text:
    [5 NE3d 584, 982 NYS2d 437]
    The People of the State of New York, Respondent, v Mikal Smith, Appellant.
    Argued January 7, 2014;
    decided February 13, 2014

      APPEARANCES OF COUNSEL

      Leonard J. Levenson, New York City, for appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City (Caitlin J. Halligan and Hilary Hassler of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

A larceny becomes robbery if property is forcibly stolen (see Penal Law § 160.00). As relevant in this case, “force” refers to the use or threatened use of immediate physical force upon another person during the course of committing a larceny for the purpose of preventing or overcoming resistance to the taking of the property (see Penal Law § 160.00 [1]). Second-degree robbery occurs when an individual forcibly steals property while being aided by another person who was actually present during the crime (see Penal Law § 160.10 [1]).

Defendant Mikal Smith and his brother impersonated plainclothes police officers as they approached the victim in the stairwell of his apartment building. Defendant ordered the victim to stop; announced that he was a police officer; displayed a fake badge hanging from his neck (similar to one worn by his brother); and asked the victim to produce identification. After the victim did so, defendant told him to place his hands on the wall. The victim complied with these demands and was frisked, during which time defendant removed items from the victim’s pockets. One of the assailants then declared “this is not the person we are looking for” so the victim was permitted to leave.

Upon realizing that the assailants had stolen $200 from him, the victim called 911 and ran after them. While following them down the street, the victim pointed out the assailants to responding police officers. Defendant took flight but was eventually apprehended. Along his attempted escape route the police found two imitation badges on neck lanyards, a starter pistol and a loaded handgun. Defendant was charged with robbery and criminal impersonation, among other offenses.

At trial, defendant moved to dismiss the count of second-degree robbery, claiming that, although the People had evidence sufficient to prove larceny by trick (see Penal Law § 155.05 [2] [a]), the evidence was insufficient to support the forcible theft element of robbery. Supreme Court rejected this contention and the jury convicted defendant of second-degree robbery. The Appellate Division affirmed (87 AD3d 920 [1st Dept 2011]) and a Judge of this Court granted defendant leave to appeal (19 NY3d 968 [2012]).

Viewing the facts in the light most favorable to the People (see e.g. People v Heidgen, 22 NY3d 259 [2013]), there was a valid line of reasoning and permissible inferences that allowed the jury to rationally conclude that defendant forcibly stole the victim’s property. Threats alone can satisfy the statutory definition of “force” (see Penal Law § 160.00; People v Woods, 41 NY2d 279, 282-283 [1977]). By impersonating police officers, defendant and his brother restrained the victim and conveyed the impression that disobeying their directives could result in imminent physical repercussions, which caused the victim to submit to their false assertion of legal authority. Aside from this threat, they also engaged in physical contact with the victim— they frisked him and removed items from his pockets—to accomplish the theft. The People therefore adequately established that defendant committed forcible robbery, not merely larceny by trick.

Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott and Rivera concur; Judge Abdus-Salaam taking no part.

Order affirmed, in a memorandum.


source: Caselaw Access Project

license: Public Domain

text:
    [5 NE3d 26, 982 NYS2d 55]
    The People of the State of New York, Respondent, v Dwight Moss, Appellant.
    Decided February 13, 2014

      APPEARANCES OF COUNSEL

      Timothy P. Donaher, Public Defender, Rochester (James Eckert of counsel), for appellant.

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

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the matter remitted to Supreme Court for further proceedings in accordance with this memorandum.

Both Supreme Court and the Appellate Division (107 AD3d 1574 [2013]) failed to articulate a proper legal basis for adjudicating the defendant a risk level three sex offender under the Sex Offender Registration Act (Correction Law § 168 et seq.). As conceded by the People, no basis in law exists for Supreme Court’s or the Appellate Division’s conclusion that an automatic override increased defendant’s presumptive risk level two designation to risk level three (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3-4 [2006]). Both of the courts below having erred in concluding defendant is a presumptive risk level three offender, we remit to Supreme Court for further proceedings.

Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam concur.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, without costs, and case remitted to Supreme Court, Monroe County, for further proceedings in accordance with the memorandum herein.


text:
    In the Matter of the Claim of Sofia Becker, Appellant. Commissioner of Labor, Respondent.
    Decided February 13, 2014
   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:
    Nata Bob, Appellant, v Steve Cohen et al., Respondents.
    Submitted December 30, 2013;
    decided February 13, 2014
   Motion for reargument of motion for leave to appeal denied [see 22 NY3d 855 (2013)].

Judge Abdtjs-Salaam taking no part.


text:
    Antonio Brown, Appellant, v State of New York, Respondent.
    Submitted December 16, 2013;
    decided February 13, 2014
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the action within the meaning of the Constitution.


text:
    Cooperstown Holstein Corporation, Appellant, v Town of Middlefield, Respondent.
    Submitted February 10, 2014;
    decided February 13, 2014
   Motion by New York Farm Bureau for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    In the Matter of Pablo Costello, Appellant, v New York State Board of Parole et al., Respondents.
    Submitted January 21, 2014;
    decided February 13, 2014
   Motion by Robert Dennison et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    In the Matter of Empire Center for New York State Policy, Appellant, v Teachers’ Retirement System of the City of New York, Respondent. In the Matter of Empire Center for New York State Policy, Appellant, v New York State Teachers’ Retirement System, Respondent.
    Submitted January 27, 2014;
    decided February 13, 2014
   Motion by the Albany Times Union et al. for leave to appear amici curiae on the appeals herein granted only to the extent that the proposed brief is accepted as filed.

Judge Abdus-Salaam taking no part.


text:
    In the Matter of Empire Center for New York State Policy, Appellant, v Teachers’ Retirement System of the City of New York, Respondent. In the Matter of Empire Center for New York State Policy, Appellant, v New York State Teachers’ Retirement System, Respondent.
    Submitted February 10, 2014;
    decided February 13, 2014
   Motion by New York State Public Employees Federation, AFL-CIO for leave to appear amicus curiae on the appeals herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.

Judge Abdus-Salaam taking no part.


text:
    In the Matter of Gregory Floyd, Respondent, v City of New York et al., Appellants. (And 10 Other Proceedings.)
    Submitted January 27, 2014;
    decided February 13, 2014
   Motion by Municipal Labor Committee for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    Michael Goldman, Appellant, v Richard R. Rio et al., Respondents.
    Submitted November 18, 2013;
    decided February 13, 2014
   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 Lisa A. Guild, Respondent, v Reggie A. Clifford, Appellant. (And Two Other Related Proceedings.)
    Submitted December 13, 2013;
    decided February 13, 2014
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceedings within the meaning of the Constitution.


text:
    In the Matter of Jaqwan H. Suffolk County Department of Social Services, Respondent; Shahida H., Appellant. (And Another Proceeding.)
    Submitted December 16, 2013;
    decided February 13, 2014
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceedings within the meaning of the Constitution.


text:
    Patrick Lynch, as President of the Patrolmen’s Benevolent Association of the City of New York, Inc., et al., Respondents, v City of New York et al., Appellants.
    Submitted February 3, 2014;
    decided February 13, 2014
   Motion by Sergeants Benevolent Association of the City of New York, Inc. for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    Patrick Lynch, as President of the Patrolmen’s Benevolent Association of the City of New York, Inc., et al., Respondents, v City of New York et al., Appellants.
    Submitted February 3, 2014;
    decided February 13, 2014
   Motion by Uniformed Firefighters Association of Greater New York, Local 94, IAFF, AFL-CIO for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    In the Matter of Nasir Levon L., an Infant. Ashley Bernadette B., Appellant; Jewish Child Care Association of New York, Respondent.
    Submitted December 16, 2013;
    decided February 13, 2014
   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:
    New York State Higher Education Services Corporation, Respondent, v Anthony Sears, Appellant.
    Decided February 13, 2014
   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; CPLR 5601).


text:
    Norex Petroleum Limited, Appellant, v Leonard Blavatnik et al., Respondents.
    Submitted January 21, 2014;
    decided February 13, 2014
   Motion by Jonathan R. Siegel for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    The People of the State of New York, Respondent, v Alexander Dockery, Also Known as John Harris, Appellant.
    Submitted January 27, 2014;
    decided February 13, 2014
   Motion by Youth Represent for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.

Judge Abdus-Salaam taking no part.


text:
    The People of the State of New York, Appellant, v Jermaine Dunbar, Respondent.
    Submitted February 10, 2014;
    decided February 13, 2014
   Motion by Legal Aid Society for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    The People of the State of New York, Respondent, v Benny Garay, Appellant.
    Submitted January 27, 2014;
    decided February 13, 2014
   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, Appellant, v Collin F. Lloyd-Douglas, Respondent. The People of the State of New York, Appellant, v Eugene Polhill, Respondent. The People of the State of New York, Appellant, v Jermaine Dunbar, Respondent.
    Submitted February 3, 2014;
    decided February 13, 2014
   Motion by New York Civil Liberties Union et al. for leave to appear amici curiae on the appeals herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    The People of the State of New York, Respondent, v Antonio Martinez, Appellant.
    Submitted February 10, 2014;
    decided February 13, 2014
   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:
    Nandkumar Ramkumar, Appellant, v Grand Style Transportation Enterprises Inc. et al., Respondents. Grand Style Transportation Enterprises Inc. et al., Third-Party Plaintiffs-Respondents, v Georgina D. Castillo, Third-Party Defendant-Respondent.
    Submitted December 12, 2013;
    decided February 13, 2014
   Motion for reargument denied with $100 costs and necessary reproduction disbursements [see 22 NY3d 905 (2013)].


text:
    Nandkumar Ramkumar, Appellant, v Grand Style Transportation Enterprises Inc. et al., Respondents. Grand Style Transportation Enterprises Inc. et al., Third-Party Plaintiffs-Respondents, v Georgina D. Castillo, Third-Party Defendant-Respondent.
    Submitted December 12, 2013;
    decided February 13, 2014
   Motion by the Defense Association of New York, Inc. for leave to appear amicus curiae on the motion for reargument herein granted and the affirmation is accepted as filed [see 22 NY3d 905 (2013)].


text:
    Nandkumar Ramkumar, Appellant, v Grand Style Transportation Enterprises Inc. et al., Respondents. Grand Style Transportation Enterprises Inc. et al., Third-Party Plaintiffs-Respondents, v Georgina D. Castillo, Third-Party Defendant-Respondent.
    Submitted December 16, 2013;
    decided February 13, 2014
   Motion by New York State Trial Lawyers Association for leave to appear amicus curiae on the motion for reargument herein granted and the affirmation is accepted as filed [see 22 NY3d 905 (2013)].


text:
    Roberto Ramos et al., Individually and on Behalf of All Other Persons Similarly Situated, Appellants, v SimplexGrinell LP et al., Respondents.
    Decided February 13, 2014

      See 740 F3d 852.
   Certification of questions by the United States Court of Appeals for the Second Circuit, pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), accepted and the issues presented are to be considered after briefing and argument.

Concur: Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott, Rivera and Abdus-Saxaam.


text:
    In the Matter of the Claim of Mark A. Sterne, Appellant. Commissioner of Labor, Respondent.
    Decided February 13, 2014
   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 Mark S. Wallach, as Chapter 7 Trustee for Norse Energy Corp. USA, Appellant, v Town of Dryden et al., Respondents.
    Submitted February 3, 2014;
    decided February 13, 2014
   Motion by Washington Legal Foundation for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    In the Matter of Mark S. Wallach, as Chapter 7 Trustee for Norse Energy Corp. USA, Appellant, v Town of Dryden et al., Respondents.
    Submitted February 10, 2014;
    decided February 13, 2014
   Motion by New York Farm Bureau for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    [5 NE3d 586, 982 NYS2d 439]
    In the Matter of McIver-Morgan, Inc., Respondent, v Christopher Dal Piaz et al., Appellants.
    Decided February 18, 2014

      APPEARANCES OF COUNSEL

      Massoud & Pashkoff, LLP, New York City (Ahmed A. Massoud of counsel), for appellants.

      Feldman & Associates, PLLC, New York City (Edward S. Feldman 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 the certified question not answered upon the ground that it is unnecessary. The Appellate Division correctly determined that vacatur of the arbitration award would require an impermissible fact-intensive review by the courts.

Concur: Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott and Abdus-Salaam. Taking no part: Judge Rivera.


author: Pigott, J.

text:
    [6 NE3d 583, 983 NYS2d 465]
    QBE Insurance Corporation, Respondent, v Jinx-Proof Inc., Doing Business as Beauty Bar, Appellant, et al., Defendants.
    Argued January 15, 2014;
    decided February 18, 2014

      APPEARANCES OF COUNSEL

      Devitt Spellman Barrett, LLP, Smithtown (John M. Denby of counsel), for appellant.

      Thomas M. Bona, PC., White Plains (Anthony M. Napoli and Thomas M. Bona of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff QBE Insurance Corp. (QBE) issued a liability policy to defendant Jinx-Proof Inc. (Jinx-Proof) that contained an assault and battery exclusion. In December 2007, a patron of a bar owned by Jinx-Proof commenced the underlying personal injury action to recover for injuries she allegedly sustained when one of Jinx-Proofs employees threw a glass at the customer’s face. On January 28, 2008, Jinx-Proof notified QBE of the underlying action, which alleged claims sounding in both negligence and intentional acts. QBE, through a third-party administrator, subsequently wrote two letters to Jinx-Proof— one on January 31, 2008, and the other on February 26, 2008— stating, among other things, that Jinx-Proof had no coverage for the assault and battery claims. Upon dismissal of the negligence and Dram Shop Act claims asserted in the underlying action, QBE commenced this declaratory judgment action and moved for summary judgment declaring that it was not obligated to defend or indemnify Jinx-Proof on the remaining claims. Jinx-Proof cross-moved for summary judgment dismissing the complaint as asserted against it. Supreme Court granted QBE’s motion and denied Jinx-Proofs cross motion. The Appellate Division modified the order only to the extent of declaring that QBE is not obligated to defend Jinx-Proof in the underlying action, and otherwise affirmed (102 AD3d 508 [2013]).

The courts below properly determined that QBE effectively disclaimed coverage for the assault and battery claims asserted in the underlying action. The first letter sent to Jinx-Proof stated that QBE would not defend or indemnify Jinx-Proof “under the General Liability portion of the policy for the assault and battery allegations” and that Jinx-Proof did not have liquor liability coverage. The second letter stated that Jinx-Proof did have liquor liability coverage but that the policy excludes coverage for assault and battery claims. Specifically, the second letter stated:

“[W]e are defending this matter under the Liquor Liability portion of the [commercial general liability] coverage, and under strict reservation of rights for allegations of Assault and Battery. Your policy excludes coverage for assault and battery claims . . . Therefore, should this matter proceed to verdict, any awards by the Court stemming from allegations of Assault and Battery will not be covered under your Commercial General Liability policy” (emphasis omitted).

Although the letters contained some contradictory and confusing language, the confusion was not relevant to the issue in this case. The letters specifically and consistently stated that Jinx-Proofs insurance policy excludes coverage for assault and battery claims. These statements were sufficient to apprise Jinx-Proof that QBE was disclaiming coverage on the ground of the exclusion for assault and battery, and this disclaimer was effective even though the letters also contained “reservation of rights” language (see e.g. Blue Ridge Ins. Co. v Jiminez, 7 AD3d 652, 653 [2d Dept 2004]).

Finally, Jinx-Proofs claim that the liquor liability portion of the policy may have included coverage for assault and battery was not raised below and refers to matter dehors the record and is therefore beyond our review. Neither party submitted the liquor liability portion of the policy to the motion court, and those provisions were not included in the record on appeal. Thus, not only is Jinx-Proofs claim that it may have had coverage for assault and battery unreviewable, it is based on pure speculation.

Pigott, J.

(dissenting). I would reverse and answer the certified question in the negative for two reasons.

First, the two letters from QBE’s third-party claims administrator do not communicate the requisite unequivocal written notice of disclaimer, and therefore do not constitute disclaimers of coverage. As the majority concedes, both letters contained “contradictory and confusing language” (majority mem at 1107). Language such as this simply cannot serve to properly advise an insured of his rights and remedies under the policy.

The January 31, 2008 letter expressly stated that QBE was making a “reservation of rights” with respect to the assault and battery exclusion; but the same letter asserted that QBE “will not be defending or indemnifying [Jinx-Proof] ... for the assault and battery allegations” (emphasis added). Moreover, the statement that QBE would not be defending Jinx-Proof with respect to the assault and battery allegations had no possible justification; QBE had no right to refuse to defend (as opposed to indemnify) Jinx-Proof for the assault and battery allegations (see Fieldston Prop. Owners Assn., Inc. v Hermitage Ins. Co., Inc., 16 NY3d 257, 264-265 [2011]).

The February 26, 2008 letter was even more confusing and ambiguous. That letter stated that QBE was defending the matter (thus contradicting the earlier letter), but “under strict reservation of rights for allegations of Assault and Battery.” It then went on to state that any awards “stemming from allegations of Assault and Battery will not be covered” (emphasis added).

These ambiguities must be construed in the insured’s favor, and therefore these letters cannot be treated as a disclaimer, which must be “unequivocal” and “unambiguous” (Norfolk & Dedham Mut. Fire Ins. Co. v Petrizzi, 121 AD2d 276, 277 [1st Dept 1986], lv denied 68 NY2d 611 [1986]; accord United States Fid. & Guar. Co. v Treadwell Corp., 58 F Supp 2d 77, 90 [SD NY 1999]; Tudor Ins. Co. v McKenna Assoc., 2005 WL 1138386, 2005 US Dist LEXIS 9046 [SD NY, May 12, 2005, No. 01 CIV 0115 CBM]). A letter that describes itself as a “reservation of rights letter” but contains expressly contradictory language suggesting disclaimer is not a valid disclaimer. In fact, the February 26, 2008 letter expressly describes the earlier letter as a reservation of rights letter.

It is well-established that “[a] reservation of rights letter has no relevance to the question whether the insurer has timely sent a notice of disclaimer of liability or denial of coverage” (Hartford Ins. Co. v County of Nassau, 46 NY2d 1028, 1029 [1979], rearg denied 47 NY2d 951 [1979]), meaning, quite simply, that “a reservation of rights does not qualify as a timely disclaimer” (Henner v Everdry Mktg. & Mgt., Inc., 74 AD3d 1776, 1778 [4th Dept 2010]); “a written reservation of an insurer is not a substitute for the required notice of disclaimer” (Allcity Ins. Co. v Pioneer Ins. Co., 194 AD2d 424, 424 [1st Dept 1993]). The reason for this is fundamental; a reservation of rights does just that, reserving arguments for another day, whereas a disclaimer is required to “apprise the claimant with a high degree of specificity of the ground or grounds on which the disclaimer is predicated” (General Acc. Ins. Group v Cirucci, 46 NY2d 862, 864 [1979]).

Consequently, the letters were not disclaimers, and since QBE does not allege any separate timely disclaimer with respect to assault and battery allegations, it did not fulfill the requirements of Insurance Law § 3420 (d) (2) (requiring that a liability insurer give the insured a written notice of a disclaimer of liability or denial of coverage “as soon as is reasonably possible”). “[A] timely disclaimer pursuant to Insurance Law § 3420 (d) is required when a claim falls within the coverage terms but is denied based on a policy exclusion” (Markevics v Liberty Mut. Ins. Co., 97 NY2d 646, 648-649 [2001]), as is the case here. For this reason alone, I would reverse.

But there is a second reason, just as fundamental. QBE was required to advise Jinx-Proof that, under the Goldfarb rule, it was entitled to defense by an attorney of its own choosing, whose fees were to be paid by QBE. Where, as here, a lawyer’s “duty to the insured would require that he defeat liability on any ground,” whereas his or her obligation to the insurer would require defeating liability only with respect to theories that “would render the insurer liable,” it is well established that “the insured must be free to choose his own counsel whose reasonable fee is to be paid by the insurer” (Public Serv. Mut. Ins. Co. v Goldfarb, 53 NY2d 392, 401 n [1981]; see Prashker v United States Guar. Co., 1 NY2d 584, 593 [1956]). This is simply black letter law (see e.g. New York Mar. & Gen. Ins. Co. v Lafarge N. Am., Inc., 599 F3d 102, 124-125 [2d Cir 2010]; New York State Urban Dev. Corp. v VSL Corp., 738 F2d 61, 65 [2d Cir 1984]; Executive Risk Indem. Inc. v Icon Tit. Agency, LLC, 739 F Supp 2d 446, 450-451 [SD NY 2010]; First Jeffersonian Assoc. v Insurance Co. of N. Am., 262 AD2d 133, 134 [1st Dept 1999]; 69th St. & 2nd Ave. Garage Assoc. v Ticor Tit. Guar. Co., 207 AD2d 225, 227 [1st Dept 1995]; Bryan v State-Wide Ins. Co., 144 AD2d 325, 327 [2d Dept 1988]).

Any other rule would cast any attorney in an ethically untenable role—defending a lawsuit in the name of an insured while attempting to defeat the very coverage upon which the insured is relying. Here, QBE cannot go forward in the lawsuit to defeat the very claims for which it would be required to indemnify the insured and then seek a declaration that it is no longer required to defend its insured because the only claims remaining are not covered under the policy.

Moreover, it is beyond debate that, in such situations, the insurer has an affirmative obligation to advise the insured of his right to independent counsel paid for by the insurer (see Elacqua v Physicians’ Reciprocal Insurers, 21 AD3d 702, 707 [3d Dept 2005]). Indeed, the Third Department has gone so far as to hold that an insurer commits a deceptive business practice, under General Business Law § 349, if it fails to advise its insured that it is entitled to retain independent counsel (Elacqua v Physicians’ Reciprocal Insurers, 52 AD3d 886, 888-889 [3d Dept 2008]).

Here, by failing to communicate to Jinx-Proof that it was entitled to an attorney of its own choosing paid for by the insurer, QBE breached its duty to its insured in such a way as to estop it from disclaiming. An insurer that arranges matters so that it exclusively controls its insured’s defense, preventing the insured from retaining its own counsel at the insurer’s expense, and possibly acting directly against the interests of the insured, cannot now assert that the policy does not cover the claim.

Judges Graffeo, Read, Smith, Rivera and Abdus-Salaam concur; Judge Pigott dissents and votes to reverse in an opinion in which Chief Judge Lippman concurs.

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


text:
    Bradford Applegate, Appellant, v State of New York, Respondent.
    Decided February 18, 2014
   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 Margaret L. Donovan, Appellant, v Warren P. Hauben, Chief Administrative Law Judge of the New York City Tax Appeals Tribunal, Respondent.
    Submitted January 6, 2014;
    decided February 18, 2014
   Motion for reargument of motion for leave to appeal denied with $100 costs and necessary reproduction disbursements [see 22 NY3d 855 (2013)].


text:
    Electrical Waste Recycling Group, Limited, Respondent, v Andela Tool & Machine, Inc., Formerly Known as Andela Products, Ltd., Appellant.
    Submitted December 23, 2013;
    decided February 18, 2014
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Patrick Guillory, Appellant, v Brian Fischer, as Commissioner of Corrections and Community Supervision, Respondent.
    Decided February 18, 2014
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    John Hemphill, Appellant, v State of New York, Respondent.
    Decided February 18, 2014
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Third Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, §§ 3 [b] [2]; 5 [b]; CPLR 5601 [b] [2]).


text:
    Anthony Jackson, Appellant, v State of New York, Respondent.
    Submitted December 30, 2013;
    decided February 18, 2014
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Nella Manko, Appellant, v Elton Strauss et al., Respondents, et al., Defendants.
    Submitted December 16, 2013;
    decided February 18, 2014
   Motion, insofar as it seeks leave to appeal from the August 2012 Appellate Division order, dismissed upon the ground that it does not lie, appellant having previously moved in the Court of Appeals for leave to appeal (21 NY3d 898 [2013]) from the same Appellate Division order (see Selinger v Selinger, 90 NY2d 842 [1997]); motion for leave to appeal otherwise dismissed upon the ground that the other 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:
    Dennis Obado, Appellant, v Manchanda Law Firm PLLC et al., Respondents.
    Submitted December 23, 2013;
    decided February 18, 2014
   Motion for leave to appeal from the order of the Appellate Division dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion for leave to appeal from the order of the Appellate Division entered in this action commenced in Civil Court (see NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]).


text:
    Alastair Onglingswan, Appellant, v Chase Home Finance, LLC, et al., Defendants, and Adam Plotch et al., Respondents.
    Submitted December 30, 2013;
    decided February 18, 2014
   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 Abdus-Salaam taking no part.


text:
    Christopher Selletti, Defendant, v Thomas F. Liotti, Appellant. Jeffrey Levitt, Nonparty Appellant.
    Submitted December 23, 2013;
    decided February 18, 2014
   Motion for reargument of motion for leave to appeal denied [see 22 NY3d 952 (2013)].


text:
    Tire Engineering and Distribution L.L.C. et al., Appellants, et al., Plaintiff, v Bank of China Limited, Respondent. Motorola Credit Corporation, Appellant-Respondent, et al., Plaintiffs-Counter-Defendants, v Standard Chartered Bank, Respondent-Appellant, et al., Defendants-Counter-Claimants, et al., Defendants.
    Decided February 18, 2014

      See 740 F3d 108.
   Certification of questions by the United States Court of Appeals for the Second Circuit, pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), accepted and the issues presented are to be considered after briefing and argument.

Concur: Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam.


text:
    [6 NE3d 1124, 983 NYS2d 768]
    The People of the State of New York, Appellant, v Paul Aveni, Respondent.
    Argued January 14, 2014;
    decided February 20, 2014

      APPEARANCES OF COUNSEL

      Janet DiFiore, District Attorney, White Plains (Raffaelina Gianfrancesco, Steven A. Bender and Richard Longworth Hecht of counsel), for appellant.

      John F. Ryan, Legal Aid Society of Westchester County, White Plains (David B. Weisfuse of counsel), for respondent.

      Kathleen M. Rice, Mineóla, Vincent Rivellese, New York City, and Hilary Hassler, for District Attorneys Association of the State of New York, amicus curiae.
   OPINION OF THE COURT

Memorandum.

The appeal should be dismissed upon the ground that the modification by the Appellate Division was not “on the law alone or upon the law and such facts which, but for the determination of law, would not have led to . . . modification” (CPL 450.90 [2] [a]).

On the night of January 12, 2009, police and emergency medical personnel arrived at the residence of defendant’s mother in response to her call. They found defendant’s girlfriend, Angela Camillo, dead of an apparent heroin overdose. While the police were still at the residence, but after Ms. Camillo’s body had been removed, defendant emerged from an attic space and was immediately arrested for violating a temporary order of protection forbidding him from visiting his mother’s home. He was taken to the police precinct, read Miranda warnings, and questioned about his possible illicit involvement in Ms. Camillo’s death. At first, he claimed that Ms. Camillo arrived at his mother’s already intoxicated and that when he subsequently came on the scene in response to a call from his brother reporting Ms. Camillo’s condition, he saw that Ms. Camillo was unconscious. He said that he did not stay to help her because of the order of protection, but before leaving told his mother to call 911. He recalled that when he returned to his mother’s home later the same night, he found it empty and fell asleep. When he woke and came downstairs he was arrested by an officer who had evidently arrived while he slept.

Defendant refused to sign a statement recounting this narrative, and some four hours later, after being re-read Miranda warnings, he was interviewed again. On this occasion, one of the interviewing detectives, although aware that Ms. Camillo was dead, told defendant that

“she was at the hospital and the doctors are working on her, but it’s imperative; did she use any drugs or did she take anything, because whatever medications the doctors give her now could have an adverse effect on her medical condition. You—she’s okay now but if you lie to me and don’t tell me the truth now and they give her medication, it could be a problem.”

Defendant immediately admitted that he had injected Ms. Camillo with heroin. A videotaped statement was then taken during which the interrogators reiterated the substance of their ruse—that Ms. Camillo was alive, but that disclosure from defendant was essential to her safe treatment—and defendant again admitted that he had purchased heroin and injected Ms. Camillo with it.

The trial court denied suppression of defendant’s incriminating statements, finding that the deception employed by defendant’s interrogators was not so egregious as to cast in question the voluntariness of the resulting confession because there was no accompanying promise or threat (People v Aveni, Sup Ct, Westchester County, May 7, 2010, Molea, J., indictment No. 978/ 2009, citing People v Pereira, 26 NY2d 265, 269 [1970], and People v McQueen, 18 NY2d 337, 346 [1966]). In reversing the denial of suppression, upon the law and the facts (100 AD3d 228 [2d Dept 2012]), the Appellate Division took a very different view of the deception, finding that it did not simply misrepresent the victim’s existential status but implicitly threatened that defendant could be held responsible for her demise if he did not immediately break his silence as to the nature and extent of Ms. Camillo’s drug ingestion. The threat, said the court, was perhaps subtle but nonetheless clear: “[defendant’s] silence would lead to Camillo’s death, and then he could be charged with her homicide” (100 AD3d at 238). The false prospect of being severely penalized for remaining silent, raised by defendant’s interrogators, was, in the court’s view, incompatible with a finding that defendant’s confession was voluntary beyond a reasonable doubt.

The People now contend that the Appellate Division’s finding with respect to the voluntariness of defendant’s confession was in error. A voluntariness determination by the Appellate Division on the facts, however, ordinarily implicates a mixture of factual and legal elements resistant to this Court’s review.

Here, the People argue that the Appellate Division applied the wrong legal standard when it focused upon the interrogating officer’s deception, instead of the entire set of circumstances attending defendant’s custodial interrogation and confession. They urge that, had the totality been considered, it would have dictated the conclusion that defendant was not threatened with a homicide prosecution and that his inculpating statements were voluntary. They stress that defendant was not new to the criminal justice system and was given Miranda warnings; that he had some higher education; and that he seemed relaxed with his interrogators, was given food, drink and cigarettes, and appeared alert and comprehending during the videotaped portion of the interrogation. They contend that, at the time defendant confessed to injecting Ms. Camillo with heroin, there could have been no threat of a homicide prosecution because the officers did not yet know what caused Ms. Camillo’s death.

It is true that the judicial inquiry as to whether a confession was voluntary in the due process sense is addressed to the totality of the circumstances under which the statement was obtained (see People v Guilford, 21 NY3d 205, 208 [2013]). However, the Appellate Division used the correct legal standard in its reversal (100 AD3d at 237). Its determination that the potential to overwhelm defendant’s free will was realized was plainly one of fact. Accordingly, the appeal must be dismissed.

Pigott, J.

(dissenting). I dissent because, in my view, although the Appellate Division paid lip service to the totality of circumstances standard (100 AD3d 228, 237 [2d Dept 2012]), it failed to apply that standard in this case. As a result, the Appellate Division, and now the majority, deviate from a standard that has existed and been relied upon by law enforcement for over 35 years (see People v Anderson, 42 NY2d 35, 38 [1977]; see also People v Guilford, 21 NY3d 205, 206 [2013]). According to the Appellate Division’s understanding of defendant’s argument, defendant claims he was deceived when the police officer:

“explicitly lied to him by telling him that [the victim] was alive and that the physicians treating her needed to know what drugs she had taken or else she could die, and implicitly threatened him with a homicide charge by stating, ‘if you lie to me and don’t tell me the truth now ... it could be a problem’ ” (100 AD3d at 237 [emphasis supplied]).

The record belies that “implicit” threat. In actuality, the police officer explained:

“What I said was, she is at the hospital and the doctors are working on her, but it’s imperative; did she use any drugs or did she take anything, because whatever medications the doctors give her now could have an adverse effect on her medical condition. You—she’s okay now but if you lie to me and don’t tell me the truth now and they give her medication, it could be a problem” (emphasis supplied).

The Appellate Division’s conclusion that the phrase “it could be a problem” constituted an “implied” threat to charge defendant with homicide is a reach; the officer was plainly referring to the victim’s potential reaction that the administered medication would have on any drugs the victim may have ingested. However, the Appellate Division went so far as to conclude that defendant’s failure to tell the police what drugs, if any, the victim had ingested “ ‘could be a problem’ for him” (100 AD3d at 238 [emphasis supplied]), but the record contains no such threat from the police. In cases like this, where there may be no witnesses other than the victim and the alleged perpetrator, the only proper way to evaluate police conduct is by reviewing the entire case, as opposed to cherry picking a phrase or two from a comprehensive interrogation. Accordingly, I would remand the matter to the Appellate Division for the appropriate application of the totality of the circumstances test.

Chief Judge Lippman and Judges Graffeo, Read, Smith, Rivera and Abdus-Salaam concur; Judge Pigott dissents and votes to reverse in an opinion.

Appeal dismissed upon the ground that the modification by the Appellate Division was not “on the law alone or upon the law and such facts which, but for the determination of law, would not have led to . . . modification” (CPL 450.90 [2] [a]), in a memorandum.

       The video recording device, we note, was not turned on until after defendant made his initial inculpating statement.

       It is evident from the opening paragraph of the Appellate Division order that it intended to focus solely on the deceptive techniques employed by the police as opposed to applying the totality of the circumstances test: “This case presents us with an opportunity to decide under what circumstances the police, while interrogating a suspect, exceed permissible deception, such that a suspect’s statements to the police must be suppressed because they were unconstitutionally coerced” (100 AD3d at 231).


text:
    [5 NE3d 999, 982 NYS2d 836]
    Nelson Lebron, Appellant, v SML Veteran Leather, LLC, Respondent.
    Decided February 20, 2014

      APPEARANCES OF COUNSEL

      Pollack, Pollack, Isaac & De Cicco, New York City (Brian J. Isaac of counsel), and Okun Oddo & Babat, PC. (Darren Seilback of counsel), for appellant.

      The Law Offices of Edward M. Eustace, White Plains (Christopher M. Yapchanyk of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Applying New Jersey law and viewing the evidence in a light most favorable to plaintiff (see Laidlow v Hariton Mach. Co., Inc., 170 NJ 602, 607, 790 A2d 884, 887 [2002]), defendant SML Veteran Leather, LLC demonstrated its entitlement to summary judgment dismissing the complaint against it. Plaintiff failed to raise a triable issue of fact whether defendant’s conduct constituted an intentional wrong under the New Jersey Workers’ Compensation Act (see NJ Stat Ann § 34:15-8; compare Mull v Zeta Consumer Prods., 176 NJ 385, 392, 823 A2d 782, 786 [2003]; Laidlow, 170 NJ at 622, 790 A2d at 897-898).

Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott and Rivera concur; Judge Abdus-Salaam taking no part.

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


text:
    [6 NE3d 600, 983 NYS2d 482]
    In the Matter of Ciro Dellaporte, Respondent, v New York City Department of Buildings et al., Appellants.
    Decided February 20, 2014

      APPEARANCES OF COUNSEL

      Michael A. Cardozo, Corporation Counsel, New York City (Karen M. Griffin of counsel), for appellants.

      The Rosenthal Law Firm, PC, New York City (Douglas Rosenthal 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 answered in the affirmative. The Appellate Division correctly determined that the denial of petitioner’s license renewal application lacked a rational basis.

Concur: Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam.


text:
    In the Matter of Miguel Berroa, Appellant, v Kathleen M. Rice, Respondent.
    Submitted January 13, 2014;
    decided February 20, 2014
   Motion for leave to appeal dismissed upon the ground that it does not lie (see CPLR 5602).


text:
    Clemente Bros. Contracting Corp. et al., Appellants, v Aprile Hafner-Milazzo, Defendant, and Capital One, N.A., Respondent.
    Submitted February 18, 2014;
    decided February 20, 2014
   Motion by The Clearing House Association L.L.C. for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    In the Matter of Luther Dempsey, Appellant, v New York City Department of Education et al., Respondents.
    Submitted February 18, 2014;
    decided February 20, 2014
   Motion by Community Service Society of New York et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    In the Matter of Empire Center for New York State Policy, Appellant, v Teachers’ Retirement System of the City of New York, Respondent. In the Matter of Empire Center for New York State Policy, Appellant, v New York State Teachers’ Retirement System, Respondent.
    Submitted February 18, 2014;
    decided February 20, 2014
   Motion by Citizens Budget Commission et al. for leave to appear amici curiae on the appeals herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.

Judge Abdus-Salaam taking no part.


text:
    Indymac Bank, F.S.B., Respondent, v Mohammad A. Khokhar, Defendant, and Barbara A. Baumgarten, Appellant.
    Submitted January 6, 2014;
    decided February 20, 2014
   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 Jalaya A.C., an Infant. New York Foundling Hospital, Respondent; Deidra J., Respondent; Jayquin Joseph C., Appellant. (And Other Proceedings.)
    Submitted January 13, 2014;
    decided February 20, 2014
   Motion for leave to appeal dismissed upon the ground that appellant Jayquin Joseph C., having taken no appeal to the Appellate Division, may not appeal to the Court of Appeals from the Appellate Division order of affirmance.


text:
    Hannah Lieberman, Appellant, v Adam Lieberman, Respondent.
    Submitted January 6, 2014;
    decided February 20, 2014
   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 John Marsala et al., Appellants, v City of Long Beach et al., Respondents.
    Decided February 20, 2014
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Manuel Mayo et al., Respondents, v Metropolitan Opera Association, Inc., et al., Appellants. Metropolitan Opera Association, Inc., Third-Party Plaintiff-Appellant, v Strauss Painting, Inc., et al., Third-Party Defendants-Respondents, and Creative Finishes Limited, Third-Party Defendant-Appellant.
    Submitted December 9, 2013;
    decided February 20, 2014
   Motions for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Rita Morgan, Respondent. Charles Rochester, Appellant; Veronica Pacheco et al., Respondents.
    Submitted January 13, 2014;
    decided February 20, 2014
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that it does not lie (see CPLR 5601). 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). Motion for poor person relief dismissed as academic.


text:
    In the Matter of Thomas C. O’Brien, Appellant, v New York State Commissioner of Education et al., Respondents.
    Decided February 20, 2014
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    The People of the State of New York, Respondent, v Ivan Calaff, Appellant.
    Submitted February 3, 2014;
    decided February 20, 2014
   Motion by respondent to enlarge the record on appeal to include certain off-the-record documents contained in the supplemental appendix for respondent or to take judicial notice of those documents denied. Cross motion by appellant to strike the off-the-record portions of the supplemental appendix for respondent and the related references in the respondent’s brief granted.


text:
    The People of the State of New York, Appellant, v John Gonzales, Respondent.
    Decided February 20, 2014
   Appeal dismissed, by the Court of Appeals, sua sponte, upon the ground that the reversal by the Appellate Division was not on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal (CPL 450.90 [2] [a]).


text:
    The People of the State of New York, Appellant, v Collin F. Lloyd-Douglas, Respondent. The People of the State of New York, Appellant, v Eugene Polhill, Respondent. The People of the State of New York, Appellant, v Jermaine Dunbar, Respondent.
    Submitted February 18, 2014;
    decided February 20, 2014
   Motion by Legal Ethics Bureau at New York University School of Law for leave to file a brief amicus curiae on the appeals herein granted and the proposed brief is accepted as filed.


text:
    The People of the State of New York, Appellant, v Robert Sepe, Respondent.
    Decided February 20, 2014
   Appeal dismissed, by the Court of Appeals, sua sponte, upon the ground that the modification by the Appellate Division was not on the law alone or upon the law and such facts which, but for the determination of law, would not have led to modification (CPL 450.90 [2] [a]).


text:
    In the Matter of Wilfredo Quintanilla, Respondent, v Sandra Morales, Appellant.
    Submitted December 16, 2013;
    decided February 20, 2014
   Motion by Sandra Morales for leave to appeal denied.


text:
    In the Matter of Wilfredo Quintanilla, Appellant, v Sandra Morales, Respondent.
    Submitted January 6, 2014;
    decided February 20, 2014
   Motion by Wilfredo Quintanilla for leave to appeal dismissed upon the ground that appellant, having taken no appeal to the Appellate Division, may not appeal to the Court of Appeals from the Appellate Division order of affirmance. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Robert T., Respondent, v Christine A. Sproat et al., Appellants, and D. Holley Carnright, Respondent. In the Matter of Allen B., Respondent, v Christine A. Sproat et al., Appellants, and Richard D. Northrup, Respondent.
    Submitted February 18, 2014;
    decided February 20, 2014
   Motion by District Attorneys Association of the State of New York for leave to appear amicus curiae on the appeals herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    Renee Sciara et al., Respondents, v Surgical Associates of Western New York, P.C., et al., Respondents. Usha Chopra, M.D., Nonparty Appellant.
    Submitted December 16, 2013;
    decided February 20, 2014
   Motion for an order precluding defendants Surgical Associates of Western New York, EC. and George Blessios, M.D. from submitting a brief on the appeal denied.


text:
    In the Matter of S.J., Appellant, v State of New York, Respondent.
    Submitted December 30, 2013;
    decided February 20, 2014
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Town of North Hempstead, Appellant-Respondent, v County of Nassau, Respondent-Appellant.
    Submitted February 18, 2014;
    decided February 20, 2014
   Motion by Town of Islip for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    In the Matter of Veronica P., Respondent, v Radcliff A., Appellant.
    Submitted February 10, 2014;
    decided February 20, 2014
   Motion for assignment of counsel granted and Eric Nelson, Esq., 54 Florence Street, Staten Island, New York 10308 assigned as counsel to the respondent on the appeal herein.


text:
    [8 NE3d 839, 985 NYS2d 463]
    Landauer Limited, Appellant, v Joe Monani Fish Co., Inc., Respondent.
    Argued January 16, 2014;
    decided February 25, 2014
    APPEARANCES OF COUNSEL

      Clyde & Co US LLP, New York City (Diane Westwood Wilson and Deborah A. Elsasser of counsel), for appellant.

      Fox Rothschild LLP, New York City (N. Ari Weisbrot and Oksana G. Wright of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and plaintiffs motion for summary judgment in lieu of complaint should be granted.

Plaintiff Landauer Limited (Landauer), a British company, entered into a series of contracts with defendant Joe Monani Fish Co., Inc. (Monani), a New York company, in which it agreed to supply wholesale seafood. The contracts included a clause granting the courts of England exclusive jurisdiction over disputes arising from the transactions. After a controversy arose over the quality of the products Landauer supplied, Monani refused payment, prompting Landauer to commence an action for breach of contract in the English High Court in April 2009. Monani did not appear in the action and a default judgment was entered.

Landauer subsequently attempted to enforce the English judgment in New York, moving for summary judgment in lieu of complaint. Landauer relied on an affidavit of service indicating that process in relation to the English action had been served on Monani pursuant to CPLR 311 (a) (1) by delivery of a copy of the papers to a Monani employee who identified himself as the comptroller of the company. Citing John Galliano, S.A. v Stallion, Inc. (15 NY3d 75 [2010]), Landauer further argued that any technical defect in service would not render the judgment unenforceable because New York courts require only that a judgment debtor receive “fair notice” of the action, which standard was met here because Monani had knowledge of the English action before the default judgment, yet allowed the case to proceed in its absence.

Monani opposed the motion for summary judgment, asserting that it had not been properly served because the person who purportedly accepted service was not the comptroller and was unauthorized to receive process on behalf of the corporation. In addition, Edward Monani, the president of the company, denied having had any knowledge that an English action had been initiated until after the default judgment was entered. Landauer responded by submitting copies of email communications indicating that Monani’s counsel had actual notice of the English action before entry of the default judgment and had advised Landauer’s counsel that Monani did not intend to appear or defend in England. Thereafter, Monani’s counsel submitted a letter to Supreme Court clarifying that he knew about the English action before the English court issued the judgment and indicating that Monani’s president did as well, effectively withdrawing the statement to the contrary in the affidavit.

After a traverse hearing, Supreme Court found that Landauer failed to serve Monani pursuant to CPLR 311 (a) (1) because the individual to whom the papers were delivered was a bookkeeper, not the comptroller, and was therefore not an appropriate corporate agent. Based on that determination alone, Supreme Court denied the motion for summary judgment and the Appellate Division affirmed (101 AD3d 653 [1st Dept 2012]), also addressing only the issue of improper service.

We now reverse. Although CPLR article 53 generally provides that a foreign judgment will not be enforced in New York if the foreign court did not have personal jurisdiction over the defendant (CPLR 5304 [a] [2]), an exception may be made if “prior to the commencement of the proceedings [defendant] had agreed to submit to the jurisdiction of the foreign court with respect to the subject matter involved” (CPLR 5305 [a] [3]) and was afforded fair notice of the foreign court proceeding that gave rise to the judgment. We applied this principle in Galliano, where we explained that enforcement of a foreign judgment is not repugnant to our notion of fairness if defendant was a party to a contract in which the parties agreed that disputes would be resolved in the courts of a foreign jurisdiction and defendant was aware of the ongoing litigation in that jurisdiction but neglected to appear and defend. We clarified that, so long as the exercise of jurisdiction by the foreign court does not offend due process, the judgment should be enforced without “microscopic analysis” of the underlying proceedings (Galliano, 15 NY3d at 81 [internal quotation marks and citation omitted]).

Here, in its motion for summary judgment, Landauer provided copies of the contracts it entered into with Monani, noting that each contract contained a provision giving the English courts jurisdiction over any disputes arising from the contract. In his affidavit in opposition to the motion, although claiming that he was “unaware” of the provision, Monani’s president did not deny having possessed the entire contract and, in fact, relied on an arbitration clause appearing on the same back page as the litigation venue provision in which the parties agreed to arbitrate disputes under the English Arbitration Acts. Moreover, it is apparent from the record that, through its counsel—who was engaged in ongoing negotiations with Landauer’s attorney in an effort to settle the dispute—Monani had ample notice of the English lawsuit before the default judgment was entered (counsel ultimately acknowledged that Monani’s president also knew about the litigation). Accordingly, based on our analysis in Galliano, Landauer established that the English judgment was enforceable in New York.

Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam concur.

Order reversed, with costs, and plaintiffs motion for summary judgment in lieu of complaint granted, in a memorandum.


text:
    Jennifer Cangro, Appellant, v Mary V. Rosado, Respondent.
    Decided February 25, 2014
   Appeal, insofar as taken from that portion of the Appellate Division order that dismissed appellant’s appeal from Supreme Court’s order denying reargument, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; appeal otherwise dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.

Judge Abdus-Salaam taking no part.


text:
    In the Matter of Christopher Cappon, Appellant, v Carlos Carballada, Commissioner, Neighborhood and Business Development of City of Rochester, as Successor to Julio Vasquez, Commissioner, Community Development of City of Rochester, Respondent.
    Submitted December 16, 2013;
    decided February 25, 2014
   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 with $100 costs and necessary reproduction disbursements.


text:
    In the Matter of Christopher Cappon, Appellant, v Carlos Carballada, Commissioner, Neighborhood and Business Development of City of Rochester, as Successor to Julio Vasquez, Commissioner, Community Development of City of Rochester, Respondent.
    Submitted February 10, 2014;
    decided February 25, 2014
   Motion by New York State Coalition of Property Owners & Businesses, Inc. for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    In the Matter of Dino Caroselli, Also Known as Wayne Horan, Appellant, v Alan Marrus, Respondent.
    Decided February 25, 2014
   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 Richard J. Condon, as Special Commissioner of Investigation for the New York City School District, Appellant, v Patricia Sabater, Respondent.
    Submitted January 27, 2014;
    decided February 25, 2014
   Motion by New York State United Teachers for leave to appear amicus curiae on the motion for leave to appeal herein granted and the affirmation is accepted as filed.


text:
    Iain Curtis-Shanley, Appellant, v Bank of America, Respondent.
    Submitted December 23, 2013;
    decided February 25, 2014
   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:
    Iain Curtis-Shanley, Appellant, v Bank of America, Respondent.
    Submitted February 10, 2014;
    decided February 25, 2014
   Motion by appellant to strike respondent’s affirmation in opposition to the motion for leave to appeal denied.


text:
    Iain Curtis-Shanley, Appellant, v Bank of America, Respondent.
    Submitted February 18, 2014;
    decided February 25, 2014
   Motion by J. Shanley for leave to appear amicus curiae on the motion for leave to appeal herein denied.


text:
    Shawn Green, Appellant, v State of New York, Respondent.
    Submitted February 3, 2014;
    decided February 25, 2014
   Motion for reargument of motion for leave to appeal denied [see 22 NY3d 979 (2013)].


text:
    In the Matter of John D. Justice, Appellant, v Andrea W. Evans, Chairwomen, New York State Division of Parole, Respondent.
    Submitted January 27, 2014;
    decided February 25, 2014
   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:
    Nella Manko, Appellant, v Lenox Hill Hospital, Respondent.
    Decided February 25, 2014
   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).


text:
    Nella Manko, Appellant, v Lenox Hill Hospital, Respondent.
    Submitted January 6, 2014;
    decided February 25, 2014
   Motion for reargument of motion for leave to appeal denied [see 22 NY3d 993 (2013)]. Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York, Respondent, v Patrick Barclay, Appellant.
    Submitted January 13, 2014;
    decided February 25, 2014
   Motion for reargument of motion for leave to appeal denied [see 22 NY3d 855 (2013)].


text:
    The People of the State of New York, Respondent, v Dennis Ford, Appellant.
    Submitted January 21, 2014;
    decided February 25, 2014
   Motion for leave to appeal granted. Motion for poor person relief granted.


text:
    The People of the State of New York, Respondent, v Anthony S. Pignataro, Appellant.
    Submitted January 27, 2014;
    decided February 25, 2014
   Motion for reargument denied [see 22 NY3d 381 (2013)].


text:
    The People of the State of New York ex rel. Michael Aziz Zarif Shabazz, Also Known as Michael Hurley, Appellant, v Jerome J. Richards, Acting Judge of Franklin County Court, et al., Respondents.
    Submitted January 13, 2014;
    decided February 25, 2014
   Motion for reconsideration of this Court’s November 21, 2013 dismissal order denied [see 22 NY3d 990 (2013)].


text:
    In the Matter of Working Families Party, Appellant, v Fern A. Fisher, Deputy Chief Administrative Judge for New York City Courts, et al., Respondents.
    Submitted January 13, 2014;
    decided February 25, 2014
   Motion to permit respondent Daniel M. Donovan, Jr. to file his brief under seal and to serve appellant with a version of said brief with redactions to eliminate references to material currently under seal by order of Supreme Court denied.

Chief Judge Lippman taking no part.


text:
    [7 NE3d 500, 984 NYS2d 287]
    The People of the State of New York, Respondent, v Harouna Kasse, Appellant.
    Decided March 27, 2014

      APPEARANCES OF COUNSEL

      Steven Banks, The Legal Aid Society, New York City (Michael J. McLaughlin of counsel), for appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City (Sheryl Feldman of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Term should be affirmed.

The misdemeanor complaint was jurisdictionally valid because it described facts of an evidentiary nature establishing reasonable cause to believe that defendant engaged in unlicensed general vending in violation of section 20-453 of the Administrative Code of the City of New York. The arresting police officer observed defendant at a specified time and public location standing behind a suitcase with more than 10 handbags, which he offered for sale to various individuals, and defendant failed to produce a vendor’s license at the officer’s request. Those allegations were sufficient for pleading purposes since they provided adequate notice to enable defendant to prepare a defense and invoke his protection against double jeopardy (see e.g. People v Dreyden, 15 NY3d 100, 103 [2010]; People v Allen, 92 NY2d 378, 385 [1998]).

Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott, Rtvera and Abdus-Salaam concur.

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


text:
    [9 NE3d 366, 986 NYS2d 16]
    The People of the State of New York, Respondent, v Vincent Zeh, Appellant.
    Argued February 11, 2014;
    decided March 27, 2014
    APPEARANCES OF COUNSEL

      Norman P. Effman, Warsaw, for appellant.

      Jacqueline L. Spratt, New York Prosecutors Training Institute, Inc., Albany, and William V. Grady, District Attorney, Poughkeepsie, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the case remitted to County Court for further proceedings in accordance with this memorandum.

Defendant Vincent Zeh was questioned by the police at his home and a State Police barracks after his wife was murdered. Search warrants were executed and various items were seized from defendant’s house and automobile. He was eventually charged with killing his wife.

Defendant was represented initially by a retained lawyer but was later assigned a public defender. Subsequently, defendant hired Michael Sussman to serve as his trial counsel. None of the attorneys sought to suppress defendant’s statements to the police or the evidence derived from the searches. Defendant was convicted of intentional murder in the second degree. Although the Appellate Division affirmed, it believed that collateral review under Criminal Procedure Law article 440 would be prudent because of questions raised regarding the adequacy of the defense (289 AD2d 692, 693 [3d Dept 2001]).

As a result of the court’s suggestion, defendant commenced this article 440 proceeding seeking an evidentiary hearing to prove that he had been deprived of meaningful legal assistance. The People obtained an affirmation from trial counsel Sussman, who explained that certain alleged deficiencies in his performance were actually part of his trial strategy. Sussman specifically indicated that he consulted with defendant and they jointly decided not to pursue a suppression motion.

County Court denied the 440 motion without an evidentiary hearing. The Appellate Division affirmed (101 AD3d 1353 [3d Dept 2012]). A Judge of this Court granted defendant leave to appeal (21 NY3d 948 [2013]) and we now reverse.

The courts below should have granted defendant an evidentiary hearing based on the facts set forth in the record on direct appeal—including those issues aptly identified in the Appellate Division’s first decision—and the CPL article 440 motion. In response to defendant’s post-conviction claims, Sussman asserted that he declined to request suppression of defendant’s statements to the police primarily because he thought defendant would have to testify at the pretrial hearing. Sussman’s affirmation did not, however, address why suppression could not have been sought on the basis of: the 26-hour interrogation at a State Police barracks, which occurred in a room that may have been locked at times; the possible use of handcuffs, shackles and a “jail suit” during such questioning; and a purported refusal by the police to contact the lawyer who was representing defendant in a pending criminal case because defendant’s request for legal assistance was deemed “too late.” Nor did Sussman provide an explanation for failing to challenge the various search warrants that were issued or the evidence that was obtained by the police. Sussman also did not attempt to justify several potential trial errors that were noted by the Appellate Division (including the possibility of inadequate discovery requests and the failure to object to prosecutorial conduct that County Court felt compelled to address sua sponte as “grossly improper”). In these particular circumstances, we conclude that there were sufficient questions of fact as to whether Sussman had an adequate explanation for his alleged deficiencies. Defendant is therefore entitled to an opportunity to establish that he was deprived of meaningful legal representation (see generally People v Brown, 17 NY3d 742, 744 [2011]; People v Baker, 14 NY3d 266, 270-271 [2010]; People v Turner, 5 NY3d 476, 480 [2005]).

Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam concur.

Order reversed and case remitted to County Court, Ulster County, for further proceedings in accordance with the memorandum herein.

       Had the motion papers merely consisted of conclusory allegations of ineffective legal assistance combined with a summary of the existing record and the Appellate Division’s original decision, defendant would not be entitled to a hearing because his claim would be premised entirely on the record on direct appeal, which the Appellate Division fully considered and found inadequate to grant relief (see CPL 440.10 [2] [a], [b]; see also CPL 440.30 [4] [d]; People v Satterfield, 66 NY2d 796, 799 [1985]).


text:
    [7 NE3d 500, 984 NYS2d 287]
    In the Matter of H. Kenneth Ranftle, Also Known as Howard Kenneth Rantfle, Jr., and Another, Deceased. Ronald J. Ranftle, Appellant; J. Craig Leiby, Respondent.
    Decided March 27, 2014

      APPEARANCES OF COUNSEL

      Law Offices of Nicholas A. Penkovsky, PC., Riverdale (Nicholas A. Penkovsky of counsel), for appellant.

      Lambda Legal Defense and Education Fund, New York City (Susan L. Sommer and Keith Hammeran of counsel), and Weiss, Buell & Bell (Erica Bell 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 upon the ground that it is unnecessary. The affirmed findings of fact regarding decedent’s change of domicile, made under the proper evidentiary standard, have support in the record and are beyond our further review.

Concur: Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott and Rivera. Taking no part: Judge AbdusSalaam.


text:
    Amalgamated Bank, Respondent, v Helmsley-Spear, Inc., Defendant, and Schneider & Schneider, Inc., et al., Appellants.
    Submitted December 16, 2013;
    decided March 27, 2014
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that denied 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 granted.


text:
    Daniel Capruso et al., Respondents, v Village of Kings Point et al., Appellants. State of New York, Respondent, v Village of Kings Point, Appellant.
    Submitted March 24, 2014;
    decided March 27, 2014
   Motion by Citizens Campaign for the Environment et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    Daniel Capruso et al., Respondents, v Village of Kings Point et al., Appellants. State of New York, Respondent, v Village of Kings Point, Appellant.
    Submitted March 24, 2014;
    decided March 27, 2014
   Motion by New York State Conference of Mayors and Municipal Officials for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    Cooperstown Holstein Corporation, Appellant, v Town of Middlefield, Respondent.
    Submitted March 17, 2014;
    decided March 27, 2014
   Motion by Independent Oil and Gas Association of New York, Inc. for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    In the Matter of David H., Appellant, v Khalima H., Respondent.
    Submitted January 13, 2014;
    decided March 27, 2014
   Motion for leave to appeal dismissed for failure to demonstrate timeliness as required by the Rules of the Court of Appeals (see 22 NYCRR 500.22 [b] [2]). Motion for poor person relief dismissed as academic.


text:
    KeySpan Gas East Corporation, Respondent, v Munich Re-insurance America, Inc., et al., Appellants.
    Submitted March 24, 2014;
    decided March 27, 2014
   Motion by the Environmental Energy Alliance of New York, LLC for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.

Judge Rivera taking no part.


text:
    Patrick Lynch, as President of the Patrolmen’s Benevolent Association of the City of New York, Inc., et al., Respondents, v City of New York et al., Appellants.
    Submitted January 21, 2014;
    decided March 27, 2014
   Motion to vacate this Court’s December 26, 2013 preclusion order granted.


text:
    Jannie Nesmith, as Parent and Natural Guardian of Jannie Patterson, an Infant, et al., Appellants, v Allstate Insurance Company, Respondent.
    Submitted March 24, 2014;
    decided March 27, 2014
   Motion by the New York Insurance Association, Inc. for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Huyen V. Nguyen, Petitioner, v Eric H. Holder, Jr., United States Attorney General, Respondent.
    Decided March 27, 2014

      See 743 F3d 311.
   Certification of a 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 Lippman and Judges Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam.


text:
    The People of the State of New York, Appellant, v Roman Baret, Respondent.
    Submitted March 24, 2014;
    decided March 27, 2014
   Motion by Lenni Benson et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.

Judge Abdus-Salaam taking no part.


text:
    The People of the State of New York, Appellant, v Roman Baret, Respondent.
    Submitted March 14, 2014;
    decided March 27, 2014
   Motion by New York State Defenders Association, Inc. et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.

Judge Abdus-Salaam taking no part.


text:
    The People of the State of New York, Respondent, v William Cullen, Appellant.
    Submitted February 24, 2014;
    decided March 27, 2014
   Motion for assignment of counsel granted and Philip Rothschild, Esq., Frank H. Hiscock Legal Aid Society, 351 South Warren Street, Syracuse, New York 13202 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Raphael Golb, Appellant.
    Submitted February 24, 2014;
    decided March 27, 2014
   Motion by National Association of Criminal Defense Lawyers et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    The People of the State of New York, Appellant, v David Rivera, Respondent.
    Submitted December 16, 2013;
    decided March 27, 2014
   Motion to strike appellant’s brief and portions of appellant’s appendix denied.


text:
    The People of the State of New York, Appellant, v Terrance Williams, Respondent.
    Submitted March 17, 2014;
    decided March 27, 2014
   Motion for assignment of counsel granted and Philip Rothschild, Esq., Frank H. Hiscock Legal Aid Society, 351 South Warren Street, Syracuse, New York 13202 assigned as counsel to the respondent on the appeal herein.


text:
    Quaker Hills, LLC, Respondent, v Pacific Indemnity Co., Appellant.
    Decided March 27, 2014

      See 728 F3d 171.
   Pursuant to the February 25, 2014 order of the United States Court of Appeals for the Second Circuit withdrawing its certification of questions accepted by the Court of Appeals on September 17, 2013 [see 21 NY3d 1070 (2013)], certified questions marked withdrawn.

Concur: Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam.


text:
    Tire Engineering and Distribution L.L.C., et al., Appellants, et al., Plaintiff, v Bank of China Limited, Respondent. Motorola Credit Corporation, Appellant-Respondent, et al., Plaintiffs-Counter-Defendants, v Standard Chartered Bank, Respondent-Appellant, et al., Defendants-Counter-Claimants, et al., Defendants.
    Decided March 27, 2014

      See 740 F3d 108.
   Pursuant to the February 24, 2014 order of the United States Court of Appeals for the Second Circuit withdrawing one of two questions accepted by the Court of Appeals on February 18, 2014 [see 22 NY3d 1113 (2014)], in particular the certified question related to Tire Eng’g & Distrib. L.L.C. v Bank of China Ltd., that certified question is marked withdrawn.

Concur: Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam.


text:
    In the Matter of Trenasia J., an Infant. Administration for Children’s Services, Respondent; Frank J., Appellant. (Proceeding No. 1.) In the Matter of Raymond J., an Infant. Administration for Children’s Services, Respondent; Frank J., Appellant. (Proceeding No. 2.) In the Matter of Tavia J., an Infant. Administration for Children’s Services, Respondent; Frank J., Appellant. (Proceeding No. 3.) In the Matter of Brije D., an Infant. Administration for Children’s Services, Respondent; Frank J., Appellant. (Proceeding No. 4.)
    Submitted March 24, 2014;
    decided March 27, 2014
   Motion for poor person relief granted.


text:
    In the Matter of Mark S. Wallach, as Chapter 7 Trustee for Norse Energy Corp. USA, Appellant, v Town of Dryden et al., Respondents.
    Submitted March 17, 2014;
    decided March 27, 2014
   Motion by Independent Oil and Gas Association of New York, Inc. for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    In the Matter of Working Families Party, Appellant, v Fern A. Fisher, Deputy Chief Administrative Judge for New York City Courts, et al., Respondents.
    Submitted March 3, 2014;
    decided March 27, 2014
   Motion by District Attorneys Association of the State of New York for leave to appear amicus curiae on the appéal herein granted only to the extent that the proposed brief is accepted as filed.

Chief Judge Lippman taking no part.


text:
    [7 NE3d 1124, 984 NYS2d 636]
    433 Sutton Corp., Appellant, v Robert Broder, Respondent.
    Decided April 1, 2014

      APPEARANCES OF COUNSEL

      Cantor, Epstein & Mazzola, LLP, New York City (Robert I. Cantor and Brett L. Carrick of counsel), for appellant.

      Rappoport Hertz Cher son & Rosenthal, PC., Forest Hills (<Jeffrey M. Steinitz 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 reversed, with costs, order of Supreme Court, New York County, reinstated, and certified question answered in the negative. The Appellate Division erred in determining that defendant was the prevailing party. Accordingly, defendant is not entitled to attorneys’ fees.

Concur: Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam.


text:
    [9 NE3d 902, 986 NYS2d 407]
    The People of the State of New York, Respondent, v Todd Johnson, Appellant.
    Argued February 13, 2014;
    decided April 1, 2014

      APPEARANCES OF COUNSEL

      Kramer Levin Naftalis & Frankel LLP, New York City (Stephen M. Sinaiko, Scott Ruskay-Kidd, Megan Ryan and Nicole Foley of counsel), and Steven Banks, The Legal Aid Society (Andrew C. Fine of counsel) for appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City (Vincent Rivellese and Frank Glaser of counsel), for respondent.

      Greenberg Traurig, LLP, New York City (William C. Silver-man of counsel), Richard D. Willstatter, White Plains, and Marc Fernich, New York City, for the National Association of Criminal Defense Lawyers and another, amici curiae.

      New York Civil Liberties Union Foundation, New York City (Daniel Mullkoff, Alexis Karteron, Corey Stoughton and Christopher Dunn of counsel), for New York Civil Liberties Union, amicus curiae.

      Sharon L. McCarthy, New York City (K. Babe Howell and Diane Ferrone of counsel), for New York City Bar Association, amicus curiae.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, defendant’s motion to suppress granted and the indictment dismissed.

Defendant was arrested for disorderly conduct, searched, and found to be in possession of cocaine. We conclude that he was entitled to suppression of the cocaine because the arrest that was the predicate for the search was made without probable cause.

The applicable statute is Penal Law § 240.20 (6), which says:

“A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof: . . .
“6. He congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse.”

We have made clear that evidence of actual or threatened public harm (“inconvenience, annoyance or alarm”) is a necessary element of a valid disorderly conduct charge (People v Baker, 20 NY3d 354 [2013]; People v Weaver, 16 NY3d 123 [2011]). Here, the evidence was insufficient to provide the arresting officer with probable cause to believe that defendant either intended to cause public inconvenience, annoyance or alarm or was reckless in creating a risk of those consequences.

According to the officer’s testimony at the suppression hearing, defendant stood with three other young men, reputed to be gang members, on a street corner, and the four refused to move when asked to do so by the police. The only evidence of any possible impact on the public resulting from their presence was the officer’s testimony that one of defendant’s companions “was partially blocking” the entrance to a store by standing in front of it. Defendant and the other two men were close to the door, but not in front of it. There is no evidence that anyone trying to enter or leave the store was actually obstructed. This was not sufficient to satisfy the public harm element of the statute.

It is understandable that police officers become concerned when people they believe to be gang members and their associates gather in public. It is not disorderly conduct, however, for a small group of people, even people of bad reputation, to stand peaceably on a street corner.

Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam concur.

Order reversed, defendant’s motion to suppress granted and the indictment dismissed, in a memorandum.


text:
    In the Matter of AGBH Bel Air Rental, LLC, Respondent, v Hilary Best, Appellant.
    Submitted January 27, 2014;
    decided April 1, 2014
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion for leave to appeal from the order of the Appellate Division entered in this proceeding commenced in Civil Court (see NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]). Motion for poor person relief dismissed as academic.


text:
    In the Matter of Darryl P., Appellant, v Brian Fischer, as Commissioner of Corrections and Community Supervision, Respondent.
    Submitted February 10, 2014;
    decided April 1, 2014
   Motion for reconsideration of this Court’s January 9, 2014 dismissal order denied [22 NY3d 1046 (2014)].


text:
    In the Matter of GM Components Holdings, LLC, Appellant, v Town of Lockport Industrial Development Agency, Respondent.
    Decided April 1, 2014
   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 Jack J. Grynberg et al., Respondents, v BP Exploration Operating Company Limited et al., Appellants.
    Submitted January 6, 2014;
    decided April 1, 2014
   Motions 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 Jack J. Grynberg et al., Respondents, v BP Exploration Operating Company Limited et al., Appellants.
    Submitted March 24, 2014;
    decided April 1, 2014
   Motions for a stay dismissed as academic.


text:
    In the Matter of Michael Hoffler, Appellant, v Robert M. Jacon et al., Respondents.
    Submitted February 10, 2014;
    decided April 1, 2014
   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:
    Nathan Juett, Appellant, v Stephen P. Lucente, Individually and Doing Business as Lifestyle Properties, et al., Respondents.
    Submitted February 3, 2014;
    decided April 1, 2014
   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 Kevin M. McGuire, Respondent, v Janet DiFiore, Appellant.
    Submitted January 21, 2014;
    decided April 1, 2014
   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:
    Daniel Miller, Appellant, v State of New York, Respondent.
    Submitted February 10, 2014;
    decided April 1, 2014
   Motion for leave to appeal dismissed upon the ground that the paper sought to be appealed from is not a judgment or an order from which an appeal to the Court of Appeals may be taken (see CPLR 5512 [a]).


text:
    Judy Mills, Respondent, v Richard Mills, Appellant.
    Submitted January 21, 2014;
    decided April 1, 2014
   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 Stephen Roberts, Appellant.
    Decided April 1, 2014
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no civil appeal lies from the order entered in this criminal action (see NY Const, art VI, § 3 [b]; CPLR 5601; CPL 450.90).


text:
    Heitor Portes, Respondent, v New York State Thruway Authority, Appellant. (And Another Related Claim.)
    Submitted January 27, 2014;
    decided April 1, 2014
   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:
    Anthony Rucano, Appellant, v Anna Lorusso-Moramarco, Respondent.
    Submitted February 10, 2014;
    decided April 1, 2014
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Ira Russack, Respondent, v Harvey Russack et al., Appellants, et al., Defendant.
    Submitted February 3, 2014;
    decided April 1, 2014
   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 State Farm Mutual Automobile Insurance Company, Appellant, v Patrick Fitzgerald, Respondent.
    Submitted February 24, 2014;
    decided April 1, 2014
   Motion for leave to appeal granted. Motion for a stay granted.

Judge Rivera taking no part.


text:
    In the Matter of the Claim of Volodymyr I. Tkachyshyn, Appellant. Commissioner of Labor, Respondent.
    Decided April 1, 2014
   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 Volodymyr I. Tkachyshyn, Appellant. Commissioner of Labor, Respondent.
    Decided April 1, 2014
   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 Misba Uddin, Appellant, v New York City Taxi and Limousine Commission, Respondent.
    Submitted February 3, 2014;
    decided April 1, 2014
   Motion for reargument of motion for leave to appeal denied [see 22 NY3d 856 (2013)].


text:
    [8 NE3d 847, 985 NYS2d 470]
    Preferred Mutual Insurance Company, Respondent, v John Donnelly et al., Defendants, and Robert Jackson, Appellant.
    Decided April 3, 2014

      APPEARANCES OF COUNSEL

      Athari & Associates, LLC, Utica (Mo Athari of counsel), for appellant.

      Schnitter Ciccarelli Mills PLLC, East Amherst (Joseph M. Schnitter of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The Appellate Division order should be affirmed with costs.

The Appellate Division correctly determined that the plaintiff insurer presented sufficient evidence of a regular office practice to ensure the proper mailing of notifications to insureds so as to raise the presumption that such a notification was mailed to and received by the insured. Specifically, the plaintiff insurer submitted an affidavit from an employee who had personal knowledge of the practices utilized by the insurer at the time of the alleged mailing to ensure the accuracy of addresses, as well as office procedures relating to the delivery of mail to the post office. Thus, the plaintiff insurer provided proper notice of the amendment to the policy upon renewal adding the relevant exclusion. Defendant’s remaining contentions are without merit.

Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam 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 Rafael Agosto, Appellant, v Molly Reynolds Fitzgerald, Respondent.
    Submitted February 24, 2014;
    decided April 3, 2014
   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:
    Susan Aranoff, Respondent, v Gerald Aranoff, Appellant.
    Submitted February 18, 2014;
    decided April 3, 2014
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as dismissed defendant’s appeals from Supreme Court’s June 2013 order and September 2013 judgment, dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain a motion from the Appellate Division order dismissing appeals to that Court from an order and judgment entered on default (see CPLR 5511); motion for leave to appeal otherwise dismissed upon the ground that the remaining portion of the order does not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    BDCM Opportunity Fund II, L.P., et al., Respondents, v Yucaipa American Alliance Fund I, L.P., et al., Appellants.
    Submitted January 27, 2014;
    decided April 3, 2014
   Motion, insofar as it seeks leave to appeal as against respondents BDCM Opportunity Fund II, L.E and Black Diamond CLO 2005-1 Ltd., dismissed upon the ground that as to those respondents the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Kerry Hatch, Respondent, v Edward Hatch, Appellant.
    Submitted January 27, 2014;
    decided April 3, 2014
   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:
    HSBC Bank USA, National Association, as Trustee for Ace Securities Corporation Home Equity Loan Trust, Series 2006-OP2 Asset Backed Pass-Through Certificates, Respondent, v Gregory Sage, Appellant, et al., Defendants.
    Submitted February 10, 2014;
    decided April 3, 2014
   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:
    Jean C. Jacobs, Appellant, v Stephen J. Mazzei Jr. et al., Respondents. (And a Third-Party Action.)
    Submitted February 10, 2014;
    decided April 3, 2014
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]; 2103 [b] [6]).


text:
    In the Matter of Karen Matseoane, Deceased. Karen Matseoane, Respondent, v Subtle Engineering Company, Appellant.
    Submitted February 3, 2014;
    decided April 3, 2014
   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:
    The People of the State of New York, Appellant, v Mark Garrett, Respondent.
    Submitted February 18, 2014;
    decided April 3, 2014
   Motion to strike portions of respondent’s brief denied.


text:
    In the Matter of Walter H. Taurins, Appellant, v Ellen S. Taurins, Respondent.
    Submitted February 18, 2014;
    decided April 3, 2014
   Motion for reargument of motion for leave to appeal denied [see 22 NY3d 858 (2013)].


text:
    In the Matter of Victor K. Thomas, Appellant, v Department of Corrections and Community Supervision et al., Respondents.
    Submitted February 24, 2014;
    decided April 3, 2014
   Motion for reconsideration of this Court’s January 9, 2014 dismissal order denied [see 22 NY3d 1050 (2014)].


text:
    In the Matter of Ben Gary Treistman, Appellant, v Suzanne Mary Cayley, Respondent. (And Another Related Proceeding.)
    Submitted February 10, 2014;
    decided April 3, 2014
   Motion for leave to appeal dismissed upon the ground that it does not lie (see CPLR 5602 [a]). Motion for poor person relief dismissed as academic.