007;
    decided January 11, 2007
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Xavier Contracting, LLC, Respondent, v City of Rye et al., Appellants.
    Submitted November 13, 2006;
    decided January 11, 2007
   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:
    Michael Zafran, Appellant, v Lisa Zafran, Respondent.
    Submitted October 10, 2006;
    decided January 11, 2007
   Motion for leave to appeal denied. Motion for a preference dismissed as academic.


text:
    [862 NE2d 782, 830 NYS2d 691]
    Victor Coronel, Appellant, v The Chase Manhattan Bank, Respondent.
    Decided January 16, 2007
    APPEARANCES OF COUNSEL

      Victor Coronel, appellant pro se.

      Barry, McTiernan & Moore, New York City (Anthony J. Mc-Nulty of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, and certified question not answered as unnecessary. We agree with the Appellate Division that plaintiff failed to raise an issue of fact sufficient to defeat defendant bank’s summary judgment motion.

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


text:
    In the Matter of Susan Baba, Appellant, v Martin Evans et al., Respondents.
    Submitted January 8, 2007;
    decided January 16, 2007
   Motion by Gilbert Lau for leave to file a brief amicus curiae on the appeal herein denied. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Susan Baba, Appellant, v Martin Evans et al., Respondents.
    Submitted January 8, 2007;
    decided January 16, 2007
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Mariann Berliner, Respondent, v Ira Berliner, Appellant. (And Another Action.)
    Submitted November 13, 2006;
    decided January 16, 2007
   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 the Arbitration between Binghamton City School District et al., Respondents, and Brian Peacock, Appellant.
    Submitted January 8, 2007;
    decided January 16, 2007
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Blaylock & Partners, L.P., Respondent, v 609 Fifth Avenue Partners L.L.C., Appellant, et al., Defendant.
    Submitted November 20, 2006;
    decided January 16, 2007
   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 Guardianship of Chantel Nicole R., Appellant. Pamela R., Respondent; Attorney General of the State of New York, Intervenor.
    Submitted January 8, 2007;
    decided January 16, 2007
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Cohen Tauber Spievak & Wagner, LLP, Respondent, v Jeffrey Alnwick et al., Appellants.
    Submitted November 27, 2006;
    decided January 16, 2007
   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:
    Leslee Ferrero, Individually and as Administratrix of Peter Ferrero, Deceased, Appellant, v Best Modular Homes, Inc., Defendant and Third-Party Plaintiff-Respondent, and Lawn Ranger, Doing Business as K.O. Property Management, et al., Defendants and Third-Party Defendants.
    Submitted December 11, 2006;
    decided January 16, 2007
   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:
    Donna M. Hughes, Respondent, v Paul F. Farrey, Appellant.
    Submitted December 4, 2006;
    decided January 16, 2007
   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:
    Nahshon Jackson, Appellant, v State of New York, Respondent.
    Submitted December 4, 2006;
    decided January 16, 2007
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York, Respondent, v Carlos Perez, Appellant.
    Submitted January 8, 2007;
    decided January 16, 2007
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that it does not lie (see NY Const, art VI, § 3 [b]; CPLR 5601; CPL 450.90).


text:
    The People of the State of New York ex rel. Edward Brown, Appellant, v James Conway, as Superintendent of Attica Correctional Facility, Respondent.
    Submitted November 27, 2006;
    decided January 16, 2007
   Motion for leave to appeal dismissed upon the ground that this motion for leave to appeal does not lie from the order of the individual Justice of the Appellate Division (see NY Const, art VI, § 3 [b]; CPLR 5602). Motion for poor person relief dismissed as academic.


text:
    In the Matter of Donald Schupak, Appellant, v Zoning Board of Appeals of the Town of Marbletown et al., Respondents.
    Submitted November 20, 2006;
    decided January 16, 2007
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Supreme Court’s dismissal of the petition, denied; motion for leave to appeal otherwise dismissed upon the ground that the remaining part of the Appellate Division order does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Gino Rudolph Cobos, Appellant, et al., Petitioners, v Robert Dennison, as Chairman of New York State Division of Parole, et al., Respondents.
    Submitted January 22, 2007;
    decided February 13, 2007
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.

Judge Jones taking no part.


text:
    Days Impex Limited, Appellant, v Doha Bank, Defendant and Third-Party Plaintiff-Respondent. Bank of America et al., Third-Party Defendants-Respondents.
    Submitted November 20, 2006;
    decided February 13, 2007
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.

Judge Jones taking no part.


text:
    Manhattanville College, Appellant, v James John Romeo Consulting Engineer, P.C., et al., Respondents, et al., Defendants.
    Submitted December 4, 2006;
    decided February 13, 2007
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.

Judge Jones taking no part.


text:
    The People of the State of New York, Respondent, v Donna Carnett, Appellant.
    Submitted February 5, 2007;
    decided February 13, 2007
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 dismissed as untimely.

Judge Jones taking no part.


text:
    The People of the State of New York, Respondent, v Allen Harper, Appellant.
    Submitted January 18, 2007;
    decided February 13, 2007
   Motion for reargument denied [see 7 NY3d 882].

Judge Jones taking no part.


text:
    The People of the State of New York, Respondent, v Cynthia Long, Appellant.
    Submitted January 29, 2007;
    decided February 13, 2007
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.

Judge Jones taking no part.


text:
    The People of the State of New York, Respondent, v Joel Mark, Appellant.
    Submitted January 29, 2007;
    decided February 13, 2007
   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.

Judge Jones taking no part.


text:
    The People of the State of New York, Respondent, v Eric Means, Appellant.
    Submitted January 5, 2007;
    decided February 13, 2007
   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.

Judge Jones taking no part.


text:
    The People of the State of New York, Respondent, v Joseph Torres, Appellant.
    Submitted February 5, 2007;
    decided February 13, 2007
   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.

Judge Jones taking no part.


text:
    Reliance Insurance Company, Appellant, v Polyvision Corporation, Formerly Known as Information Display Technology, Defendant and Third-Party Plaintiff-Respondent. Sovereign Commercial Group, Inc., Third-Party Defendant-Respondent, et al., Third-Party Defendants.
    Submitted January 29, 2007;
    decided February 13, 2007
   Certification of question by the United States Court of Appeals for the Second Circuit, pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), accepted and the issues presented are to be considered after briefing and argument.

Concur: Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith and Pigott. Taking no part: Judge Jones.


text:
    [863 NE2d 588, 831 NYS2d 367]
    The People of the State of New York, Respondent, v Terrien Williams, Appellant.
    Argued January 4, 2007;
    decided February 15, 2007

      APPEARANCES OF COUNSEL

      Legal Aid Bureau of Buffalo, Inc., Buffalo (Karen C. Russo-McLaughlin, David C. Schopp and Barbara J. Davies of counsel), for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was charged in a five-count indictment with intentional murder in the second degree, felony murder, two counts of robbery in the second degree and criminal possession of a weapon in the third degree. The charges arose from an incident that took place on the night of August 31, 2001, when three assailants broke into the residence of Joy and Michael Johnson. In the course of the robbery one of the assailants shot Michael Johnson in the chest with a shotgun, and he died at the hospital a few hours later. At the station Joy Johnson told police that during the robbery, she looked up to see a man wearing a red bandana standing over her husband’s body with a shotgun still billowing smoke, and that she thought she could identify him if she saw him “up close.” Later that same day, Johnson saw defendant on a street corner, contacted police and identified defendant as the man holding the shotgun. She then picked him out of a photo array and, weeks later, out of two lineups.

After a jury trial, defendant was convicted on all counts except intentional murder. He now claims that he was denied a fair trial due to the prosecutor’s denigration of witnesses, disparagement of defendant’s alibi and misrepresentations to the jurors. Defendant, however, failed to preserve his objection to the vast majority of these alleged instances of prosecutorial misconduct. Objections defense counsel did make were largely sustained by the court, with no request for further relief or for a mistrial; the court several times on its own advised the jury that lawyers’ remarks were “not evidence.” We agree with the Appellate Division that defendant was not deprived of due process or a fair trial. We similarly reject defendant’s alternative claim that he was denied effective assistance of counsel. Defense counsel registered numerous objections throughout the trial, conducted rigorous cross-examination, and, among other things, moved for both a mistrial and a new trial, albeit on grounds not relevant here. As the record reflects zealous if not consistent advocacy, this contention is without merit.

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

Order affirmed in a memorandum.


text:
    Owen F. Burns III et al., Appellants, v James R. Varriale Jr., Defendant, and St. Paul/Travelers Insurance Company, Respondent. (And a Related Proceeding.)
    Submitted January 8, 2007;
    decided February 15, 2007
   Motion by the Injured Workers’ Bar Association for leave to file an affirmation/brief amicus curiae on the motion for leave to appeal herein granted and the affirmation/brief is accepted as filed.

Judge Jones taking no part.


text:
    Sergei Chepilko, M.D., Ph.D., Appellant, v Cornell University et al., Respondents.
    Submitted December 18, 2006;
    decided February 15, 2007
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain it (see NY Const, art VI, § 3; CPLR 5602). Motion for poor person relief dismissed as academic.

Judge Jones taking no part.


text:
    Ronald J. Herron et al., Respondents, v Essex Insurance Company, Respondent, and High Peak Agency, Inc., Appellant, et al., Defendant.
    Submitted December 18, 2006;
    decided February 15, 2007
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.

Judge Jones taking no part.


text:
    Lora Kojovic, Appellant, v Neal Goldman, Respondent.
    Submitted January 8, 2007;
    decided February 15, 2007
   Motion by the Women’s Bar Association of the State of New York for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.

Judge Jones taking no part.


text:
    The People of the State of New York, Respondent, v Douglas E. Kampfer, Appellant.
    Submitted February 5, 2007;
    decided February 15, 2007
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that it does not lie (see NY Const, art VI, § 3 [b]; CPLR 5601; CPL 450.90).

Judge Jones taking no part.


text:
    The People of the State of New York ex rel. Kermit Burns, Appellant, v Chris Mellas, as Superintendent of Watertown Correctional Facility, et al., Respondents.
    Submitted December 6, 2006;
    decided February 15, 2007
   Motion for leave to appeal dismissed upon the ground that relator has been released from custody and, therefore, his liberty is no longer restrained to such a degree as to entitle him to the extraordinary writ of habeas corpus (see People ex rel. Wilder v Markley, 26 NY2d 648 [1970]).

Judge Jones taking no part.


text:
    The People of the State of New York ex rel. John Chiarello, Appellant, v James L. Berbary, as Superintendent of Collins Correctional Facility, Respondent.
    Submitted December 26, 2006;
    decided February 15, 2007
   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.

Judge Jones taking no part.


text:
    In the Matter of Neil M. Siskind, Petitioner, v Courtney A. Schael, Appellant. Roberta Nancy Kaufman, Nonparty Respondent.
    Submitted January 2, 2007;
    decided February 15, 2007
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the proceeding within the meaning of the Constitution.

Judge Jones taking no part.


text:
    Sweeney, Cohn, Stahl & Vaccaro, et al., Respondents-Appellants, v George Kane et al., Appellants-Respondents, et al., Defendant.
    Submitted December 4, 2006;
    decided February 15, 2007
   Motion and cross motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.

Judge Jones taking no part.


text:
    In the Matter of Stephen J. Williams (Admitted as Stephen John Williams), an Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted January 16, 2007;
    decided February 15, 2007
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying appellant’s motions for reconsideration and for leave to appeal to the Court of Appeals, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.

Judge Jones taking no part.


text:
    [864 NE2d 606, 832 NYS2d 476]
    Nancy Giandana, Individually and as Administratrix of the Estate of Anna E. Demuth, Deceased, Respondent, v Providence Rest Nursing Home et al., Defendants. Providence Rest Nursing Home, Third-Party Plaintiff, v Ramar Services, Inc., Third-Party Defendant, and Becky Akosah, Third-Party Defendant-Appellant.
    Decided February 20, 2007

      APPEARANCES OF COUNSEL

      Fiedelman & McGaw, Jericho (James K. O’Sullivan of counsel), for third-party defendant-appellant.

      Marshall E. Bloomfield, Bronx (Michael B Bloomfield of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, plaintiffs motion for partial summary judgment against Providence Rest Nursing Home denied, and the certified question answered in the negative.

Under plaintiffs theory of liability, third-party defendant Akosah was the only witness to the alleged negligent acts involving decedent. Nonetheless, Akosah has yet to be deposed or to otherwise participate in discovery. CPLR 1008 grants a third-party defendant all “the rights of a party adverse to the other parties in the action, including the right to counter-claim, cross-claim and appeal.” In this appeal by third-party defendant Akosah, questions of fact relating to how decedent was injured, whether Akosah was involved, and whether the nursing home was otherwise negligent precluded a grant of partial summary judgment.

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

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


author: Ciparick, J.

text:
    [864 NE2d 596, 832 NYS2d 466]
    The People of the State of New York, Respondent, v Joseph Grajales, Appellant.
    Argued January 9, 2007;
    decided February 20, 2007
    APPEARANCES OF COUNSEL

      Lisa Napoli, New York City, and Lynn W.L. Fahey for appellant.

      Charles J. Hynes, District Attorney, Brooklyn (Keith Dolan and Leonard Joblove of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

On February 4, 2003, two men, one of whom displayed a handgun, accosted the victim inside a Brooklyn coffee shop, yanked a gold chain off his neck, rifled his pockets for money and fled with their loot. Later that day at the precinct station house, the police showed the victim two photographic arrays, one of which was a six-photograph array containing a picture taken of defendant after an arrest the previous month. The victim identified defendant as the robber with the gun. One week later, on February 11, 2003, the victim saw defendant on the street and called the police. When the police arrived, the victim pointed out defendant as one of the men who had robbed him. Defendant was immediately arrested, and charged with robbery in the first and second degrees and two weapons possession counts.

After defendant’s arraignment on the indictment on March 26, 2003, the People served timely notice under CPL 710.30 (1) (b) of the February 11, 2003 on-the-street point-out. The notice did not mention the February 4, 2003 photographic identification. Defense counsel subsequently learned about it, however, sometime during pretrial discovery. On October 16, 2003, defendant moved to preclude the victim’s in- and out-of-court identifications of him on the ground that the People did not provide adequate and timely CPL 710.30 (1) (b) notice because of the omission of the photographic identification. Supreme Court denied the motion.

Following a jury trial, defendant was convicted on March 2, 2004 of robbery in the first degree; he was sentenced on May 27, 2004 to 15 years' in prison plus five years of postrelease supervision. The Appellate Division affirmed the judgment of conviction, concluding that “[u]nder the circumstances of this case, the prosecution discharged its statutory obligation to provide notice of intent to offer identification testimony at trial” (28 AD3d 677 [2d Dept 2006]).

We agree. The People acknowledge that the customary and better practice is to give defendant notice of all prior police-arranged identifications made by a witness from whom they intend to elicit in-court identification testimony. CPL 710.30 (1) (b), however, only mandates preclusion in the absence of timely notice “specifying” the pretrial identification evidence “intended to be offered” at trial. Because evidence of a witness’s pretrial photographic identification of an accused is not admissible in the prosecution’s case-in-chief (see People v Cioffi, 1 NY2d 70 [1956]; People v Caserta, 19 NY2d 18 [1966]), the People could not intend to offer it at trial, and therefore the CPL 710.30 (1) (b) notice in this case was adequate.

While the dissent puts forward sound policy reasons to support notice of photographic arrays, we are unwilling to read the statute more expansively than the Legislature has chosen to write it, especially when the remedy is preclusion. Further, the Appellate Division’s decisions in this case and in People v Simmons (221 AD2d 484 [2d Dept 1995]) belie any notion that we are today upending the “common understanding” of the correct answer to a question that we have never before been asked (see dissenting op at 865).

Ciparick, J.

(dissenting). I respectfully dissent. The People’s failure to notify defendant pursuant to CPL 710.30 that the complainant identified him from a police-arranged photo array prior to the point-out identification should have resulted in the preclusion of complainant’s identification testimony. As a result, I would reverse defendant’s conviction and remit the case to Supreme Court for a new trial.

As relevant here, CPL 710.30 provides that “[w]henever the people intend to offer at trial . . . testimony regarding an observation of the defendant either at the time or place of the commission of the offense or upon some other occasion relevant to the case, to be given by a witness who has previously identified him as such, they must serve upon the defendant a notice of such intention, specifying the evidence intended to be offered” (CPL 710.30 [1] [b]). The statutory remedy for the People’s failure to provide such notice is that “no evidence of a kind specified in [710.30 (1)] may be received against [the defendant] upon trial unless he [or she] has, despite the lack of such notice, moved to suppress such evidence and such motion has been denied and the evidence thereby rendered admissible” (CPL 710.30 [3]). The remedy of preclusion applies regardless of whether the defendant is prejudiced by the lack of notice (see People v Lopez, 84 NY2d 425, 428 [1994]).

We have previously determined that the primary “concern motivating the statute was the possibility . . . that pretrial identification procedures could be so suggestive or misleading as to compromise a defendant’s constitutional right to due process of law. The danger sought to be avoided is, and always has been, the risk of convicting the innocent through tainted identification procedures” (People v Gee, 99 NY2d 158, 161-162 [2002]). Our cases have likewise recognized “the orderly, swift and efficient determination of pretrial motions” as an additional statutory objective (People v O’Doherty, 70 NY2d 479, 488 [1987]). “Permitting the People to rely on defendant’s eventual receipt of the information through discovery would undermine the statutory scheme and negate the legislative directive embodied in the amended statute” (Lopez, 84 NY2d at 429).

Significantly, in the past this Court has permitted only two exceptions to the notice and hearing requirements of CPL 710.30 (see People v Boyer, 6 NY3d 427, 431 [2006]). These situations arise either when the defendant is known to the person making the identification or when a trained officer makes a “confirmatory identification” as “ ‘the ordinary and proper completion of an integral police procedure’ ” (Boyer, 6 NY3d at 431-432, quoting People v Wharton, 74 NY2d 921, 922-923 [1989]). In these types of cases, the circumstances surrounding the identification establish a degree of reliability that, as a matter of law, demonstrates the identification is not suggestive.

The majority’s interpretation of 710.30 as merely requiring notice of identification evidence that the People intend to offer at trial is far too narrow. The Court has typically refrained from interpreting this statute in a manner “that places too much emphasis on [its] literal language when doing so would produce results plainly at odds with the policy of the legislation as a whole” (People v White, 73 NY2d 468, 474 n 1 [1989]; see also People v Dixon, 85 NY2d 218, 222 [1995] [“Our precedent does not support a restrictive definition of ‘police-arranged’ procedures”]).

The legislative intent underpinning the notice requirement is to ensure that a defendant has the opportunity to explore — in a timely and efficient fashion — whether the identification procedures comport with due process and whether suggestive procedures may have tainted other evidence. Further, notice of identification evidence is crucial since the defendant will often be unaware of police-arranged identification procedures. For this reason, the burden is placed squarely on the People to provide notice to the defendant, rather than on the defendant to attempt to ascertain what identification procedures may have taken place. Thus, the best way to effectuate the purpose of the statute is to provide the defendant with swift notice of police-arranged photographic identifications.

That a photo identification is not ultimately admissible at trial is not determinative. A police-arranged photo identification can be as suggestive as any other type of identification procedure that would require notice.

“In criminal investigations, the police employ a variety of identification procedures — including lineups, one-on-one showups, photo arrays, and . . . single-photo displays. While such techniques help assure that the right person has been or will be arrested, if tainted by suggestion they can lead to irreparable misidentification. ‘The influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor — perhaps it is responsible for more such errors than all other factors combined’ ” (People v Rodriguez, 79 NY2d 445, 448-449 [1992] [citation omitted]).

Thus, the Court has previously recognized the potentially devastating consequences suggestive identification procedures can have on criminal defendants. However, under the majority’s rule, the People no longer have to provide notice of a suggestive photo array that may ultimately taint a later identification, simply because the array would not be admissible at trial. That interpretation also leaves open the possibility that notice of other suggestive identification procedures will not be provided to the defendant so long as the People do not intend to introduce them at trial. Such a stunning result is clearly contrary to the spirit and purpose of CPL 710.30.

Moreover, the common understanding — until now — has been that the People are required to provide notice of these types of police-arranged procedures. Previous decisions of this Court reflect the view that police-arranged photographic identifications require notice under the statute (see e.g. Gee, 99 NY2d at 163; People v Moss, 80 NY2d 857, 858 [1992]; Rodriguez, 79 NY2d at 448-449; People v Laing, 79 NY2d 166, 169 [1992]; People v Gissendanner, 48 NY2d 543, 552 [1979]; compare People v Herner, 85 NY2d 877, 879 [1995] [finding notice was not required where prosecutor showed witness lineup photographs in preparation for trial “because there was no identification procedure under CPL 710.30”]). Commentators have expressed a similar interpretation of the notice requirement (Hibel, New York Identification Law § 1.02 [10], at 83 [2006 ed] [“the prevailing view is that a defendant is entitled to notice of a pretrial photographic identification”]; see also Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11 A, CPL 710.30, at 219).

In this case, the People should have notified the defendant of the police-arranged photo identification. Merely precluding evidence of the photo identification would indeed be a hollow remedy since, as the majority notes, such evidence is not admissible against the defendant at trial anyway. Moreover, the question of prejudice is “irrelevant” (see Lopez, 84 NY2d at 428). Since I view the photo identification procedure as evidence requiring notice under the statute, the appropriate remedy for the failure to provide such notice is preclusion of the claimant’s identification evidence under CPL 710.30 (3). Thus, defendant’s conviction should be reversed and a new trial ordered.

Judges Graffeo, Read, Smith and Pigott concur; Judge Ciparick dissents and votes to reverse in an opinion in which Chief Judge Kaye concurs; Judge Jones taking no part.

Order affirmed in a memorandum.


text:
    In the Matter of Kevin Patrick Brady, Appellant, v Jerome C. Gorski et al., Respondents.
    Submitted December 11, 2006;
    decided February 20, 2007
   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 to consolidate appeals dismissed as academic.

Chief Judge Kaye and Judge Pigott taking no part.


text:
    Stacie Calian, Appellant, v Eric Calian, Respondent.
    Submitted December 4, 2006;
    decided February 20, 2007
   Motion for leave to appeal dismissed as untimely. The prior motion for leave to appeal made to the Appellate Division was untimely (see Karger, Powers of the New York Court of Appeals § 12:3, at 436-437 [3d ed rev 2005]).


text:
    Catholic Charities of the Diocese of Albany et al., Appellants, v Gregory V. Serio, as Superintendent of Insurance, Respondent.
    Submitted December 4, 2006;
    decided February 20, 2007
   Motion for reargument denied [see 7 NY3d 510].


text:
    Philip Coffey et al., Appellants-Respondents, v Peggy Ellen Baker et al., Respondents, and Thomas J. Kelly et al., Respondents-Appellants, et al., Defendants.
    Submitted January 2, 2007;
    decided February 20, 2007
   Motion by plaintiffs for leave to appeal from so much of the Appellate Division order as dismissed the complaint against defendants Gill and Keystone Automotive Operations, Inc. denied. Cross motion by the Kelly defendants, insofar as it seeks leave to appeal from that part of the Appellate Division order that granted the motion for summary judgment dismissing the complaint and cross claims against defendants Gill and Keystone Automotive Operations, Inc. denied; cross motion for leave to appeal otherwise dismissed upon the ground that the remainder of the Appellate Division order does not finally determine the action with respect to the Kelly defendants within the meaning of the Constitution.


text:
    Madison Avenue Leasehold, LLC, Appellant, v Madison Bentley Associates LLC et al., Respondents.
    Submitted January 29, 2007;
    decided February 20, 2007
   Motion for reargument denied [see 8 NY3d 59].


text:
    In the Matter of Maureen McNamara (Admitted as Maureen Margaret McNamara), a Suspended Attorney, Appellant.
    Submitted December 26, 2006;
    decided February 20, 2007
   Motion for reconsideration of this Court’s November 21, 2006 dismissal order [see 7 NY3d 899] granted and, upon reconsideration, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for relief ancillary to the motion for leave and appeal denied.


text:
    Leonora Moran, Appellant, v Regency Savings Bank, F.S.B., et al., Defendants, and Rosenfeld, Bernstein & Tannenhauser, as Trustee, Respondent. Barry Siskin, Esq., Nonparty Appellant.
    Submitted January 2, 2007;
    decided February 20, 2007
   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:
    Muriel Siebert & Co., Inc., Appellant, v Intuit Inc., Respondent.
    Submitted February 13, 2007;
    decided February 20, 2007
   Motion by National Employment Lawyers Association/New York for leave to file a brief amicus curiae on the appeal herein granted. Two copies of the brief may be served and 24 copies filed within seven days.


text:
    Nyack Hospital, Appellant, et al., Plaintiff, v General Motors Acceptance Corporation et al., Respondents.
    Submitted February 13, 2007;
    decided February 20, 2007
   Motion by Government Employees Insurance Company et al. for leave to appear amici curiae on the appeal herein denied as untimely (see Rules of Prac of Ct of Appeals [22 NYCRR] § 500.23).


text:
    The People of the State of New York, Appellant, v Jeffrey Kozlow, Respondent.
    Submitted February 13, 2007;
    decided February 20, 2007
   Motion by New York State District Attorneys Association 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 may be served and 24 copies filed within seven days.


text:
    Richard A. Williamson, as Successor Liquidating Trustee on Behalf of Lipper Convertibles, L.P., Respondent, v PricewaterhouseCoopers LLP, Appellant.
    Submitted February 13, 2007;
    decided February 20, 2007
   Motion by American Institute of Certified Public Accountants et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief may be served and 24 copies filed within seven days.


author: Smith, J. Pigott, J.

text:
    [864 NE2d 607, 832 NYS2d 477]
    The People of the State of New York, Respondent, v Edward Jackson, Appellant.
    Argued January 10, 2007;
    decided February 22, 2007

      APPEARANCES OF COUNSEL

      Legal Aid Society, New York City (William Carney and Steven Banks of counsel), for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

In a rape prosecution, evidence of a prior uncharged sexual assault against another and defendant’s simultaneously uttered out-of-court statement were admitted under Molineux to demonstrate defendant’s motive and future intent to rape the victim in this case. The witness testified, “[the defendant] told me that [the victim] was lucky I was there, because if I wasn’t there, it would be her.”

Assuming that it was error to admit both the statement and the uncharged criminal conduct, the error was harmless. Defendant was acquitted of three forcible rapes and convicted of three statutory rapes. “ ‘[T]he testimony of a single witness [can be enough] to support a conviction’ ” (People v Schulz, 4 NY3d 521, 530 [2005], quoting People v Arroyo, 54 NY2d 567, 578 [1982]). Although corroboration is not necessary in support of a rape prosecution, the underage victim’s testimony was bolstered by her prompt outcry the morning after the first rape occurred. Defendant had a key to the victim’s home, giving him full access to the apartment at night, while the victim’s mother was at work. While there was no physical evidence of rape, the medical testimony indicated that the results of the physical examination were not inconsistent with a rape having occurred two weeks earlier. To the extent that there were some inconsistencies in the victim’s story regarding the dates the rapes took place, an expert in child psychology testified that it was normal for an adolescent rape victim to remember the rape itself, rather than peripheral details such as dates. Thus, there was no significant probability the jury would have acquitted defendant if not for the error.

The parties’ remaining contentions are without merit.

Smith, J.

(concurring). I agree with Judge Pigott that, if admission of the challenged evidence was error, the error was not harmless, and therefore, like him, I reach the merits of the case. Unlike Judge Pigott, I conclude that there was no error, though I admit the case is not an easy one.

Defendant was charged with the forcible and statutory rape of a 14-year-old girl. He had been staying as a guest in the apartment of the girl’s family. A young woman who also lived in the apartment, the baby-sitter for a younger child, was allowed to testify that, shortly before the event on which the prosecution was based, defendant had raped her, and had remarked while doing so “that [the 14-year-old] was lucky I was there, because if I wasn’t there, it would be her.” I think defendant’s statement, in itself, was clearly admissible against him. The uncharged rape, in itself, was inadmissible under People v Molineux (168 NY 264 [1901]), but I conclude that the trial court had discretion to admit evidence of the rape to give meaning to the statement.

The apparent meaning of the defendant’s statement is: “I would rape the 14-year-old if I couldn’t rape you.” I see no ground for doubt that such an expression of desire — even conditionally phrased — to commit the very crime for which he was on trial was admissible. Of course, there could be no hearsay objection to the admission of defendant’s own statement when offered by the People. The briefs here, and the opinions below, discuss the applicability of Mutual Life Ins. Co. v Hillmon (145 US 285 [1892]), but I find Hillmon, a hearsay case, to be totally irrelevant.

It seems equally clear that the baby-sitter’s testimony about the uncharged rape is the sort of evidence that Molineux would ordinarily bar. Evidence like this has a tendency “to demonstrate the defendant’s bad character and general criminal propensity” and “there is a very real danger that the trier of fact will overestimate its significance” (People v Hudy, 73 NY2d 40, 55 [1988]). I do not agree that the prejudice that inevitably flows from the admission of this sort of evidence was harmless in this case, which — as the majority’s own summary shows— otherwise rested largely on the victim’s uncorroborated word.

In short, the trial court faced a dilemma, which it summed up concisely:

“[The evidence of the act] is prejudicial; there is no question about that. But [the statement is] extremely and highly probative. And to [admit] the statement without allowing the context of the act would make the statement meaningless and unintelligible to a jury . . . .”

The court could have resolved the dilemma in defendant’s favor, by excluding both the statement and the uncharged crime, but it had excellent reasons not to do so. It would have been unfair to the People, and would have invited a miscarriage of justice, to conceal from the jury the highly relevant information that defendant had expressed a willingness to rape the girl he was accused of raping. The trial court decided instead to allow the baby-sitter to testify to both the statement and the act, taking precautions to minimize the prejudice to defendant. The court ordered that the testimony be kept as brief as possible, and gave a hmiting instruction forbidding the jury to infer “that the defendant possessed a propensity or disposition to commit the crimes charged in this indictment.”

This may not have been a perfect solution; with hindsight, a better approach might be imagined, that somehow conveyed the substance of defendant’s statement to the jurors without disclosing the act that accompanied it. But no one suggested such an approach at the time, and I would not hold that the trial judge erred by failing to come up with one on his own. I think he did reasonably well with a difficult problem, and did not err in the ruling he made.

Pigott, J.

(dissenting). I respectfully dissent and vote to reverse because, in my view, the trial court improperly admitted the testimony concerning the alleged uncharged sexual assault. Such error was not harmless and deprived defendant of a fair trial.

The trial court admitted testimony concerning defendant’s uncharged sexual assault of a witness “as background evidence to provide a context for the statement and to complete the narrative,” phrases we have used numerous times in the context of Molineux (see e.g. People v Till, 87 NY2d 835, 837 [1995]; People v Montanez, 41 NY2d 53, 58 [1976]; People v Gines, 36 NY2d 932, 932-933 [1975]). However, we have cautioned that the admission of such uncharged crime evidence “is a delicate business” fraught with “the danger that [the] uncharged crime testimony may improperly divert the jury from the case at hand or introduce more prejudice than evidentiary value” (People v Resek, 3 NY3d 385, 389 [2004]). In my view, that is exactly what happened here.

My objection lies not with the admission of the statement itself, but with the inclusion of testimony concerning the uncharged sexual assault in conjunction with that statement. Thus, to the extent defendant’s statement may have constituted an admission and was therefore properly admitted, the trial court could have fashioned a remedy that would have permitted the witness to testify to the alleged statement separately and apart from the alleged sexual assault.

I disagree with the majority that the admission of the uncharged sexual assault was harmless and therefore “there was no significant probability the jury would have acquitted defendant if not for the error” (majority op at 871). In cases involving sex offense crimes, we have repeatedly held that evidence of uncharged crimes “is ‘inadmissible if offered for no purpose other than to raise an inference that a defendant is of a criminal disposition and, therefore, likely to have committed the crime charged’ ” (People v Vargas, 88 NY2d 856, 858 [1996], quoting People v McKinney, 24 NY2d 180, 184 [1969]; see People v Hudy, 73 NY2d 40, 54 [1988]).

In my view, evidence of the alleged uncharged sexual assault was probative only of defendant’s propensity to commit rape. The trial court’s determination that its admission was necessary to provide background information or complete the narrative was “nothing more than a disguised ‘propensity’ argument” prohibited by Molineux that should have been excluded (Hudy, 73 NY2d at 56). As the majority notes “ ‘the testimony of a single witness [can be enough] to support a conviction’ ” (majority op at 870, quoting People v Schulz, 4 NY3d 521, 530). It was therefore not only unnecessary but prejudicial for the trial court to allow the People to introduce evidence concerning the alleged uncharged sexual assault since the testimony of the complainant alone was sufficient to submit the case to a jury. The admission of the alleged uncharged sexual assault operated solely “to lend credibility to [the] complainant by suggesting that, because defendant had engaged in sexual misconduct” with a witness, “he was likely to have committed the acts charged” (Vargas, 88 NY2d at 858, citing Hudy, 73 NY2d at 56). This critical error deprived defendant of a fair trial, and could hardly be considered “harmless beyond a reasonable doubt” (People v Simmons, 75 NY2d 738, 739 [1989]).

Chief Judge Kaye and Judges Ciparick, Graffeo and Read concur; Judge Smith concurs in result in an opinion; Judge Pigott dissents and votes to reverse in a separate opinion; Judge Jones taking no part.

Order affirmed in a memorandum.

       We note that defendant’s statement was sought to be admitted under Molineux to prove future intent. The accompanying rape simply provided a context for the statement and was used to complete the narrative. Defendant made no offer of another, neutral context for admission of the statement. Although both the concurring and dissenting opinions reason that defendant’s statement was an admission, as the People failed to offer the evidence under that theory, the merits are not before us for review (see People v Nieves, 67 NY2d 125, 131 [1986] [People could not rely upon a theory of a statement’s admission on appeal that the People did not advance at trial]).


text:
    [864 NE2d 615, 832 NYS2d 485]
    Claude Horsford et al., Respondents, v Yvonne Bacott, Appellant, and “John Doe” et al., Respondents.
    Decided February 22, 2007

      APPEARANCES OF COUNSEL

      Legal Aid Society, New York City {Alan Canner and Afua Atta-Mensah of counsel), for appellant.

      Gary J. Wachtel, New York City, for Claude Horsford and another, respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, and certified question answered in the affirmative. The Appellate Division correctly concluded that the factual determination on which the Civil Court judgment was based is supported by sufficient evidence.

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


text:
    Michael Diederich, Jr., et al., Appellants, v Rockland County Police Chiefs’ Association, Defendant, and Town of Orangetown et al., Respondents.
    Submitted February 13, 2007;
    decided February 22, 2007
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Bruce Friedman, Appellant, v Connecticut General Life Insurance Company, Respondent.
    Submitted November 27, 2006;
    decided February 22, 2007
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that denied class certification, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise granted.


text:
    Malankara Archdiocese of Syrian Orthodox Church in North America et al., Respondents, v Mathew Thomas et al., Appellants. Board of Directors of St. Mary’s Malankara Syrian Orthodox Church of Rockland et al., Nonparty Appellants.
    Submitted December 18, 2006;
    decided February 22, 2007
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed the denial of the motion to intervene, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Malankara Archdiocese of Syrian Orthodox Church in North America et al., Respondents, v Mathew Thomas et al., Appellants. Board of Directors of St. Mary’s Malankara Syrian Orthodox Church of Rockland et al., Nonparty Appellants.
    Submitted January 16, 2007;
    decided February 22, 2007
   Motion to dismiss appeal granted and appeal dismissed, with $400 costs and one $100 costs of motion, upon the ground that that part of the Appellate Division order that affirmed the denial of the motion to intervene does not finally determine the action within the meaning of the Constitution, and that as to the remainder of the Appellate Division order, no substantial constitutional question is directly involved.


text:
    The People of the State of New York ex rel. William Mitchell, Appellant, v William Lape, as Superintendent of Marcy Correctional Facility, et al., Respondents.
    Submitted December 11, 2006;
    decided February 22, 2007
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no appeal lies from the order of an individual Justice of the Appellate Division (see NY Const, art VI, §3 [b]; CPLR 5601). Motion for leave to appeal dismissed upon the ground that it does not lie from the order of an individual Justice of the Appellate Division (see NY Const, art VI, § 3 [b]; CPLR 5602).


text:
    In the Matter of Richard Pu, an Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted February 5, 2007;
    decided February 22, 2007
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    In the Matter of Wembly Management Co., Inc., Doing Business as Bldg. Management Co., Inc., et al., Appellants, v New York State Division of Housing and Community Renewal, Office of Rent Administration, Respondent.
    Submitted January 2, 2007;
    decided February 22, 2007
   Motion for reargument granted [see 7 NY3d 888] and, upon reargument, motion for leave to appeal denied.


text:
    [865 NE2d 1, 832 NYS2d 893]
    The People of the State of New York, Respondent, v Orlando Melendez, Appellant.
    Argued February 15, 2007;
    decided March 22, 2007

      APPEARANCES OF COUNSEL

      Edward J. Nowak, Public Defender, Rochester (Brian Shiffrin of counsel), for appellant.

      Michael C. Green, District Attorney, Rochester (Arthur G. Weinstein of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

During the testimony of a non-English-speaking witness, the trial court required defendant’s court-appointed interpreter to stand at the back of the courtroom and interpret for the entire court, rather than solely for defendant. The constitutional issues defendant raises — including the violation of his right to counsel, his right to be present and his right to participate in his own defense — were not presented to the trial court and are thus not preserved for our review. Defendant’s remaining contentions regarding alleged inaccurate translation of complainant’s testimony and faulty instructions to the grand jury are without merit.

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

Order affirmed in a memorandum.


text:
    [864 NE2d 1270, 832 NYS2d 871]
    Alan D. Oboler et al., Appellants, v City of New York, Respondent.
    Argued February 13, 2007;
    decided March 22, 2007
    APPEARANCES OF COUNSEL

      Reingold & Tucker, Brooklyn (.Abraham Reingold of counsel), for appellants.

      Michael A. Cardozo, Corporation Counsel, New York City (Susan Paulson and Francis F. Caputo of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff Alan Oboler claims that he injured his shoulder on May 7, 2000 when he stepped on a depressed manhole cover situated in the roadway of Madison Avenue in Manhattan between 92nd and 93rd Streets and his foot struck a “ridge of asphalt” encircling the cover, causing him to trip and fall. He and his wife sued defendant City of New York for damages from his personal injuries and loss of consortium respectively. The City had no prior written notice of the hazard allegedly presented by the depressed manhole cover, as required under the Pothole Law (Administrative Code of City of NY § 7-201 [c] [2]).

In an effort to bring themselves within an exception to the Pothole Law, plaintiffs sought to have an expert testify that there was a 1 to l1/2-inch height differential between the edge of the asphalt and the manhole cover; that the City created this condition when Madison Avenue was resurfaced; that city and state regulations require manhole covers to be flush with the surrounding surface; and that the City’s violation of these regulations and its failure to adhere to accepted engineering and construction practices caused plaintiff Alan Oboler’s injuries. There was no evidence as to when this section of Madison Avenue might have been resurfaced prior to the accident, or whether the City performed any such repaving work.

The City moved to dismiss on the ground that plaintiffs had not made out a prima facie case of negligence, or alternatively, to preclude the expert “by reason of the fact that his testimony cannot be based upon anything other than speculation and his opinion that only the City does resurfacing.” Supreme Court reserved decision on the City’s motion to dismiss, and granted the motion to preclude. Supreme Court subsequently dismissed the complaint at the close of plaintiffs’ case at trial, stating that the “record [was] devoid of any evidence indicating that the City repaired Madison Avenue.” The Appellate Division affirmed, with two Justices dissenting.

We have recognized only two exceptions to prior written notice laws — “where the locality created the defect or hazard through an affirmative act of negligence and where a ‘special use’ confers a special benefit upon the locality” (Amabile v City of Buffalo, 93 NY2d 471, 474 [1999] [citations omitted]). Further, “the affirmative negligence exception . . . [is] limited to work by the City that immediately results in the existence of a dangerous condition” (Bielecki v City of New York, 14 AD3d 301 [1st Dept 2005] [emphasis added]). Here, plaintiff presented no evidence of who last repaved this section of the roadway before the accident, when any such work may have been carried out, or the condition of the asphalt abutting the manhole cover immediately after any such resurfacing. Next, even assuming that the special use doctrine applies to a manhole situated in a city public street, plaintiffs presented no proof of any special benefit conferred on the City. Finally, we note that the expert’s opinion was not inadmissible merely because nearly four years elapsed between the accident and the expert’s inspection of the site. Because the expert could not supply any reliable evidence as to the elements of the exceptions to the prior written notice law, however, whether the trial court erred in precluding the expert’s testimony is a question that does not affect the outcome of this case.

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

Order affirmed, with costs, in a memorandum.


text:
    [865 NE2d 1, 832 NYS2d 893]
    The People of the State of New York, Respondent, v Magnus Dallas, Appellant.
    Argued February 8, 2007;
    decided March 22, 2007
    APPEARANCES OF COUNSEL

      Bryan Law Firm, Syracuse (Bruce R. Bryan and Paul A. Carey of counsel), for appellant.

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

Memorandum.

The order of the County Court should be affirmed.

Defendant challenges a search of his apartment conducted under the “emergency” doctrine. We stated the elements of that doctrine in People v Mitchell (39 NY2d 173, 177-178 [1976]) as follows:

“(1) The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property.
“(2) The search must not be primarily motivated by intent to arrest and seize evidence.
“(3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched.”

The applicability of the emergency doctrine “involves a mixed question of law and fact” (People v Molnar, 98 NY2d 328, 335 [2002]). The courts below found that the three elements required by Mitchell were present, and their determination is supported by the record. Thus, “any further review is beyond this Court’s jurisdiction” {id.). We have no occasion to consider whether our holding in Mitchell should be modified in light of the Supreme Court’s decision in Brigham City v Stuart (547 US —, 126 S Ct 1943 [2006]).

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

Order affirmed in a memorandum.


text:
    AmBase Corporation, Appellant, v Pryor Cashman Sherman & Flynn LLP et al., Respondents.
    Submitted January 16, 2007;
    decided March 22, 2007
   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:
    B & B Manhattan, LLC, Appellant, v Petezi Sack et al., Respondents.
    Submitted January 16, 2007;
    decided March 22, 2007
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain it (see NY Const, art VI, § 3 [b]; CPLR 5602 [a]).


text:
    Arturo P. Batac, Appellant, v Capital One Bank, Respondent. (And Five Other Actions.)
    Submitted January 8, 2007;
    decided March 22, 2007
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain this motion for leave to appeal from the order of the Appellate Division entered in these actions commenced in the Civil Court of the City of New York (see NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]).


text:
    Beal Savings Bank, Appellant, v Viola Sommer et al., Respondents.
    Submitted February 5, 2007;
    decided March 22, 2007
   Motion to dismiss appeal as moot denied.

Judges Read and Jones taking no part.


text:
    In the Matter of the Claim of Kim M. Cagle, as Voluntary Administrator of the Estate of John R. Cagle, Deceased, Appellant, v Judge Motor Corporation et al., Respondents. Workers’ Compensation Board, Respondent.
    Submitted February 5, 2007;
    decided March 22, 2007
   Motion for reargument of motion for leave to appeal denied [see 7 NY3d 922].


text:
    In the Matter of Carl A.G., Appellant, v Myriam L.G., Respondent. In the Matter of Myriam L.G., Respondent, v Carl A.G., Appellant.
    Submitted. January 22, 2007;
    decided March 22, 2007
   Motion, insofar as it seeks leave to appeal from the Appellate Division order that dismissed the appeal from Family Court’s order denying a motion to resettle, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of David Garcia, Appellant, v State of New York Grievance Committee for the Second and Eleventh Judicial Districts, Respondent.
    Submitted January 16, 2007;
    decided March 22, 2007
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Sherman Green, Appellant, v Kimber Manufacturing, Inc., Respondent. Workers’ Compensation Board, Respondent.
    Submitted January 29, 2007;
    decided March 22, 2007
   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:
    Nitza Keane, Appellant, v Frank M. Keane, Respondent.
    Submitted January 22, 2007;
    decided March 22, 2007
   Motion for reargument denied with $100 costs and necessary reproduction disbursements [see 8 NY3d 115].


text:
    John Martocci et al., Appellants, v Bowaskie Ice House, LLC, Defendant, and Daniel A. Boons, Respondent.
    Submitted January 29, 2007;
    decided March 22, 2007
   Motion for reargument of motion for leave to appeal denied [see 7 NY3d 916].

Judge Graffeo taking no part.


text:
    Mayor of the City of New York, Appellant, v Council of the City of New York, Respondent. Lillian Roberts, as Executive Director of District Council 37, AFSCME, AFL-CIO, et al., Intervenors-Respondents.
    Submitted March 12, 2007;
    decided March 22, 2007
   Motion by New York Conference of Mayors and Municipal Officials for leave to file a brief amicus curiae on the appeal herein granted. Two copies of the brief may be served and 24 copies filed within seven days.


text:
    North Shore Environmental Solutions, Inc., et al., Plaintiffs, and Jaro Zitnansky, Appellant, v Allen K. Glass et al., Respondents.
    Submitted January 16, 2007;
    decided March 22, 2007
   Motion for reargument of motion for leave to appeal denied [see 7 NY3d 717].


text:
    North Shore Environmental Solutions, Inc., et al., Plaintiffs, and Jaro Zitnansky, Appellant, v Allen K. Glass, et al., Respondents.
    Submitted February 5, 2007;
    decided March 22, 2007
   Motion for leave to appeal dismissed upon the ground that it does not lie (see CPLR 5602 [a]).


text:
    Nyack Hospital, Respondent, v Encompass Insurance Company, Appellant.
    Submitted February 5, 2007;
    decided March 22, 2007
   Motion to dismiss appeal granted and the appeal dismissed as moot with $400 costs and $100 costs of motion.


text:
    Anthony Passalacqua, Appellant, v State of New York, Respondent.
    Submitted January 22, 2007;
    decided March 22, 2007
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]). Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York, Respondent, v Augustine R. Rizzo, Appellant.
    Submitted March 19, 2007;
    decided March 22, 2007
   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.

Judge Pigott taking no part.


text:
    Margarita Rivera, Respondent, v Katte Anilesh, D.D.S., et al., Defendants, and Indu Anilesh, D.D.S., Appellant.
    Submitted March 12, 2007;
    decided March 22, 2007
   Motion by New York State Dental Association et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief may be served and 24 copies filed within seven days.


text:
    Pamela B. Rodman, Appellant, v Robert H. Friedman, Respondent.
    Submitted January 16, 2007;
    decided March 22, 2007
   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:
    Sonia Rosario et al., Respondents, et al., Plaintiffs, v Diagonal Realty, LLC, et al., Appellants, et al., Defendants.
    Submitted February 26, 2007;
    decided March 22, 2007
   Motion by Rent Stabilization Association of N.Y.C., 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 may be served and 24 copies filed within seven days.


text:
    Dean Ryder et al., Appellants, v City of New York, Respondent.
    Submitted January 29, 2007;
    decided March 22, 2007
   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 Martin White, Appellant, v James J. Walsh, as Superintendent of Sullivan Correctional Facility, Respondent.
    Submitted January 16, 2007;
    decided March 22, 2007
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]). Motion for poor person relief dismissed as academic.


text:
    In the Matter of the Claim of Michael P. Yastrzemski, Appellant. Commissioner of Labor, Respondent.
    Submitted January 16, 2007;
    decided March 22, 2007
   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:
    [865 NE2d 1239, 834 NYS2d 73]
    In the Matter of Jean Marshall.
    Decided March 27, 2007
   OPINION OF THE COURT

On the Court’s own motion, it is determined that Honorable Jean Marshall is suspended with pay, effective immediately, from her office of Justice of the Cuyler Town Court, Cortland County, pending disposition of her 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.


text:
    [865 NE2d 1239, 834 NYS2d 73]
    In the Matter of Anthony Rutkunas, Respondent-Appellant, v Joseph Stout et al., Appellants-Respondents.
    Decided March 27, 2007

      APPEARANCES OF COUNSEL

      Charlene M. Indelicato, County Attorney, White Plains (Linda M. Trentacoste of counsel), for appellants-respondents.

      James M. Rose, White Plains, for respondent-appellant.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be modified, with costs to appellants-respondents, by dismissing the petition in its entirety and, as so modified, affirmed.

Petitioner’s conduct jeopardized the health and safety of his coworkers and of the public patrons of the facility at which he worked. Accordingly, “ ‘we cannot conclude that the penalty of dismissal imposed . . . shocks the judicial conscience’ ” as a matter of law (Matter of Will v Frontier Cent. School Dist. Bd. of Educ., 97 NY2d 690, 691 [2002], quoting Matter of Kelly v Safir, 96 NY2d 32, 39-40 [2001]; see also Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 233 [1974]). The Appellate Division has no discretionary authority or interest of justice jurisdiction in this CPLR article 78 proceeding to review the penalty imposed by respondent Commissioner of the Westchester County Department of Parks, Recreation, and Conservation (see Matter of Kelly, 96 NY2d at 38). Moreover, petitioner failed to show that the Hearing Officer’s recommendation was the result of any bias (see Matter of Warder v Board of Regents of Univ. of State of N.Y., 53 NY2d 186, 197 [1981]).

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

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


text:
    [865 NE2d 1222, 834 NYS2d 56]
    The People of the State of New York, Appellant, v Davor Gomcin, Respondent.
    Argued February 15, 2007;
    decided March 27, 2007

      APPEARANCES OF COUNSEL

      Richard A. Brown, District Attorney, Kew Gardens {John M. Castellano, Gary Fidel and Sharon Y Brodt of counsel), for appellant.

      Green & Willstatter, White Plains {Theodore S. Green and Richard D. Willstatter of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

During the evening hours of January 31, 1997 and the early morning hours of February 1, 1997, the police were conducting an undercover “buy operation” at a social club in Queens, New York. At 8:00 p.m., a female undercover officer stationed inside the club radioed a detective who was a member of the undercover team. She told him that she had been approached by a tall white male with a pony tail — whom she dubbed “JD Tan” — who asked her “if she wanted to take a hit of cocaine.” Approximately six hours later, at about 1:45 a.m., the officer left the club, and the detective and back-up officers arrived at the scene. They directed the club’s patrons to leave, and stopped and searched every patron exiting the club, including defendant. The police recovered a packet of cocaine from defendant’s jacket pocket and a .38-caliber automatic gun from his boot. Defendant was later indicted on charges of criminal possession of a weapon in the third degree, and criminal possession of a controlled substance in the third degree.

The People’s only witness at the subsequent Mapp hearing was the detective, who recounted the female undercover officer’s radio message to him. The court credited his testimony, but concluded that this evidence was legally insufficient to establish probable cause to arrest. Reasoning that defendant’s inquiry as to whether the female undercover officer “wanted to take a hit of cocaine” was “an inquiry as to her desire and state of mind, and it’s not enough to give probable cause to believe that [defendant] possessed drugs,” Supreme Court granted defendant’s motion to suppress the drugs and gun. The Appellate Division affirmed, with two Justices dissenting. The Court observed that “[s]ince we do not know whether the undercover officer and the defendant engaged in additional conversation, we do not know the context in which the defendant purportedly asked her if she wanted a ‘hit’ of cocaine” (265 AD2d 493, 494-495 [2d Dept 1999]). The Appellate Division agreed with the motion court’s “reasonable inference” that “defendant’s statement to the undercover officer was merely an inquiry into her ‘wishes and desires.’ The defendant’s statement was made in a social club, where casual conversation is rampant. The defendant may have been attempting to strike up a conversation with a female” (id. at 495).

Whether there was probable cause for defendant’s arrest presents a mixed question of law and fact, and so we may not disturb the lower court’s determination unless it lacks a basis in the record. In this case, the motion court and the Appellate Division concluded that defendant’s bare inquiry, in the absence of any context, did not support the inference that he possessed cocaine. While the lower courts might have found that the police were reasonable in viewing defendant’s statement differently, as implying that he possessed cocaine and qualifying as an offer to sell a controlled substance, their determination that this was not the case was reasonable and therefore enjoys record support.

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

Order affirmed in a memorandum.


text:
    [865 NE2d 1240, 834 NYS2d 74]
    Jenna Lynn Pahlad, an Infant, by the Appointed Guardian of Her Properties, Daniel Berger, et al., Appellants, v Lois Brustman, M.D., et al., Respondents.
    Decided March 27, 2007

      APPEARANCES OF COUNSEL

      Benjamin Heinrich, P.C., Bronx (Benjamin Heinrich of counsel), for appellants.

      Aaronson Rappaport Feinstein & Deutsch, LLP, New York City (Steven C. Mandell of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed with costs. Plaintiffs had “timely awareness of the facts requiring [them] to make farther inquiry before the statute of limitations expired,” and an equitable estoppel defense to the statute of limitations is therefore “inappropriate as a matter of law” (see Putter v North Shore Univ. Hosp., 7 NY3d 548, 553-554 [2006]).

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

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


text:
    In the Matter of Anthony Castricone, Appellant, v Lucy Taylor Welch, or Director for Orleans County Probation Department, Respondent.
    Submitted January 22, 2007;
    decided March 27, 2007
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Anthony Castricone, Appellant, v Lucy Taylor Welch, or Director for Orleans County Probation Department, Respondent.
    Submitted February 20, 2007;
    decided March 27, 2007
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Citibank, N.A., Respondent, v Ruth Wapnick, Appellant, and Seth Wapnick et al., Defendants.
    Submitted February 26, 2007;
    decided March 27, 2007
   Motion for reargument of motion for leave to appeal denied [see 8 NY3d 801],


text:
    Robert Coull, Appellant, v Pamela Rottman, Respondent.
    Submitted March 12, 2007;
    decided March 27, 2007
   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 Sephora K. Davis, Appellant, v Joan S. Kohout, as Acting Livingston County Court Judge, et al., Respondents.
    Submitted February 5, 2007;
    decided March 27, 2007
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the issues presented have become moot. Motion for leave to appeal dismissed upon the ground that the issues presented have become moot.


text:
    Alice Laraine Dimery, Appellant, v Ulster Savings Bank, Respondent.
    Submitted February 5, 2007;
    decided March 27, 2007
   Motion for reconsideration of this Court’s December 21, 2006 dismissal order denied [see 7 NY3d 920]. Cross motion for the imposition of sanctions denied.


text:
    Ivan Dimich, Appellant, v Med-Pro, Inc., Defendant, and Albers Medical Distributors, Inc., et al., Respondents.
    Submitted January 8, 2007;
    decided March 27, 2007
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed the denial of appellant’s motion for class action certification, renewal and reargument, and leave to serve an amended complaint, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Emma L. and Another, Children Alleged to be Permanently Neglected. Rosalie L., Also Known as Rosalie C., Appellant; Family Support Systems Unlimited, Respondent.
    Submitted January 16, 2007;
    decided March 27, 2007
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that pertained to Emma L., dismissed upon the ground that the order does not finally determine the proceeding as to Emma L. within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Charles Fisher, on Behalf of Himself and as Representative of a Class of all Others Similarly Situated, Appellant, v Board of Education of Watertown City School District et al., Respondents.
    Submitted January 8, 2007;
    decided March 27, 2007
   Motion for leave to appeal dismissed upon the ground that the issues presented have become moot.

Judge Pigott taking no part.


text:
    In the Matter of Foreclosure of Tax Liens. City of Newburgh, Respondent; Adam Quinn, Appellant.
    Submitted February 13, 2007;
    decided March 27, 2007
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    Givi Kobiashvilli et al., Appellants, v Mitchell Hill et al., Respondents.
    Submitted January 29, 2007;
    decided March 27, 2007
   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.


text:
    In the Matter of Herbert McMillian, Appellant, v Mae Rizzo, Respondent.
    Submitted February 26, 2007;
    decided March 27, 2007
   Motion for reargument of motion for leave to appeal denied [see 7 NY3d 916].


text:
    George Mercier, Appellant, v Vincent Powell, Respondent.
    Submitted February 13, 2007;
    decided March 27, 2007
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    Vincent Murphy et al., Appellants, v Arthur Shaw, Respondent.
    Submitted January 8, 2007;
    decided March 27, 2007
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed Supreme Court’s denial of a motion to vacate, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of John Park, Respondent, v John A. Kapica et al., Appellants.
    Submitted March 20, 2006;
    decided March 27, 2007
   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.

Judge Jones taking no part.


text:
    The People of the State of New York, Respondent, v Enrique Hernandez, Appellant.
    Submitted February 20, 2007;
    decided March 27, 2007
   Motion to dismiss the appeal herein granted and appeal dismissed without prejudice to a motion to reinstate the appeal should defendant return to this Court’s jurisdiction (see People v Diaz, 7 NY3d 831 [2006]).


text:
    The People of the State of New York, Respondent, v Joel Mark, Appellant.
    Submitted February 13, 2007;

    decided March 27, 2007
   Motion to dismiss the appeal herein granted and appeal dismissed without prejudice to a motion to reinstate the appeal should defendant return to this Court’s jurisdiction (see People v Diaz, 7 NY3d 831 [2006]).


text:
    The People of the State of New York ex rel. Christopher Di Meo, Appellant, v Dale Artus, Respondent.
    Submitted March 12, 2007;
    decided March 27, 2007
   Motion for leave to appeal denied. Motion for a stay denied. Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York ex rel. Curtis Middlebrooks, Appellant, v James Conway, as Superintendent of Attica Correctional Facility, Respondent.
    Submitted January 8, 2007;
    decided March 27, 2007
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York ex rel. Walter J. Roache, Appellant, v S.A. Connell, Respondent.
    Submitted February 13, 2007;
    decided March 27, 2007
   Motion for reargument of motion for leave to appeal denied [see 8 NY3d 803].


text:
    Raymond Powers, Respondent, v Catherine Wilson, Appellant.
    Submitted January 29, 2007;
    decided March 27, 2007
   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:
    Pablo Rivas et al., Appellants, v AmeriMed USA, Inc., et al., Respondents.
    Submitted January 2, 2007;
    decided March 27, 2007
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed the dismissal of the complaint against defendants Posner, Waksal and Engelman, denied; motion for leave to appeal otherwise dismissed upon the ground that the remaining portion of the Appellate Division order does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Steve Stroman, Appellant, v Peter E. Corning, as a County Court Justice, Respondent.
    Submitted February 5, 2007;
    decided March 27, 2007
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for poor person relief dismissed as academic.

Judge Pigott taking no part.


text:
    In the Matter of the Estate of Margaret M. Tomeck, Deceased. Edward M. Tomeck, as Executor of Margaret M. Tomeck, Deceased, Respondent-Appellant; Robert Christopher, as Commissioner of Social Services of Saratoga County, Appellant-Respondent, et al., Respondent.
    Submitted February 13, 2007;
    decided March 27, 2007
   Motion to strike portions of appellant-respondent’s brief denied.


text:
    U.S. Bank National Association, Formerly Known as First Bank National Association, Respondent, v Ines Diana Monti, Appellant. Bruno Monti, Nonparty-Appellant.
    Submitted January 8, 2007;
    decided March 27, 2007
   Motion to dismiss the appeal granted and, appeal, insofar as taken by Ines Diana Monti purportedly on behalf of Bruno Monti, dismissed upon the ground that Ines Diana Monti is not Bruno Monti’s authorized legal representative; appeal by Ines Diana Monti, insofar as taken on her own behalf, dismissed upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    [865 NE2d 1223, 834 NYS2d 57]
    Margo Lennard, Appellant, v Mendik Realty Corp. et al., Respondents and Third-Party Plaintiffs. City of New York, Third-Party Defendant-Respondent.
    Decided March 29, 2007

      APPEARANCES OF COUNSEL

      Sullivan Papain Block McGrath & Cannavo P.C., New York City (Brian J. Shoot of counsel), for appellant.

      Law Offices of Charles J. Siegel, New York City (Jack L. Cohen of counsel), for respondents and third-party plaintiffs.

      Michael A. Cardozo, Corporation Counsel, New York City (Kristin M. Helmers of counsel), for third-party defendant-respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the case remitted to that Court for consideration of issues raised but not determined on the appeal to that Court.

Plaintiff contends that she was injured when she slipped and fell on loose floor tiles in a bathroom at her workplace. Defendants, owners and managers of the premises, failed to establish that they lacked constructive notice of the allegedly defective floor tiles as a matter of law (see Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; see also Chapman v Silber, 97 NY2d 9, 19 [2001]). Accordingly, summary judgment was not appropriate.

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:
    [865 NE2d 1247, 834 NYS2d 81]
    Ada Zona et al., Appellants, v JELD-WEN, Inc., et al., Respondents. (Action No. 1.) Ada Zona et al., Appellants, v JELD-WEN, Inc., et al., Respondents. (Action No. 2.)
    Decided March 29, 2007

      APPEARANCES OF COUNSEL

      Osborn, Reed & Burke, LLP, Rochester (Thomas J. Rzepka of counsel), for appellants.

      Hodgson Russ LLP, Albany (Noreen DeWire Grimmick of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (34 AD3d 1189 [2006]).

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


text:
    In the Matter of Susan Baba, Appellant, v Martin Evans et al., Respondents.
    Submitted February 13, 2007;
    decided March 29, 2007
   Motion for reconsideration of this Court’s January 16, 2007 dismissal order denied [see 8 NY3d 839].


text:
    Bank of New York, Petitioner, v Norilsk Nickel et al., Respondents, and Monter Joint Stock Company, Appellant.
    Submitted February 5, 2007;
    decided March 29, 2007
   Motion to vacate this Court’s July 6, 2006 dismissal order denied [see 7 NY3d 778].


text:
    Bank of New York, Petitioner, v Norilsk Nickel et al., Respondents, and Monter Joint Stock Company, Appellant.
    Submitted March 12, 2007;
    decided March 29, 2007
   Motion to seal denied.


text:
    Carol Carpenter-Siracusa, Respondent, v Jack Siracusa, Appellant.
    Submitted January 22, 2007;
    decided March 29, 2007
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    In the Matter of Consolidated Edison Company of New York, Inc., Respondent, v City of New York et al., Appellants.
    Submitted March 26, 2007;
    decided March 29, 2007
   Motion by New York State Board of Real Property Services 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 may be served and 24 copies filed within seven days.


text:
    In the Matter of the Claim of David P. Cruz, Appellant. Commissioner of Labor, Respondent.
    Submitted December 4, 2006;
    decided March 29, 2007
   Motion for reargument denied [see 7 NY3d 711].


text:
    In the Matter of Sinclair Haberman et al., Appellants, v Zoning Board of Appeals of City of Long Beach et al., Respondents.
    Submitted January 29, 2007;
    decided March 29, 2007
   Motion, insofar as it seeks leave to appeal as against the City of Long Beach, dismissed upon the ground that as to that party the order sought to be appealed from does not finally determine the action/proceeding within the meaning of the Constitution; motion for leave to appeal otherwise granted.


text:
    In the Matter of Sinclair Haberman et al., Appellants, v Zoning Board of Appeals of City of Long Beach et al., Respondents.
    Submitted February 20, 2007;
    decided March 29, 2007
   Motion by the New York State Builders Association, Inc. for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the proposed brief is accepted as filed.


text:
    Mayor of the City of New York, Appellant, v Council of the City of New York, Respondent. Lillian Roberts, as Executive Director of District Council 37, AFSCME, AFL-CIO, et al., Intervenors-Respondents.
    Submitted March 26, 2007;
    decided March 29, 2007
   Motion by New York State County Executives’ Association for leave to file a brief amicus curiae on the appeal herein granted. Two copies of the brief may be served and 24 copies filed within seven days.


text:
    Mayor of the City of New York, Appellant, v Council of the City of New York, Respondent. Lillian Roberts, as Executive Director of District Council 37, AFSCME, AFL-CIO, et al., Intervenors-Respondents.
    Submitted March 26, 2007;
    decided March 29, 2007
   Motion by County of Suffolk for leave to file a brief amicus curiae on the appeal herein granted. Two copies of the brief may be served and 24 copies filed within seven days.


text:
    Mayor of the City of New York, Appellant, v Council of the City of New York, Respondent. Lillian Roberts, as Executive Director of District Council 37, AFSCME, AFL-CIO, et al., Intervenors-Respondents.
    Submitted March 26, 2007;
    decided March 29, 2007
   Motion by Nassau County for leave to file a brief amicus curiae on the appeal herein granted. Three copies of the brief may be served and an original and 24 copies filed within seven days.


text:
    Mayor of the City of New York, Appellant, v Council of the City of New York, Respondent. Lillian Roberts, as Executive Director of District Council 37, AFSCME, AFL-CIO, et al., Intervenors-Respondents.
    Submitted March 26, 2007;
    decided March 29, 2007
   Motion by United Federation of Teachers et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief may be served and 24 copies filed within seven days.


text:
    Millenium Environmental, Inc., Appellant, v City of Long Beach of State of New York, Respondent.
    Submitted February 5, 2007;
    decided March 29, 2007
   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 and is not an order of the type provided for in CPLR 5602 (a) (2).


text:
    In the Matter of George O’Donnell, Appellant, v Michael Bloomberg, as Mayor of the City of New York, et al., Respondents.
    Submitted February 5, 2007;
    decided March 29, 2007
   Motion, insofar as it seeks leave to appeal from the order of the Appellate Division denying reargument or, in the alternative, leave to appeal to the Court of Appeals, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    The People of the State of New York, Respondent, v Tyrone Rolle, Appellant.
    Submitted March 26, 2007;
    decided March 29, 2007
   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:
    In the Matter of Steve Pirog et al., Appellants, v Susan Cockburn et al., Respondents.
    Submitted January 29, 2007;
    decided March 29, 2007
   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:
    Margarita Rivera, Respondent, v Katte Anilesh, D.D.S., et al., Defendants, and Indu Anilesh, D.D.S., Appellant.
    Submitted March 26, 2007;
    decided March 29, 2007
   Motion by City of New York et al. for leave to file a brief amici curiae on the appeal herein granted. Three copies of the brief may be served and an original and 24 copies filed within seven days.


text:
    Margarita Rivera, Respondent, v Katte Anilesh, D.D.S., et al., Defendants, and Indu Anilesh, D.D.S., Appellant.
    Submitted March 26, 2007;
    decided March 29, 2007
   Motion by New York State Trial Lawyers’ Association for leave to file a brief amicus curiae on the appeal herein granted. Three copies of the brief may be served and an original and 24 copies filed within seven days.


text:
    Sonia Rosario et al., Respondents, et al., Plaintiffs, v Diagonal Realty, LLC, et al., Appellants, et al., Defendants.
    Submitted March 26, 2007;
    decided March 29, 2007
   Motion by Pratt Center for Community Development for leave to file a brief amicus curiae on the appeal herein granted. Two copies of the brief may be served and 24 copies filed within seven days.


text:
    Sonia Rosario et al., Respondents, et al., Plaintiffs, v Diagonal Realty, LLC, et al., Appellants, et al., Defendants.
    Submitted March 26, 2007;
    decided March 29, 2007
   Motion by Andrew M. Cuomo, Attorney General of the State of New York, for leave to appear amicus curiae on behalf of New York State Division of Housing and Community Renewal and for an order pursuant to Executive Law § 71 permitting movant to file a brief and to participate in oral argument of the appeal, granted in each respect with the direction that three copies of the brief must be served and an original and 24 copies filed no later than April 30, 2007.


text:
    State of New York et al., Appellants, v Philip Morris Incorporated et al., Defendants. Commonwealth Brands, Inc., et al., Nonparty Respondents.
    Submitted March 26, 2007;
    decided March 29, 2007
   Motion by defendants Philip Morris USA Inc. et al. for leave to file a brief and to present oral argument on the appeal herein denied as unnecessary upon the ground that movants are party respondents on this appeal.


text:
    Richard A. Williamson, as Successor Liquidating Trustee on Behalf of Lipper Convertibles, L.P., and Lipper Fixed Income Fund, L.P., Respondent, v PricewaterhouseCoopers LLP, Appellant.
    Submitted March 26, 2007;
    decided March 29, 2007
   Motion by National Association of Shareholder and Consumer Attorneys for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Richard A. Williamson, as Successor Liquidating Trustee on Behalf of Lipper Convertibles, L.P., and Lipper Fixed Income Fund, L.P., Respondent, v PricewaterhouseCoopers LLP, Appellant.
    Submitted March 26, 2007;
    decided March 29, 2007
   Motion by Ross Fuerman for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.