text:
    People v Valdez
   2d Dept: 138 AD3d 1151 (Suffolk)

denied 8/2/16 (Abdus-Salaam, J.)


source: Caselaw Access Project

license: Public Domain

text:
    People v VanVleet
   4th Dept: 140 AD3d 1633 (Steuben)

denied 8/4/16 (Stein, J.)


text:
    People v Velez
   2d Dept: 138 AD3d 1041 (Kings)

denied 8/16/16 (Garcia, J.)


text:
    People v Volpe
   County Ct, 5/23/16 (Wyoming)

denied 8/25/16 (DiFiore, Ch. J.)


text:
    People v Walters
   4th Dept: 140 AD3d 1761 (Erie)

denied 8/29/16 (Pigott, J.)


text:
    People v Walton
   App Div, 1st Dept: 2014 NY Slip Op 79216(U) (NY)

dismissed 8/25/16 (DiFiore, Ch. J.)


text:
    People v Ward (Juliette)
   1st Dept: 136 AD3d 504 (Rockland)

denied 8/25/16 (Fahey, J.)


text:
    People v Ward (Sean)
   2d Dept: 140 AD3d 903 (Westchester)

denied 8/15/16 (Fahey, J.)


text:
    People v Warwick
   2d Dept: 139 AD3d 1093 (Westchester)

denied 8/24/16 (Abdus-Salaam, J.)


text:
    People v Washington
   3d Dept: 138 AD3d 1352 (Columbia)

denied 8/2/16 (Abdus-Salaam, J.)


text:
    People v Welcher
   4th Dept: 138 AD3d 1481 (Wayne)

denied 8/5/16 (Abdus-Salaam, J.)


text:
    People v Welden
   3d Dept: 140 AD3d 1406 (Saratoga)

denied 8/15/16 (Fahey, J.)


text:
    People v Wheelings
   2d Dept: 137 AD3d 1310 (Kings)

denied 8/31/16 (DiFiore, Ch. J.)


text:
    People v Wiggins
   1st Dept: 138 AD3d 634 (NY)

denied 8/2/16 (Abdus-Salaam, J.)


text:
    People v Wilkerson (Chanelle)
   App Term, 1st Dept: 51 Misc 3d 149(A) (Bronx)

denied 8/22/16 (Stein, J.)


text:
    People v Wilkerson (Mali)
   3d Dept: 140 AD3d 1297 (Schenectady)

denied 8/24/16 (Abdus-Salaam, J.)


text:
    People v Williams (Benjamin)
   App Div, 1st Dept: 2015 NY Slip Op 88133(U) (NY)

denied reconsideration 8/30/16 (Abdus-Salaam, J.)


text:
    People v Williams (Cortney)
   4th Dept: 140 AD3d 1750 (Monroe)

denied 8/17/16 (Rivera, J.)


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

dismissed 8/15/16 (Rivera, J.)


text:
    People v Williams (Donnell)
   4th Dept: 140 AD3d 1645 (Monroe)

denied 8/16/16 (DiFiore, Ch. J.)


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

dismissed 8/10/16 (Abdus-Salaam, J.)


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

dismissed 8/10/16 (Abdus-Salaam, J.)


text:
    People v Williams (Isiah)
   App Div, 4th Dept, 6/2/16 (Monroe)

dismissed 8/10/16 (Abdus-Salaam, J.)


text:
    People v Williams (Kenneth)
   3d Dept: 138 AD3d 1233 (Albany)

denied 8/24/16 (Pigott, J.)


text:
    People v Williams (Larry)
   App Div, 4th Dept, 4/26/16 (Onondaga)

dismissed 8/8/16 (Garcia, J.)


text:
    People v Wilson
   1st Dept: 138 AD3d 637 (Bronx)

denied 8/10/16 (Rivera, J.)


text:
    People v Witcher
   App Term, 2d Dept, 2d, 11th & 13th Jud Dists: 51 Misc 3d 142(A) (Queens)

denied 8/1/16 (Rivera, J.)


text:
    People v Woodard
   3d Dept: 139 AD3d 1238 (FranMin)

denied 8/16/16 (DiFiore, Ch. J.)


text:
    People v Woodworth
   App Div, 4th Dept, 6/20/16 (Livingston)

dismissed 8/31/16 (Rivera, J.)


text:
    People v Worthy
   2d Dept: 138 AD3d 1042 (Nassau)

denied 8/2/16 (Abdus-Salaam, J.)


text:
    People v Wright
   3d Dept: 139 AD3d 1094 (Albany)

denied 8/10/16 (Abdus-Salaam, J.)

      . Denied, with leave to renew within 30 days after the Court of Appeals renders a decision in People v Whitehead (130 AD3d 1142 [2015], lv granted 26 NY3d 1043 [2015]).


text:
    People v Xiangmei Zhang
   App Term, 1st Dept: 51 Mise 3d 141(A) (NY)

denied 8/16/16 (Garcia, J.)


text:
    (August 1, 2016 through
    August 31, 2016)
    People v Helms
   4th Dept: 141 AD3d 1138 (Monroe)

granted 8/10/16 (Curran, J.)


text:
    People v Johnson (Michael)
   2d Dept: 139 AD3d 967 (Queens)

granted 8/5/16 (Hall, J.)


text:
    People v Staton
   2d Dept: 138 AD3d 1149 (Queens)

granted 8/10/16 (Hall, J.)


text:
    [60 NE3d 403, 38 NYS3d 509]
    The People of the State of New York, Respondent, v Ricardo Ricketts, Appellant.
    Decided September 8, 2016
    APPEARANCES OF COUNSEL

      Lynn W.L. Fahey, Appellate Advocates, New York City (.Denise A. Corsi of counsel), for appellant.

      Kenneth P. Thompson, District Attorney, Brooklyn (Michael L. Brenner 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. Defendant’s sole argument, concerning whether the trial court followed the proper procedure for permitting witnesses to testify anonymously, is unpreserved for our review.

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


text:
    Sororazam Bethune, Appellant, v MTA Long Island Bus, Respondent, et al., Defendant.
    Submitted July 25, 2016;
    decided September 8, 2016
   On the Court’s own motion, appeal, insofar as taken from the March 2016 Supreme Court order and the April 2016 Supreme Court judgment, dismissed, without costs, as untimely (see CPLR 5513 [a]); appeal, insofar as taken from the June 2016 Appellate Division order, dismissed, without costs, upon the ground that such order does not finally determine the action within the meaning of the Constitution. Motion, insofar as it seeks leave to appeal from the March 2016 Supreme Court order and the April 2016 Supreme Court judgment, dismissed as untimely (see CPLR 5513 [b]); motion, insofar as it seeks leave to appeal from the June 2016 Appellate Division order, dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution.


text:
    Marie Castiglione et al., Respondents, v Robert Kruse et al., Appellants.
    Submitted June 20, 2016;
    decided September 8, 2016
   Motion for reargument denied with $100 costs and necessary reproduction disbursements [see 27 NY3d 1018 (2016)].


text:
    CF HY LLC, Respondent, v Hudson Yards LLC et al., Defendants, and Baruch Singer, Appellant.
    Submitted June 27, 2016;
    decided September 8, 2016
   Motion for leave to appeal dismissed upon the ground that no motion for leave to appeal lies pursuant to CPLR 5602 (a) (1) (ii) from the April 2016 order of Supreme Court because that order does not finally determine the action within the meaning of the Constitution.


text:
    Chamberlain, D'Amanda, Oppenheimer & Greenfield, LLP, Respondent, v Rebecca P. Wilson, Appellant.
    Submitted June 20, 2016;
    decided September 8, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Joel S. Charleston, Doing Business as The Law Office of Joel S. Charleston, Appellant. Commissioner of Labor, Respondent.
    Submitted June 27, 2016;
    decided September 8, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Estate of Helen Del Terzo et al., Respondents, v 33 Fifth Avenue Owners Corp., Appellant.
    Submitted August 29, 2016;
    decided September 8, 2016
   Motion by Council of New York Cooperatives and Condominiums for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Flo & Eddie, Inc., a California Corporation, Individually and on Behalf of All Others Similarly Situated, Respondent, v Sirius XM Radio, Inc., a Delaware Corporation, Appellant, and Does 1 Through 10, Defendants.
    Submitted August 29, 2016;
    decided September 8, 2016

      See 821 F3d 265.
   Motion by Electronic Frontier Foundation for leave to file a brief amicus curiae on consideration of the certified question 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 Sylvia Golub, Deceased. Norman Golub, Respondent; J. David Golub, Appellant. (Matter No. 1.) Norman Golub, Respondent, v Jerry David Golub, Appellant. (Matter No. 2.)
    Submitted June 20, 2016;
    decided September 8, 2016
   Reported below, 2016 NY Slip Op 67154(U).

Motion for reargument etc. denied [see 27 NY3d 1015 (2016)].

Chief Judge DiFiore and Judge Garcia taking no part.


text:
    Mary Jane Hayes, Respondent, v William Ames Hayes, Appellant.
    Submitted July 5, 2016;
    decided September 8, 2016
   Motion for reargument of motion etc. dismissed upon the ground that it does not lie (see Rules of Ct of Appeals [22 NYCRR] § 500.24 [e]) [see 27 NY3d 973 (2016)].

Chief Judge DiFiore and Judge Garcia taking no part.


text:
    John G. Ullman & Associates, Inc., Appellant, v BCK Partners, Inc., et al., Respondents.
    Submitted June 20, 2016;
    decided September 8, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Joan C. Lipin, Appellant, v David E. Hunt, Defendant, and Danske Bank et al., Respondents.
    Submitted July 18, 2016;
    decided September 8, 2016
   Motion for reargument denied [see 27 NY3d 1053 (2016)].


text:
    Millennium Holdings LLC, Plaintiff, The Northern Assurance Company of America, Appellant, and Certain Underwriters at Lloyd’s et al., Intervenors-Appellants, v The Glidden Company, Now Known as Akzo Nobel Paints LLC, et al., Respondents.
    Submitted June 20, 2016;
    decided September 8, 2016
   Motion for reargument denied with $100 costs and necessary reproduction disbursements [see 27 NY3d 406 (2016)].

Judge Garcia taking no part.


text:
    Anthony Oddo, Respondent, v Queens Village Committee for Mental Health for Jamaica Community Adolescent Program, Inc., Appellant.
    Submitted August 29, 2016;
    decided September 8, 2016
   Motion by Pacific Legal Foundation for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. An original and nine copies of the brief must be filed within seven days.


text:
    The People of the State of New York, Respondent, v James Brown, Appellant.
    Submitted September 6, 2016;
    decided September 8, 2016
   Motion by The Bronx Defenders for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and an original and nine copies filed within seven days.


text:
    The People of the State of New York, Appellant, v Terrance L. Mack, Respondent.
    Submitted July 25, 2016;
    decided September 8, 2016
   Motion for reargument denied [see 27 NY3d 534 (2016)].


text:
    Adam Plotch, Appellant, v Citibank, N.A., Respondent.
    Submitted June 20, 2016;
    decided September 8, 2016
   Motion for reargument denied with $100 costs and necessary reproduction disbursements [see 27 NY3d 477 (2016)].

Judge Garcia taking no part.


text:
    PS 157 Lofts, LLC, Respondent, v Kimberly Austin et al., Appellants.
    Submitted July 25, 2016;
    decided September 8, 2016
   Motion for reconsideration denied [see 27 NY3d 1054 (2016)].


text:
    In the Matter of Patrice Atwood et al., Respondents, v Markieth Pridgen et al., Respondents, and Maurice McCray et al., Appellants.
    Submitted September 9, 2016;
    decided September 9, 2016
   Motion for leave to appeal denied. The Court of Appeals restates the rule that denial of a motion for leave to appeal is not equivalent to an affirmance and has no precedential value (see Matter of Marchant v Mead-Morrison Mfg. Co., 252 NY 284, 297-298 [1929]).


text:
    Lane Altschuler, Respondent, v Jobman 478/480, LLC, Appellant.
    Submitted June 20, 2016;
    decided September 13, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Lane Altschuler, Respondent, v Jobman 478/480, LLC, Appellant.
    Submitted June 20, 2016;
    decided September 13, 2016
   Motion by Rent Stabilization Association of New York City, Inc., et al. for leave to appear amici curiae on the motion for leave to appeal herein granted and the proposed brief is accepted as filed.


text:
    In the Matter of the Claim of Linda Armbruster, Respondent. Summit Health, Inc., Appellant; Commissioner of Labor, Respondent.
    Submitted June 13, 2016;
    decided September 13, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Phillip Gootee, Respondent, v Global Credit Services, LLC, Appellant.
    Decided September 13, 2016
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Douglas E. Johnson, Appellant, v Anthony J. Annucci, as Acting Commissioner of Corrections and Community Supervision, Respondent.
    Decided September 13, 2016
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of the Claim of Karine Karapetyan, Respondent. CP Language Institute Inc., Appellant; Commissioner of Labor, Respondent.
    Submitted June 27, 2016;
    decided September 13, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Reginald G. McFadden, Appellant, v State of New York, Respondent.
    Decided September 13, 2016
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Marie Claude Morency, by Her Guardian ad Litem, Miriam Morency, et al., Respondents, v Horizon Transportation Services, Inc., et al., Defendants/Third-Party Plaintiffs-Appellants. Bhrags Home Care, Corp., et al., Third-Party Defendants-Respondents.
    Submitted July 25, 2016;
    decided September 13, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v Leroy Morrell, Appellant.
    Submitted July 11, 2016;
    decided September 13, 2016
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as dismissed defendant’s appeal from a Supreme Court decision, dismissed upon the ground that no motion for leave to appeal lies from an Appellate Division order dismissing an appeal from a decision (see CPLR 5602); motion for leave to appeal otherwise denied.


text:
    In the Matter of the Claim of Joseph A. Terranova, Jr., Appellant, v Lehr Construction Co. et al., Respondents. Workers’ Compensation Board, Respondent.
    Submitted July 11, 2016;
    decided September 13, 2016
   Motion by New York State Trial Lawyers Association for leave to appear amicus curiae on the motion for leave to appeal herein granted and the proposed brief is accepted as filed.


text:
    H. Patrick Barclay, Appellant, v Odell H. Etim et al., Respondents.
    Submitted July 18, 2016;
    decided September 15, 2016
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Fr. John W. Broderick, Appellant, v Hugh A. Gilbert, in His Official Capacity as Justice of Supreme Court, County of Onondaga, et al., Respondents.
    Submitted July 5, 2016;
    decided September 15, 2016
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    In the Matter of David E. Eagan, an Attorney and Counselor-at-Law, Appellant; Grievance Committee for the Tenth Judicial District, Respondent.
    Submitted August 29, 2016;
    decided September 15, 2016
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    In the Matter of Entergy Nuclear Operations, Inc., et al., Respondents, v New York State Department of State et al., Appellants.
    Submitted September 12, 2016;
    decided September 15, 2016
   Motion by Chamber of Commerce of the United States of America et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and an original and nine copies filed within seven days.


text:
    In the Matter of Entergy Nuclear Operations, Inc., et al., Respondents, v New York State Department of State et al., Appellants.
    Submitted September 12, 2016;
    decided September 15, 2016
   Motion by Emily Hammond for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and an original and nine copies filed within seven days.


text:
    In the Matter of Entergy Nuclear Operations, Inc., et al., Respondents, v New York State Department of State et al., Appellants.
    Submitted September 12, 2016;
    decided September 15, 2016
   Motion by Kevin S. Parker et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Flo & Eddie, Inc., a California Corporation, Individually and on Behalf of All Others Similarly Situated, Respondent, v Sirius XM Radio, Inc., a Delaware Corporation, Appellant, et al., Defendants.
    Submitted September 12, 2016;
    decided September 15, 2016

      See 821 F3d 265.
   Motion by Recording Industry Association of America, Inc. for leave to appear amicus curiae on consideration of the certified question herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.

Chief Judge DiFiore taking no part.


text:
    Flo & Eddie, Inc., a California Corporation, Individually and on Behalf of All Others Similarly Situated, Respondent, v Sirius XM Radio, Inc., a Delaware Corporation, Appellant, et al., Defendants.
    Submitted September 12, 2016;
    decided September 15, 2016

      See 821 F3d 265.
   Motion by National Association of Broadcasters for leave to file a brief amicus curiae on consideration of the certified question herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.

Chief Judge DiFiore taking no part.


text:
    Flo & Eddie, Inc., a California Corporation, Individually and on Behalf of All Others Similarly Situated, Respondent, v Sirius XM Radio, Inc., a Delaware Corporation, Appellant, et al., Defendants.
    Submitted September 12, 2016;
    decided September 15, 2016

      See 821 F3d 265.
   Motion by Association for Recorded Sound Collections for leave to file a brief amicus curiae on consideration of the certified question herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served within seven days.

Chief Judge DiFiore taking no part.


text:
    Flo & Eddie, Inc., a California Corporation, Individually and on Behalf of All Others Similarly Situated, Respondent, v Sirius XM Radio, Inc., a Delaware Corporation, Appellant, et al., Defendants.
    Submitted September 12, 2016;
    decided September 15, 2016

      See 821 F3d 265.
   Motion by Howard B. Abrams et al. for leave to file a brief amici curiae on consideration of the certified question herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.

Chief Judge DiFiore taking no part.


text:
    Flo & Eddie, Inc., a California Corporation, Individually and on Behalf of All Others Similarly Situated, Respondent, v Sirius XM Radio, Inc., a Delaware Corporation, Appellant, et al., Defendants.
    Submitted September 12, 2016;
    decided September 15, 2016

      See 821 F3d 265.
   Motion by New York State Broadcasters Association Inc. for leave to file a brief amicus curiae on consideration of the certified question herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.

Chief Judge DiFiore taking no part.


text:
    Flo & Eddie, Inc., a California Corporation, Individually and on Behalf of All Others Similarly Situated, Respondent, v Sirius XM Radio, Inc., a Delaware Corporation, Appellant, et al., Defendants.
    Submitted September 12, 2016;
    decided September 15, 2016

      See 821 F3d 265.
   Motion by CBS Radio Inc. for leave to file a brief amicus curiae on consideration of the certified question herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.

Chief Judge DiFiore taking no part.


text:
    Flo & Eddie, Inc., a California Corporation, Individually and on Behalf of All Others Similarly Situated, Respondent, v Sirius XM Radio, Inc., a Delaware Corporation, Appellant, et al., Defendants.
    Submitted September 12, 2016;
    decided September 15, 2016

      See 821 F3d 265.
   Motion by iHeartMedia, Inc. et al. for leave to file a brief amici curiae on consideration of the certified question herein granted and the proposed brief is accepted as filed.

Chief Judge DiFiore taking no part.


text:
    Flo & Eddie, Inc., a California Corporation, Individually and on Behalf of All Others Similarly Situated, Respondent, v Sirius XM Radio, Inc., a Delaware Corporation, Appellant, et al., Defendants.
    Submitted September 12, 2016;
    decided September 15, 2016

      See 821 F3d 265.
   Motion by Public Knowledge for leave to file a brief amicus curiae on consideration of the certified question herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.

Chief Judge DiFiore taking no part.


text:
    Alexander Gliklad, Respondent, v Michael Cherney, Appellant.
    Submitted June 27, 2016;
    decided September 15, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (see Burke v Crosson, 85 NY2d 10, 18 n 5 [1995]).


text:
    In the Matter of Ironelys A., Appellant, v Jose A., Respondent.
    Submitted June 27, 2016;
    decided September 15, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Ganiyu Adebola Odunbaku, Respondent, v Diana Odunbaku, Appellant. (Proceeding No. 1.) In the Matter of Diana Odunbaku, Appellant, v Ganiyu Adebola Odunbaku, Respondent. (Proceeding No. 2.)
    Submitted September 12, 2016;
    decided September 15, 2016
   Reported below, 131 AD3d 617.

Motion by Sanctuary for Families 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, Respondent, v Jose Aviles, Appellant.
    Submitted September 12, 2016;
    decided September 15, 2016
   Motion by Make the Road New York 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:
    The People of the State of New York, Respondent, v James Brown, Appellant.
    Submitted September 12, 2016;
    decided September 15, 2016
   Motion by District Attorneys Association of the State of New York for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and an original and nine copies filed within seven days.


text:
    The People of the State of New York, Respondent, v Lanze R. Mason, Appellant.
    Submitted August 22, 2016;
    decided September 15, 2016
   Motion to vacate this Court’s July 27, 2016 preclusion order granted.


text:
    The People of the State of New York, Respondent, v Darren Staton, Appellant.
    Submitted September 12, 2016;
    decided September 15, 2016
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 111 John Street, 9th Floor, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    In the Matter of Alan M. Simon, a Justice of the Spring Valley Village Court and the Ramapo Town Court, Rockland County, Petitioner. State Commission on Judicial Conduct, Respondent.
    Submitted September 12, 2016;
    decided September 15, 2016
   Motion by James D. Licata, Rockland County Public Defender, for leave to file a brief amicus curiae on the request for review herein dismissed as untimely (see Rules of Ct of Appeals [22 NYCRR] § 500.23 [a]).


text:
    Jennifer Cangro, Appellant, v Gina Marie Reitano, Respondent.
    Submitted August 1, 2016;
    decided September 20, 2016
   Motion for reconsideration of this Court’s November 18, 2015 dismissal order denied [see 26 NY3d 1021 (2015)].


text:
    City of New York, Respondent, v Granite State Insurance Company, Appellant.
    Submitted August 1, 2016;
    decided September 20, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Garthon Business Inc. et al., Respondents, v Kirill Ace Stein et al., Appellants.
    Submitted September 12, 2016;
    decided September 20, 2016
   Motion to vacate stay denied.


text:
    In the Matter of Jessica C. Graham, Appellant, v Charles T. Rawley, Respondent. (Proceeding Nos. 1 and 3.) In the Matter of Charles T. Rawley, Respondent, v Jessica Graham, Appellant. (Proceeding Nos. 2 and 4.)
    Submitted July 5, 2016;
    decided September 20, 2016
   Reported below, 140 AD3d 765.

Motion, insofar as it seeks leave to appeal from those portions of the Appellate Division order as affirmed so much of Family Court’s orders as denied appellant Jessica C. Graham’s violation application and as denied her motion to vacate a prior Family Court order, dismissed upon the ground that such portions of the Appellate Division order do not finally determine a proceeding within the meaning of the Constitution; motion, insofar as it seeks leave to appeal from remaining portions of the Appellate Division order, denied.


text:
    Trathony Griffin et al, Appellants, v Sirva, Inc., et al., Respondents.
    Decided September 20, 2016

      See 835 F3d 283.
   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 DiFiore and Judges Pigott, Rivera, Abdus-Salaam, Stein, Fahey and Garcia.


text:
    Niagara Mohawk Power Corporation, Doing Business as National Grid, Respondent, v Allied Healthcare Products, Inc., Appellant, and Albany Engineering Corporation, Respondent.
    Submitted August 8, 2016;
    decided September 20, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Doctor Fred L. Pasternack, Appellant, v Laboratory Corporation of America Holdings, Also Known as LabCorp, et al., Respondents.
    Submitted August 15, 2016;
    decided September 20, 2016

      See 807 F3d 14.
   Motion for reargument denied [see 27 NY3d 817 (2016)].


text:
    The People of the State of New York, Respondent, v Nasean Bonie, Defendant. Dina Sforza, a Representative of News 12 the Bronx, L.L.C., Nonparty Appellant.
    Submitted July 25, 2016;
    decided September 20, 2016
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the issues presented have become moot. Motion for leave to appeal dismissed upon the ground that the issues presented have become moot. Motion to vacate stay denied.


text:
    The People of the State of New York, Respondent, v Nasean Bonie, Defendant. Dina Sforza, a Representative of News 12 the Bronx, L.L.C., Nonparty Appellant.
    Submitted August 8, 2016;
    decided September 20, 2016
   Motion by The New York Times Company et al. for leave to appear amici curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    The People of the State of New York, Appellant, v Roger Cooney, Respondent.
    Decided September 20, 2016
   Appeal dismissed, by the Court of Appeals, sua sponte, upon the ground that no appeal lies to the Court of Appeals from the Appellate Division order of reversal (see CPL 450.90 [2]).

Judge Fahey taking no part.


text:
    The People of the State of New York, Respondent, v Perry C. Griggs, Appellant.
    Submitted August 1, 2016;
    decided September 20, 2016
   Motion for reargument denied [see 27 NY3d 602 (2016)].

Judge Fahey taking no part.


text:
    In the Matter of Matthew R. Smith, Appellant, v William J. Condon, a Justice of the Supreme Court, Suffolk County, et al., Respondents.
    Submitted August 1, 2016;
    decided September 20, 2016
   On the Court’s own motion, appeal, insofar as taken from the May 27, 2016 Appellate Division order, dismissed, without costs, upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution; appeal, insofar as taken from the October 28, 2015 Appellate Division order, dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for poor person relief dismissed as academic.


text:
    Shikema Williams, Administratrix of the Estates of Frederick Velez and Another, Deceased, et al., Appellants, v State of New York, Respondent.
    Submitted May 16, 2016;
    decided September 20, 2016
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    In the Matter of Corinne Zajac, Appellant, v New York State Division of Human Rights et al., Respondents.
    Submitted July 11, 2016;
    decided September 20, 2016
   Motion, insofar as it seeks leave to appeal as against respondent Service Employees International Union, Local 200 United, dismissed as untimely (see CPLR 5513 [b]); motion, insofar as it seeks leave to appeal as against respondent New York State Division of Human Rights, denied.


text:
    [60 NE3d 411, 38 NYS3d 516]
    Hector Taveras, Respondent, v 1149 Webster Realty Corp. et al., Appellants.
    Decided September 13, 2016

      APPEARANCES OF COUNSEL

      Gannon, Rosenfarb & Drossman, New York City (Lisa L. Gokhulsingh of counsel), for 1149 Webster Realty Corp., appellant.

      Law Offices of Michael E. Pressman, New York City (Stuart B. Cholewa of counsel), for A&K Convenience Store, Inc., appellant.

      Pollack, Pollack, Isaac & DeCicco, LLP, New York City (Brian J. Isaac 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. Defendants failed to satisfy their burden of establishing entitlement to judgment as a matter of law.

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


text:
    [63 NE3d 66, 40 NYS3d 346]
    Estee Lauder Inc., Respondent, v OneBeacon Insurance Group, LLC, et al., Appellants.
    Decided September 15, 2016

      APPEARANCES OF COUNSEL

      Steptoe & Johnson LLP, Washington, D.C. {Harry Lee, of the District of Columbia bar, admitted pro hac vice, and Leah M. Quadrino of counsel), and Steptoe & Johnson LLP, New York City {Michael C. Miller and Evan Glassman of counsel), for appellants.

      Reed Smith LLP, Washington, D.C. {John W. Schryber of counsel), for respondent.

      OMelveny & Myers LLP, New York City {Jonathan D. Hacker and Anton Metlitsky of counsel), for Century Indemnity Company, amicus curiae.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, the order of Supreme Court reinstated, and the certified question answered in the negative.

Analyzing the circumstances under the common-law waiver standard, which requires an examination of all factors, defendants cannot be said to have waived their right to assert the late-notice defense as a matter of law by failing to specifically identify late notice in their disclaimer letters. Defendants identified the late-notice defense in early communications with plaintiff before relying on a reservation of rights in two disclaimer letters. “[U]nder common-law principles, triable issues of fact exist whether defendants clearly manifested an intent to abandon their late-notice defense” (KeySpan Gas E. Corp. v Munich Reins. Am., Inc., 23 NY3d 583, 591 [2014]). Accordingly, Supreme Court properly granted defendants’ motion for leave to amend their answer to reassert the affirmative defense of late notice.

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

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, with costs, order of Supreme Court, New York County, reinstated, and certified question answered in the negative, in a memorandum.


text:
    [60 NE3d 419, 38 NYS3d 523]
    In the Matter of The 60 East 12th Street Tenants’ Association et al., Appellants, v New York State Division of Housing and Community Renewal et al., Respondents. (And Another Proceeding.)
    Decided September 15, 2016

      APPEARANCES OF COUNSEL

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

      New York State Division of Housing and Community Renewal, New York City {Jack Kuttner and Mark F. Palomino of counsel), for New York State Division of Housing and Community Renewal, respondent.

      Rosenberg & Estis, P.C., New York City {Jeffrey Turkel of counsel), for 12 Broadway Realty LLC, respondent.

      The Urban Justice Center, New York City {Garrett Wright of counsel), for The Urban Justice Center, amicus curiae.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, and certified question answered in the affirmative. The Appellate Division did not err in permitting respondent New York State Division of Housing and Community Renewal to address on remand the application of respondent 12 Broadway Realty LLC for a claimed major capital improvement rent increase based on resurfacing work consistent with the Appellate Division decision.

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


text:
    [60 NE3d 1200, 38 NYS3d 834]
    Joseph Bennett, as Guardian of James Bennett, an Incapacitated Person, Appellant, et al., Plaintiff, v Michael Hucke et al., Defendants, and Alan Kirk et al., Respondents.
    Decided August 30, 2016

      APPEARANCES OF COUNSEL

      Gathman & Bennett LLP, Huntington (James Edward Gath-man, Jr. of counsel), for appellant.

      Mazzara & Small, P.C., Bohemia (Timothy F. Mazzara of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order, insofar as appealed from, affirmed, with costs. Plaintiff failed to raise a triable issue of fact whether defendants-respondents Alan Kirk et al. are subject to general contractor liability for when James Bennett was injured.

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


text:
    [60 NE3d 1200, 38 NYS3d 834]
    The People of the State of New York, Appellant, v William Sosa, Respondent.
    Decided September 20, 2016

      APPEARANCES OF COUNSEL

      Parcel D. Clark, District Attorney, Bronx (William Terrell, III, of counsel), for appellant.

      Seymour W. James, Jr., The Legal Aid Society, New York City (Jeffrey Dellheim of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the judgment of Supreme Court reinstated. The record here evidences that defendant was aware that he had the right to a trial, had the benefit of his counsel’s efforts and guidance, spoke with counsel, and chose to forgo trial in favor of entering a guilty plea. Therefore, the totality of the circumstances establish the voluntariness of the plea (People v Conceicao, 26 NY3d 375, 382-384 [2015]).

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

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed and judgment of Supreme Court, Bronx County, reinstated, in a memorandum.


text:
    [61 NE3d 506, 39 NYS3d 107]
    The People of the State of New York, Respondent, v David Bookman, Appellant.
    Decided September 13, 2016
    APPEARANCES OF COUNSEL

      Lynn W.L. Fahey, Appellate Advocates, New York City (Paul S. Laisure and Barry Stendig of counsel), for appellant.

      Richard A. Brown, District Attorney, Kew Gardens (.Antara D. Kanth 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. The lower courts’ determinations on the suppression motion, which involve mixed questions of law and fact, have support in the record and, thus, are beyond our further review.

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


text:
    (September 1, 2016 through
    September 30, 2016)
    Ivies, Matter of, v Kron
   App Div, 2d Dept: 2016 9/21/16 NY Slip Op 75813(U)


text:
    Suzanne QQ., Matter of, v Ben RR.
   3d Dept: 138 AD3d 1210 9/21/16


text:
    (September 1, 2016 through
    September 30, 2016)
    People v Abdallah
   2d Dept: 140 AD3d 975 (Kings)

denied 9/12/16 (Stein, J.)


text:
    People v Abdul-Hakim
   2d Dept: 141 AD3d 535 (Kings)

denied 9/22/16 (Garcia, J.)


text:
    People v Acevedo
   1st Dept: 140 AD3d 494 (NY)

denied 9/30/16 (Abdus-Salaam, J.)


text:
    People v Allen
   4th Dept: 140 AD3d 1674 (Monroe)

denied 9/13/16 (Garcia, J.)


text:
    People v Alvarado
   2d Dept: 139 AD3d 1077 (Westchester)

denied 9/7/16 (Stein, J.)


text:
    People v Andujar
   App Term, 1st Dept: 52 Misc 3d 57 (NY)

denied 9/26/16 (Abdus-Salaam, J.)


text:
    People v Angel R.R.
   App Term, 2d Dept, 9th & 10th Jud Dists: 52 Misc 3d 84 (Suffolk)

denied 9/8/16 (Stein, J.)


text:
    People v Aragon
   App Term, 2d Dept, 2d, 11th & 13th Jud Dists: 52 Misc 3d 136(A) (Queens)

denied 9/20/16 (Garcia, J.)


text:
    People v Arps
   1st Dept: 140 AD3d 455 (NY)

denied 9/23/16 (Garcia, J.)


text:
    People v Arroyo
   App Div, 1st Dept: 2016 NY Slip Op 62558(U) (NY)

denied reconsideration 9/21/16 (DiFiore, Ch. J.)


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

denied 9/26/16 (Fahey, J.)


text:
    People v Barnes
   1st Dept: 140 AD3d 443 (Bronx)

denied 9/26/16 (Pigott, J.)


text:
    People v Bibeau
   3d Dept: 140 AD3d 1530 (Clinton)

denied 9/30/16 (Abdus-Salaam, J.)


text:
    People v Blunt
   1st Dept: 140 AD3d 669 (NY)

denied 9/8/16 (Stein, J.)


text:
    People v Bowen
   App Div, 4th Dept, 5/19/16 (Monroe)

dismissed 9/26/16 (Pigott, J.)


text:
    People v Boyd
   4th Dept: 141 AD3d 1110 (Monroe)

denied 9/12/16 (DiFiore, Ch. J.)


text:
    People v Boykin
   App Div, 2d Dept: 2016 NY Slip Op 76773(U) (Orange)

dismissed 9/29/16 (Fahey, J.)


text:
    People v Brown (David)
   4th Dept: 140 AD3d 1682 (Onondaga)

denied 9/30/16 (Abdus-Salaam, J.) (Appeal No. 1)


text:
    People v Brown (David)
   4th Dept: 140 AD3d 1683 (Onondaga)

denied 9/30/16 (Abdus-Salaam, J.) (Appeal No. 2)


text:
    People v Bunce
   2d Dept: 141 AD3d 536 (Suffolk)

denied 9/30/16 (Abdus-Salaam, J.)


text:
    People v Busano
   2d Dept: 141 AD3d 538 (Kings)

denied 9/29/16 (Stein, J.)


text:
    People v Bush
   App Div, 2d Dept: 2016 NY Slip Op 64348(U) (Kings)

denied reconsideration 9/26/16 (Fahey, J.)


text:
    People v Butler
   4th Dept: 140 AD3d 1610 (Monroe)

denied 9/7/16 (DiFiore, Ch. J.)


text:
    People v Carmel
   4th Dept: 138 AD3d 1448 (Monroe)

denied 9/13/16 (Garcia, J.)


text:
    People v Carter
   3d Dept: 140 AD3d 1394 (St. Lawrence)

denied 9/26/16 (Pigott, J.)


text:
    People v Castano
   App Term, 1st Dept: 48 Misc 3d 127(A) (Bronx)

denied 9/2/16 (Fahey, J.)


text:
    People v Cehfus
   4th Dept: 140 AD3d 1644 (Onondaga)

denied 9/1/16 (DiFiore, Ch. J.)

       Denied, with leave to renew within 30 days after the Court of Appeals renders a decision in People v Prindle (129 AD3d 1506 [4th Dept 2015], lv granted 26 NY3d 1091 [2015]), People v Wright (134 AD3d 1059 [2d Dept 2015], lv granted 27 NY3d 1009 [2016]), and People v Garvin (130 AD3d 644 [2d Dept 2015], lv granted 26 NY3d 1094 [2015]).


text:
    People v Cerroni
   4th Dept: 141 AD3d 1114 (Monroe)

denied 9/20/16 (Garcia, J.)


text:
    People v Chant
   4th Dept: 140 AD3d 1645 (Chautauqua)

denied 9/7/16 (Stein, J.)


text:
    People v Cochran
   3d Dept: 140 AD3d 1198 (Albany)

denied 9/26/16 (Abdus-Salaam, J.)


text:
    People v Cole
   2d Dept: 140 AD3d 1183 (Kings)

denied 9/26/16 (Pigott, J.)


text:
    People v Columna
   1st Dept: 140 AD3d 580 (NY)

denied 9/23/16 (Garcia, J.)


text:
    People v Corra
   4th Dept: 141 AD3d 1175 (Niagara)

denied 9/20/16 (Garcia, J.)


text:
    People v Crockett
   1st Dept: 140 AD3d 576 (NY)

denied 9/6/16 (Stein, J.)


text:
    People v Cruz
   2d Dept: 137 AD3d 1158 (Nassau)

denied 9/8/16 (Stein, J.)


text:
    People v Culkin
   4th Dept: 141 AD3d 1114 (Erie)

denied 9/6/16 (DiFiore, Ch. J.)


text:
    People v Cwalinski
   2d Dept: 140 AD3d 1185 (Suffolk)

denied 9/20/16 (Garcia, J.)


text:
    People v Daniels
   2d Dept: 140 AD3d 1083 (Kings)

denied 9/29/16 (Fahey, J.)


text:
    People v Davis (Clayton)
   2d Dept: 141 AD3d 675 (Queens)

denied 9/12/16 (Stein, J.)


text:
    People v Davis (Lloyd)
   2d Dept: 139 AD3d 966 (Queens)

denied 9/6/16 (Rivera, J.)


text:
    People v Dean
   App Div, 4th Dept, 6/1/16 (Ontario)

dismissed 9/19/16 (Garcia, J.)


text:
    People v Desgrosiellier
   4th Dept: 140 AD3d 1675 (Niagara)

denied 9/6/16 (Stein, J.)


text:
    People v Diaz
   App Term, 1st Dept: 51 Misc 3d 146(A) (Bronx)

denied 9/30/16 (Abdus-Salaam, J.)


text:
    People v Diop
   App Term, 1st Dept: 51 Misc 3d 152(A) (NY)

denied 9/26/16 (Fahey, J.)


text:
    People v Duren
   App Div, 2d Dept: 2016 NY Slip Op 80383(U) (Nassau)

dismissed 9/30/16 (DiFiore, Ch. J.)


text:
    People v E
   3d Dept: 140 AD3d 1198 (Albany)

denied 9/26/16 (Abdus-Salaam, J)


text:
    People v E-Murder
   3d Dept: 140 AD3d 1198 (Albany)

denied 9/26/16 (Abdus-Salaam, J.)


text:
    People v Ennis
   1st Dept: 139 AD3d 505 (NY)

denied 9/13/16 (Garcia, J.)


text:
    People v Faulks
   4th Dept: 140 AD3d 1610 (Monroe)

denied 9/7/16 (DiFiore, Ch. J.)


text:
    People v Garcia (Frank)
   App Div, 4th Dept, 5/17/16 (Ontario)

dismissed 9/19/16 (Abdus-Salaam, J)


text:
    People v Garcia (Rolando)
   1st Dept: 140 AD3d 480 (Bronx)

denied 9/26/16 (Pigott, J.)


text:
    People v Goldman
   3d Dept: 139 AD3d 1111 (Albany)

denied 9/26/16 (Fahey, J.)


text:
    People v Graves
   App Div, 2d Dept: 2015 NY Slip Op 91972(U) (Kings)

denied reconsideration 9/6/16 (Stein, J.)


text:
    People v Green (Avery)
   App Div, 2d Dept: 2016 NY Slip Op 77878(U) (Dutchess)

dismissed 9/21/16 (DiFiore, Ch. J.)


text:
    People v Green (Bryant)
   1st Dept: 140 AD3d 616 (NY)

denied 9/8/16 (Stein, J.)


text:
    People v Green (Maurice)
   County Ct, 6/30/16 (Erie)

denied 9/30/16 (Abdus-Salaam, J.)


text:
    People v Hand
   1st Dept: 140 AD3d 636 (NY)

denied 9/26/16 (Fahey, J.)


text:
    People v Harleston
   1st Dept: 139 AD3d 412 (NY)

denied 9/12/16 (Stein, J.)


text:
    People v Harris
   4th Dept: 141 AD3d 1121 (Monroe)

denied 9/26/16 (Abdus-Salaam, J.)


text:
    People v Hernandez
   3d Dept: 140 AD3d 1521 (Sullivan)

denied 9/6/16 (Rivera, J.)


text:
    People v Herrera
   2d Dept: 138 AD3d 1141 (Orange)

denied 9/12/16 (Stein, J.)


text:
    People v Heywood
   1st Dept: 138 AD3d 607 (Bronx)

denied 9/12/16 (Stein, J.)


text:
    People v Hill
   2d Dept: 141 AD3d 675 (Kings)

denied 9/6/16 (Stein, J.)


text:
    People v Hixon
   4th Dept: 138 AD3d 1496 (Niagara)

denied 9/6/16 (Stein, J.)


text:
    People v Jennings
   4th Dept: 140 AD3d 1705 (Monroe)

denied 9/6/16 (Stein, J.)


text:
    People v Johnston
   4th Dept: 138 AD3d 1417 (Ontario)

denied 9/20/16 (Garcia, J.)


text:
    People v Jones (Harold)
   1st Dept: 140 AD3d 541 (NY)

denied 9/26/16 (Fahey, J.)


text:
    People v Jones (Jamie)
   App Div, 1st Dept: 2015 NY Slip Op 62546(U) (NY)

denied 9/21/16 (Garcia, J.)


text:
    People v Jones (Lamont)
   App Div, 1st Dept: 2015 NY Slip Op 62546(U) (NY)

denied 9/21/16 (Garcia, J.)


text:
    People v Jones (Vernon)
   App Div, 3d Dept: 2016 NY Slip Op 74760(U) (Rensselaer)

denied 9/30/16 (Abdus-Salaam, J.)


text:
    People v Kaye
   2d Dept: 137 AD3d 938 (Kings)

denied 9/19/16 (Stein, J.)


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

denied 9/29/16 (DiFiore, Ch. J.)


text:
    People v Koiki
   2d Dept: 140 AD3d 980 (Kings)

denied 9/26/16 (Fahey, J.)


text:
    People v Lifrieri
   App Div, 2d Dept: 2016 NY Slip Op 74299(U) (Kings)

dismissed 9/2/16 (Fahey, J.)


text:
    People v Ligammari
   4th Dept: 140 AD3d 1631 (Monroe)

denied 9/30/16 (Abdus-Salaam, J.)


text:
    People v Lipson
   4th Dept: 139 AD3d 1383 (Orleans)

denied 9/8/16 (Stein, J.)


text:
    People v Littlejohn
   1st Dept: 139 AD3d 612 (NY)

denied 9/2/16 (Fahey, J.)


text:
    People v Lobaton
   3d Dept: 140 AD3d 1534 (Ulster)

denied 9/29/16 (Fahey, J.)


text:
    People v Lopez
   App Div, 1st Dept: 2015 NY Slip Op 88736(U) (Bronx)

dismissed 9/19/16 (Garcia, J.)


text:
    People v MacFarlane
   2d Dept: 140 AD3d 1089 (Suffolk)

denied 9/6/16 (Rivera, J.)


text:
    People v Madison
   2d Dept: 140 AD3d 793 (Suffolk)

denied 9/2/16 (Fahey, J.)


text:
    People v Martin
   3d Dept: 136 AD3d 1218 (Albany)

denied 9/20/16 (Garcia, J.)


text:
    People v Martinaj
   App Div, 1st Dept: 2016 NY Slip Op 60144(U) (NY)

denied reconsideration 9/6/16 (Stein, J.)


text:
    People v Martinez
   1st Dept: 141 AD3d 429 (NY)

denied 9/26/16 (Fahey, J.)


text:
    People v Massey
   4th Dept: 140 AD3d 1736 (Erie)

denied 9/22/16 (Garcia, J.)


text:
    People v Maxwell
   App Div, 2d Dept: 2016 NY Slip Op 69100(U) (Westchester)

denied reconsideration 9/6/16 (Stein, J.)


text:
    People v McCants
   County Ct, 3/14/16 (Monroe)

denied 9/12/16 (Stein, J.)


text:
    People v McCullough
   4th Dept: 141 AD3d 1125 (Monroe)

denied 9/12/16 (Stein, J.)


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

denied 9/29/16 (DiFiore, Ch. J.)


text:
    People v McVay
   2d Dept: 140 AD3d 1090 (Suffolk)

denied 9/12/16 (DiFiore, Ch. J.)


text:
    People v Meadow
   4th Dept: 140 AD3d 1596 (Onondaga)

denied reconsideration 9/19/16 (Stein, J.)


text:
    People v Medina
   App Div, 1st Dept: 2016 NY Slip Op 71757(U) (NY)

denied 9/7/16 (Stein, J.)


text:
    People v Moore
   2d Dept: 140 AD3d 1091 (Kings)

denied 9/28/16 (Rivera, J.)


text:
    People v Morales
   1st Dept: 137 AD3d 576 (Bronx)

denied 9/19/16 (Garcia, J.)


text:
    People v Morren
   App Term, 2d Dept, 2d, 11th & 13 th Jud Dists: 52 Misc 3d 132(A) (Queens)

denied 9/6/16 (Stein, J.)


text:
    People v Mosley
   4th Dept: 141 AD3d 1102 (Monroe)

denied 9/6/16 (Rivera, J.)


text:
    People v Negrin
   2d Dept: 140 AD3d 1192 (Kings)

denied 9/28/16 (Rivera, J.)


text:
    People v Nelson
   1st Dept: 139 AD3d 436 (NY)

denied 9/2/16 (Fahey, J.)


text:
    People v Newsome (Michael)
   4th Dept: 140 AD3d 1695 (Wayne)

denied 9/30/16 (DiFiore, Ch. J.) (Appeal No. 1)


text:
    People v Newsome (Michael)
   4th Dept: 140 AD3d 1696 (Wayne)

denied 9/30/16 (DiFiore, Ch. J.) (Appeal No. 2)


text:
    People v Noble
   App Term, 1st Dept: 51 Misc 3d 147(A) (NY)

denied 9/22/16 (Garcia, J.)


text:
    People v Nunez
   App Div, 2d Dept: 2016 NY Slip Op 76433(U) (Queens)

dismissed 9/19/16 (Abdus-Salaam, J.)


text:
    People v Ortiz
   1st Dept: 140 AD3d 631 (Bronx)

denied 9/2/16 (Fahey, J.)


text:
    People v Owens
   2d Dept: 141 AD3d 675 (Kings)

denied 9/6/16 (Rivera, J.)


text:
    People v Patron
   2d Dept: 141 AD3d 545 (Kings)

denied 9/26/16 (Abdus-Salaam, J.)


text:
    People v Paul
   4th Dept: 139 AD3d 1383 (Orleans)

denied 9/8/16 (Stein, J.)


text:
    People v Pops
   3d Dept: 137 AD3d 1323 (Albany)

denied 9/26/16 (Fahey, J.)


text:
    People v Prince
   2d Dept: 136 AD3d 844 (Kings)

denied 9/26/16 (Fahey, J.)


text:
    People v Ragen
   2d Dept: 140 AD3d 1092 (Nassau)

denied 9/30/16 (Abdus-Salaam, J.)


text:
    People v Ramirez
   1st Dept: 140 AD3d 545 (NY)

denied 9/12/16 (Stein, J.)


text:
    People v Ramos
   App Div, 3d Dept: 2016 NY Slip Op 73432(U) (Montgomery)

denied 9/1/16 (Garcia, J.)


text:
    People v Raymond
   App Term, 2d Dept, 2d, 11th & 13th Jud Dists: 51 Misc 3d 149(A) (Kings)

denied 9/21/16 (Garcia, J.)


text:
    People v Redd
   2d Dept: 141 AD3d 546 (Queens)

withdrawn 9/27/16 (Abdus-Salaam, J.)


text:
    People v Richards
   2d Dept: 140 AD3d 989 (Kings)

denied 9/30/16 (Abdus-Salaam, J.)


text:
    People v Richardson
   App Div, 3d Dept: 2016 NY Slip Op 76188(U) (Rensselaer)

dismissed 9/19/16 (Garcia, J.)


text:
    People v Rimmen
   4th Dept: 140 AD3d 1714 (Niagara)

denied 9/30/16 (Abdus-Salaam, J.)


text:
    People v Rios
   1st Dept: 139 AD3d 620 (NY)

denied 9/12/16 (Stein, J.)


text:
    People v Robinson (Christopher)
   2d Dept: 138 AD3d 764 (Nassau)

denied 9/26/16 (Fahey, J.)


text:
    People v Robinson (Steven)
   4th Dept: 140 AD3d 1655 (Monroe)

denied 9/21/16 (Garcia, J.)


text:
    People v Rodriguez
   2d Dept: 139 AD3d 883 (Queens)

denied 9/8/16 (Stein, J.)


text:
    People v Samaroo
   2d Dept: 137 AD3d 1308 (Queens)

denied 9/21/16 (Pigott, J.)


text:
    People v Saunders
   County Ct, 5/18/16 (Erie)

denied 9/26/16 (Pigott, J.)


text:
    People v Schumaker
   4th Dept: 136 AD3d 1369 (Erie)

denied reconsideration 9/19/16 (Garcia, J.)


text:
    People v Scott
   1st Dept: 140 AD3d 617 (NY)

denied 9/22/16 (Garcia, J.)


text:
    People v Shannon
   3d Dept: 139 AD3d 1250 (Chemung)

denied 9/20/16 (Garcia, J.)


text:
    People v Showell
   App Term, 1st Dept: 52 Misc 3d 131(A) (NY)

denied 9/30/16 (DiFiore, Ch. J.)


text:
    People v Simonovichyus
   App Term, 1st Dept: 51 Misc 3d 153(A) (NY)

denied 9/26/16 (Fahey, J.)


text:
    People v Smith (Henry)
   3d Dept: 137 AD3d 1323 (Albany)

denied 9/26/16 (Fahey, J.)


text:
    People v Smith (Leroy)
   4th Dept: 140 AD3d 1699 (Onondaga)

granted 9/6/16 (DiFiore, Ch. J.)


text:
    People v Snype
   2d Dept: 141 AD3d 737 (Orange)

denied 9/8/16 (Stein, J.)


text:
    People v Sommers
   3d Dept: 140 AD3d 1537 (Montgomery)

denied 9/30/16 (Abdus-Salaam, J.)


text:
    People v Soto
   4th Dept: 141 AD3d 1088 (Monroe)

denied 9/30/16 (Abdus-Salaam, J.)


text:
    People v Spears
   4th Dept: 140 AD3d 1629 (Monroe)

denied 9/29/16 (DiFiore, Ch. J.)


text:
    People v Stegeman
   2d Dept: 139 AD3d 1092 (Dutchess)

denied 9/30/16 (Fahey, J.)


text:
    People v Thomas
   4th Dept: 136 AD3d 1390 (Erie)

denied reconsideration 9/12/16 (DiFiore, Ch. J.)


text:
    People v Thompson (Antwan)
   App Div, 2d Dept: 2016 NY Slip Op 75830(U) (Kings)

dismissed 9/6/16 (Stein, J.)


text:
    People v Thompson (Garnell)
   2d Dept: 141 AD3d 551 (Kings)

denied 9/20/16 (Garcia, J.)


text:
    People v Tomeno
   4th Dept: 141 AD3d 1120 (Monroe)

denied 9/26/16 (Abdus-Salaam, J.)


text:
    People v Torres (Adan)
   1st Dept: 140 AD3d 478 (NY)

denied 9/21/16 (Garcia, J.)


text:
    People v Torres (Carlos)
   1st Dept: 140 AD3d 534 (NY)

denied 9/8/16 (Stein, J.)


text:
    People v Triplett
   App Div, 4th Dept, 6/28/16 (Erie)

dismissed 9/21/16 (DiFiore, Ch. J.)


text:
    People v Tyler
   4th Dept: 140 AD3d 1694 (Monroe)

denied 9/30/16 (Abdus-Salaam, J.)


text:
    People v Villanueva
   2d Dept: 140 AD3d 990 (Kings)

denied 9/26/16 (Fahey, J.)


text:
    People v Wallace (Eric)
   1st Dept: 140 AD3d 672 (NY)

denied 9/26/16 (Fahey, J.)


text:
    People v Wallace (Erik)
   1st Dept: 140 AD3d 672 (NY)

denied 9/26/16 (Fahey, J.)


text:
    People v Wallace (Shelby)
   4th Dept: 141 AD3d 1115 (Erie)

denied 9/20/16 (Garcia, J.)


text:
    People v Weathington
   4th Dept: 141 AD3d 1173 (Erie)

denied 9/12/16 (DiFiore, Ch. J.) (Appeal No. 2)


text:
    People v Webster
   2d Dept: 140 AD3d 1196 (Kings)

denied 9/26/16 (Fahey, J.)


text:
    People v Whetstone
   2d Dept: 136 AD3d 662 (Queens)

denied 9/6/16 (Stein, J.)


text:
    People v White
   1st Dept: 141 AD3d 463 (NY)

denied 9/26/16 (Abdus-Salaam, J.)


text:
    People v Whitty
   2d Dept: 140 AD3d 802 (Suffolk)

denied 9/12/16 (Stein, J.)


text:
    People v William A.
   App Term, 2d Dept, 2d, 11th & 13th Jud Dists: 52 Misc 3d 133(A) (Queens)

denied 9/26/16 (Fahey, J.)


text:
    People v Williams (Cammesoa)
   4th Dept: 140 AD3d 1749 (Niagara)

denied 9/26/16 (Abdus-Salaam, J.)


text:
    People v Williams (Kevin)
   3d Dept: 140 AD3d 1535 (Chemung)

withdrawn 9/27/16 (Abdus-Salaam, J.)


text:
    People v Wiz
   2d Dept: 139 AD3d 1092 (Dutchess)

denied 9/30/16 (Fahey, J.)


text:
    People v Young
   2d Dept: 141 AD3d 551 (Kings)

denied 9/2/16 (Fahey, J.)


text:
    People v Zalevsky
   2d Dept: 137 AD3d 1173 (Kings)

denied reconsideration 9/7/16 (Stein, J.)


text:
    People v Zimba
   2d Dept: 140 AD3d 1098 (Westchester)

denied 9/30/16 (Abdus-Salaam, J.)


text:
    (September 1, 2016 through
    September 30, 2016)
    People v Evans
   1st Dept: 141 AD3d 120 (NY)

granted 9/15/16 (Tom, J.)


text:
    People v Freeman
   4th Dept: 141 AD3d 1164 (Monroe)

granted 9/16/16 (Whalen, P.J.)


text:
    People v Smith (Dwight)
   1st Dept: 143 AD3d 31 (Bronx)

granted 9/29/16 (Kapnick, J.)


text:
    Maninder Bhugra, Appellant, v Massachusetts Casualty Insurance Company et al., Respondents.
    Decided October 20, 2016
   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:
    In the Matter of City of New York et al., Appellants, v New York State Nurses Association et al., Respondents.
    Submitted September 19, 2016;
    decided October 20, 2016
   Motion by New York State Public Employment Relations Board for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and an original and nine copies filed within seven days.


text:
    Contact Chiropractic, P.C., as Assignee of Girtha Butler, Respondent, v New York City Transit Authority, Appellant.
    Submitted September 26, 2016;
    decided October 20, 2016
   Motion by City of New York for leave to file a letter brief amicus curiae on the appeal herein granted and the proposed letter brief is accepted as filed. One copy of the letter brief must be served and an original and two copies filed within seven days.


text:
    In the Matter of Amy R. Gurvey (Admitted as Amy Rebecca Weissbrod), an Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted June 6, 2016;
    decided October 20, 2016
   Motion, insofar as it seeks leave to appeal from so much of the April 21, 2016 Appellate Division order as denied appellant’s motion to compel the Departmental Disciplinary Committee for the First Judicial Department to make certain files available to her, denied; motion for leave to appeal otherwise dismissed upon the ground that the remainder of such order does not finally determine an action or proceeding within the meaning of the Constitution.

Judge Abdus-Salaam taking no part.


text:
    In the Matter of Amy R. Gurvey (Admitted as Amy Rebecca Weissbrod), an Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted July 25, 2016;
    decided October 20, 2016
   Motion, insofar as it seeks reargument of this Court’s June 9, 2016 order on appellant’s motion for leave to appeal, denied [see 27 NY3d 1052 (2016)]; motion, insofar as it seeks reconsideration etc. of this Court’s March 26, 2013 dismissal order (see 20 NY3d 1085 [2013]), dismissed upon the ground that it does not lie, appellant having previously moved for reconsideration of such order (see 21 NY3d 968 [2013]; Rules of Ct of Appeals [22 NYCRR] § 500.24 [e]).

Judge Abdus-Salaam taking no part.


text:
    Magen David of Union Square et al., Plaintiffs, and The Sixteenth Street Synagogue, Appellant, v 3 West 16th Street, LLC, Respondent. (And a Third-Party Action.)
    Submitted June 27, 2016;
    decided October 20, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Raymond Newcomb et al., Appellants, v Middle Country Central School District, Respondent.
    Submitted October 11, 2016;
    decided October 20, 2016
   Motion by New York State Trial Lawyers Association for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    New York State United Teachers, by its President, Karen E. Magee, et al., Appellants, v State of New York et al., Respondents.
    Decided October 20, 2016
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Patrolmen’s Benevolent Association of the City of New York, Inc., et al., Appellants, v City of New York et al., Respondents.
    Decided October 20, 2016
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    The People of the State of New York, Respondent, v Joseph Bridgeforth, Appellant.
    Submitted October 17, 2016;
    decided October 20, 2016
   Motion by Fred T. Korematsu Center for Law and Equality et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    The People of the State of New York, Respondent, v Albert Edward, Appellant.
    Submitted September 26, 2016;
    decided October 20, 2016
   Motion for assignment of counsel granted and Seymour W. James, Jr., Esq., The Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Mary Anne Grady Flores, Appellant.
    Submitted September 19, 2016;
    decided October 20, 2016
   Motion, pursuant to CPL 460.60 (3), to extend the time for argument or submission of the appeal and to continue the stay granted and stay continued until determination of the appeal.


text:
    The People of the State of New York, Appellant, v Marlo S. Helms, Respondent.
    Submitted October 3, 2016;
    decided October 20, 2016
   Motion for assignment of counsel granted and Timothy P. Donaher, Esq., Monroe County Public Defender, 10 N. Fitzhugh Street, Rochester, New York 14614 assigned as counsel to the respondent on the appeal herein.


text:
    The People of the State of New York, Respondent, v Michael Johnson, Appellant.
    Submitted October 3, 2016;
    decided October 20, 2016
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 111 John Street, 9th Floor, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Bernell Jones, Appellant.
    Submitted October 17, 2016;
    decided October 20, 2016
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Robert Lunan, Appellant.
    Submitted October 17, 2016;
    decided October 20, 2016
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Leroy Savage Smith, Appellant.
    Submitted October 3, 2016;
    decided October 20, 2016
   Motion for assignment of counsel granted and Philip Rothschild, Esq., 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 Daszell Taylor, Appellant.
    Submitted September 19, 2016;
    decided October 20, 2016
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York ex rel. Ronald Ackridge, Appellant, v Warden Diaz, Respondent.
    Decided October 20, 2016
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.

Chief Judge DiFiore taking no part.


text:
    The People of the State of New York ex rel. Terrell Taylor, Appellant, v S. Dolce, Superintendent of Orleans Correctional Facility, Respondent.
    Decided October 20, 2016
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    The People of the State of New York ex rel. Masao Yonamine, Appellant, v William J. Connolly, Superintendent, Fishkill Correctional Facility, Respondent.
    Submitted August 8, 2016;
    decided October 20, 2016
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    Anthony Turturro, an Infant, by His Mother and Natural Guardian, Elida Turturro, et al., Respondents, v City of New York, Appellant, and Louis Pascarella et al., Respondents.
    Submitted October 17, 2016;
    decided October 20, 2016
   Motion by International Municipal Lawyers Association 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:
    Fred Simcha Wang, Appellant, v LSUC et al., Respondents, et al., Defendants.
    Decided October 20, 2016
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Foster Williams, Appellant, v Department of Corrections and Community Supervision, Respondent.
    Submitted September 12, 2016;
    decided October 20, 2016
   Motion to strike denied.


text:
    [63 NE3d 68, 40 NYS3d 348]
    The People of the State of New York, Respondent, v Larry Brown, Appellant.
    Decided October 20, 2016

      APPEARANCES OF COUNSEL

      Robert S. Dean, Center for Appellate Litigation, New York City (Claudia B. Flores of counsel), for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant’s claims regarding the voluntariness of his plea lack merit, and the Appellate Division properly affirmed the trial court’s denial of defendant’s motion to withdraw his guilty plea.

Additionally, defendant was sentenced as a first felony offender to a lawful prison term, 2V3 to 7 years, for such an offender. Defendant’s new argument on this appeal—contrary to his assertion to the plea court—that his status as a first felony offender is erroneous; that, thus, his sentence is illegal as a matter of law; and that he must be resentenced as a second felony offender, is not established on this record. Accordingly, his request for resentencing, made for the first time on this direct appeal, fails, without prejudice to defendant, if he be so advised, moving pursuant to CPL 440.20 for resentencing.

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

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


text:
    [63 NE3d 1133, 41 NYS3d 189]
    The People of the State of New York, Respondent, v Roy S. Kangas, Appellant.
    Argued September 14, 2016;
    decided October 20, 2016
    APPEARANCES OF COUNSEL

      Leonard & Curley, PLLC, Rome CMark C. Curley of counsel), for appellant.

      Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of County Court should be affirmed.

During a jury trial on charges of driving while intoxicated, defendant objected to the admission into evidence of the People’s exhibit containing a record of testing of the simulator solution used during the breath test that the police administered to defendant. Defendant objected on the ground that the certifications contained within the exhibit did not include a verification to show that the record could not be tampered with pursuant to CPLR 4539 (b). The trial court admitted the exhibit into evidence over defendant’s objection.

On appeal, County Court correctly held that CPLR 4539 (b) does not apply to documents, such as the record of simulator solution testing, that were originally created in electronic form. Subdivision (b), which was added to CPLR 4539 in 1996 (see L 1996, ch 27, § 1), requires an authentication “by competent testimony or affidavit” to include information about “the manner or method by which tampering or degradation of the reproduction is prevented” when “[a] reproduction [is] created by any process which stores an image of any writing, entry, print or representation” (CPLR 4539 [b] [emphasis added]). CPLR 4539 (a), in turn, allows “reproduction[s]” made “in the regular course of business” to be admissible as the original. Thus, CPLR 4539 (b) applies only when a document that originally existed in hard copy form is scanned to store a digital “image” of the hard copy document, and then a “reproduction” of the digital image is printed in the ordinary course of business (see CPLR 4539 [a], [b]; see generally People v Rath, 41 Misc 3d 869, 872-880 [Nassau Dist Ct 2013]; Vincent C. Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 4539 at 752-754 [2007 ed]). Inasmuch as the record of simulator solution testing was created electronically in the first instance, and was not scanned to create an “image” of a hard copy document, County Court properly concluded that the certification need not comply with CPLR 4539 (b).

County Court correctly held that the applicable statute is CPLR 4518 (a), which was amended in 2002 (see L 2002, ch 136, § 1) to provide that an “electronic record . . . shall be admissible in a tangible exhibit that is a true and accurate representation of such electronic record” (CPLR 4518 [a]). The statute further provides that the court “may consider the method or manner by which the electronic record was stored, maintained or retrieved in determining whether the exhibit is a true and accurate representation of such electronic record,” but “[a] 11 other circumstances of the making of the memorandum or record . . . may be proved to affect its weight,” and “shall not affect its admissibility” (id. [emphasis added]).

The 2002 amendment to CPLR 4518 (a) was adopted by the legislature upon the recommendation of the Chief Administrative Judge’s Advisory Committee on Civil Practice specifically because the Committee and the legislature concluded that CPLR 4539 (b) had no application to documents originally created in electronic form.

“CPLR 4539, which deals with reproductions such as carbon copies of photocopies, is not an adequate vehicle for providing for the introduction of exhibits derived from electronic records. This is because CPLR 4539 requires that the reproduction itself have been created in the ordinary course of business. It is anticipated that reliable recompilations of electronic records often would not have been created in the ordinary course of business. CPLR 4539(b), in dealing with reproductions through processes which store an image, and which processes do not permit alterations, deletions or changes without leaving a record of such additions, does not generally address database records and could impose technical impediments to admissibility based on difficulty and proof of the protections against undetectable alteration. The 1996 legislation that added subdivision (b) ensures that an electronic image of a document may be introduced into evidence in the same manner as the original document, and allows for paper intensive industries to safely dispose of hard copy and archive only optically-scanned images. However, the 1996 legislation does not deal with technologies that record information other than through an image, and also such legislation could have the unintended effect of restricting the admissibility of electronic records not stored with the technology described in the legislation” (Senate Mem in Support of L 2002, ch 136, 2002 McKinney’s Session Laws of NY at 1763; see also Rath, 41 Misc 3d at 876-880; Vincent C. Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C4518:4A at 454-455 [2007 ed]).

Contrary to defendant’s further contention, County Court properly held that the record of simulator solution testing and the records pertaining to the maintenance and calibration of the breath test instrument were admissible based upon the attached state agency certifications, and County Court did not err in disregarding the inaccurate certifications submitted by the Oneida County Sheriffs Office with respect to those records. The trial court also relied upon the state agency certifications when admitting the documents into evidence, and therefore County Court did not violate CPL 470.15 (1) in concluding that the records were admissible based on those certifications (see People v Nicholson, 26 NY3d 813, 825 [2016]). Finally, we reject defendant’s contention that the state agency certifications attached to the records of maintenance and calibration of the breath test instrument did not comply with CPLR 4518 (c).

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

Order affirmed, in a memorandum.


text:
    [63 NE3d 1132, 41 NYS3d 188]
    The People of the State of New York, Appellant, v Iquan Wiggs, Respondent.
    Decided October 20, 2016

      APPEARANCES OF COUNSEL

      Richard A. Brown, District Attorney, Kew Gardens (Deborah E. Wassel of counsel), for appellant.

      Lynn W.L. Fahey, Appellate Advocates, New York City {David P. Greenberg of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Where the trial court “has read the precise content of the [jury] note into the record in the presence of counsel, defendant, and the jury,” the trial court has “complied with its core responsibility to give counsel meaningful notice of the jury’s notes,” and “the court’s failure to discuss the note with counsel before recalling the jury is not a mode of proceedings error” (People v Nealon, 26 NY3d 152, 160-162 [2015]). Furthermore,

“where counsel has meaningful notice of the content of a jury note and of the trial court’s response, or lack thereof, to that note, the court’s alleged violation of the meaningful response requirement does not constitute a mode of proceedings error, and counsel is required to preserve any claim of error for appellate review” (People v Mack, 27 NY3d 534, 537 [2016], rearg denied 28 NY3d 944 [2016]).

Here, the trial court complied with its responsibility to provide counsel with meaningful notice of the jury’s notes by reading the notes verbatim into the record in the presence of counsel, defendant, and the jury (see Nealon, 26 NY3d at 160-162). Inasmuch as counsel had meaningful notice of the jury notes, the trial court’s failure to provide a response to the jury’s outstanding request for a readback of testimony before accepting the verdict does not constitute a mode of proceedings error (see Mack, 27 NY3d at 537). Counsel was required to object to preserve any claim of error for this Court’s review. “Although the court’s procedure here may have been error, it was not a mode of proceedings error, and we have no jurisdiction to review it” (id. at 544).

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

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed and case remitted to the Appellate Division, Second Department, for consideration of the facts and issues raised but not determined on the appeal to that Court, in a memorandum.


text:
    [63 NE3d 1152, 41 NYS3d 208]
    The People of the State of New York, Respondent, v James M. Roshia, Jr., Appellant.
    Decided October 20, 2016

      APPEARANCES OF COUNSEL

      Albert F. Lawrence, Greenfield Center, for appellant.

      Alexander Lesyk, Special Prosecutor, Norwood, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. Defendant was indicted by a grand jury, a sexual assault evidence kit was taken from the victim, and County Court’s order directing defendant to provide a DNA sample was authorized by statute (CPL 240.40 [2] [b] [v]). Accordingly, County Court did not err in granting the People’s application directing defendant to provide a buccal swab for testing.

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

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


text:
    [65 NE3d 673, 42 NYS3d 644]
    The People of the State of New York, Respondent, v Louis Speaks, Appellant.
    Argued September 8, 2016;
    decided October 20, 2016

      APPEARANCES OF COUNSEL

      Lynn W.L. Fahey, Appellate Advocates, New York City (Nao Terai of counsel), for appellant.

      Eric Gonzalez, Acting District Attorney, Brooklyn {Lori Glachman, Leonard Joblove and Victor Barall of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted, following a jury trial, of two counts of robbery in the first degree and two counts of robbery in the second degree. On appeal, defendant argues that the trial court abused its discretion as a matter of law in permitting a detective to testify about descriptions of the robbers given by one testifying witness and one nontestifying witness. All but one of defendant’s challenges to this testimony are un-preserved for our review because defense counsel only lodged a single-word “hearsay” objection at trial (see People v Gray, 86 NY2d 10, 19 [1995]). As to the preserved hearsay challenge to the testimony about the nontestifying witness’s description, that claim is meritless. The testimony—which was accompanied by a curative instruction explaining that it was not admitted for its truth—consisted of a generic description of the robbers that was cumulative of nonhearsay descriptions provided by other trial witnesses. It was also consistent with the visual depiction of the robbers seen in a surveillance video. Under these circumstances, the trial court did not abuse its discretion in allowing the testimony as background information to explain why the police were able to capture relevant surveillance footage (see People v Tosca, 98 NY2d 660, 661 [2002]).

Defendant also argues that defense counsel’s failure to object to various comments made by the prosecutor during summation deprived him of effective assistance of counsel. A defendant receives effective assistance of counsel “[s]o long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation” (People v Baldi, 54 NY2d 137, 147 [1981]). Here, defendant’s claim of ineffective assistance of counsel ignores the entirety of the representation defendant received at trial and, further, is not supported on this record.

Throughout the course of the trial, defense counsel, demonstrating his familiarity with the relevant law and the particular facts of the case, vigorously advocated for defendant, made proper objections and appropriate motions, competently cross-examined witnesses, and presented a cogent defense case. As to the prosecutor’s arguments in summation, defense counsel objected to the arguments about defendant’s medical condition and then moved for a mistrial on this ground at the end of summation. The other challenged arguments were either fair comment on the evidence, within the bounds of permissible rhetorical argument, or appropriate response to arguments made in defendant’s summation (see People v Ashwal, 39 NY2d 105, 109-110 [1976]). This is not a case where the prosecutor’s comments were so “far afield from acceptable argument” that “there [was] no apparent strategic explanation for defense counsel’s silence,” thereby depriving defendant of meaningful representation (People v Wright, 25 NY3d 769, 780 [2015]). In sum, defendant received effective assistance of counsel.

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

Order affirmed, in a memorandum.


text:
    [63 NE3d 1152, 41 NYS3d 208]
    In the Matter of Diane Mendez, Respondent, v New York City Department of Education et al., Appellants.
    Decided October 25, 2016

      APPEARANCES OF COUNSEL

      Zachary W. Carter, Corporation Counsel, New York City (Emma Grunberg, Richard Bearing and Fay Ng of counsel), for appellants.
    Respondent precluded.
   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, insofar as appealed from annulling the determination to terminate petitioner’s probationary employment, reversed, without costs, so much of the petition as sought to annul that determination dismissed, and certified question answered in the negative. Petitioner did not establish that the termination of her probationary employment “was for a constitutionally impermissible purpose, violative of a statute, or done in bad faith” (Matter of Frasier v Board of Educ. of City School Dist. of City of N.Y., 71 NY2d 763, 765 [1988]).

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


text:
    [63 NE3d 1148, 41 NYS3d 204]
    Raymond Pink et al., Respondents, v Rome Youth Hockey Association, Inc., Appellant, et al., Defendants.
    Argued September 14, 2016;
    decided October 25, 2016

      APPEARANCES OF COUNSEL

      Roemer Wallens Gold & Mineaux LLP, Albany (Matthew J. Kelly and Amanda Davis Twinam of counsel), for appellant.

      Conway & Kirby, PLLC, Latham (.Andrew W. Kirby of counsel), for respondents.

      Pacific Legal Foundation, Sacramento, California (Theodore Hadzi-Antich and Deborah J. La Fetra of counsel), for Pacific Legal Foundation, amicus curiae.

      Powers & Santola, LLP, Albany (Michael J. Hutter of counsel), and Mitchell Proner, New York State Academy of Trial Lawyers, Albany, for New York State Academy of Trial Lawyers, amicus curiae.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be reversed, with costs, defendant Rome Youth Hockey Association, Inc.’s motion for summary judgment dismissing the complaint as against it granted and the certified question answered in the negative.

Defendant Rome Youth Hockey Association (hereinafter defendant) is a nonprofit community sports organization fully operated by volunteers. In November 2006, defendant rented a local arena owned by the City of Rome to host a hockey tournament for 13-year-old players. Approximately 50-75 spectators attended the game between Rome and Whitestown. Both teams belonged to their respective youth hockey associations and both associations were part of USA Hockey, the national governing organization.

During the game, several on-ice fights broke out between the players, who received penalties and in some cases were ejected from the game. The referee also ejected the Whitestown coach for throwing an object onto the ice. The spectators, mostly family members of the players, engaged in yelling and name calling.

The game concluded without any physical altercation in the stands. After the game was over, two female spectators got into a fight in the stands and a melee quickly ensued as several others, including plaintiff Raymond Pink, stepped in to break up the fight. Matthew Ricci, the brother of one of the two female spectators involved in the fight, struck plaintiff causing him to sustain a head injury. Ricci subsequently pleaded guilty to criminal assault. The two female spectators pleaded guilty to disorderly conduct.

Plaintiffs Raymond Pink and Michelle Pink commenced this action against defendant, the Whitestown Youth Hockey Association (WYHA), the City of Rome, Ricci, and others involved in the melee. The complaint alleged, in relevant part, that defendant owed a duty to protect plaintiff from criminal assault. Plaintiff’s verified bill of particulars further alleged that defendant was negligent in failing to enforce the USA Hockey’s “Zero Tolerance” policy. The policy, after noting that assaults occur at hockey games, required on-ice officials to seek to remove spectators from the game for use of obscene or vulgar language or for threatening or using physical violence.

Defendant moved for summary judgment arguing that it did not have a duty to protect plaintiff from a random assault where there was no history of violence or physical confrontation. Supreme Court denied the motion noting that the crux of plaintiffs claim was that the tensions between the spectators essentially put defendant on notice of the need to enforce the Zero Tolerance policy. The court held that by failing to enforce the policy, defendant “may have violated a duty [it] assumed.” The court also held Ricci’s actions did not absolve defendant of liability. Plaintiffs subsequently settled with the City of Rome, Ricci, and several other individual defendants.

The Appellate Division, with one Justice dissenting, modified the judgment on the law and granted summary judgment in favor of WYHA, concluding that it did not owe plaintiff a duty of care since, unlike defendant, WYHA had not leased the arena. The Appellate Division affirmed the judgment as modified (125 AD3d 1376 [2015]). The Court concluded that there were issues of fact as to whether defendant’s duty to plaintiff “included the duty to protect plaintiffs from Ricci’s conduct . . . and, given the hostile environment in the arena before the fight ... [as to] whether [defendant] knew or should have known of the likelihood of the fight” (125 AD3d at 1377 [citations omitted]). The Court ultimately held that “a trier of fact should determine whether [defendant] had a duty to intercede and protect plaintiff” (id. [citations omitted]).

The dissent would have concluded that defendant did not owe a duty to protect plaintiff from Ricci’s assault (id. at 1378 [Lindley, J., dissenting]). The dissent noted that “given the absence of prior fights among spectators at [Rome] youth hockey games, it was not foreseeable that plaintiff would be assaulted by another spectator, and, thus, [defendant] had no duty to protect him from that unanticipated harm” (id. at 1379). The Appellate Division granted defendant’s motion for leave to appeal and certified for our review the question of whether the order denying defendant summary judgment was proper (126 AD3d 1430 [2015]).

“[T]he definition of the existence and scope of an alleged tort-feasor’s duty is usually a legal, policy-laden declaration reserved for Judges” (Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 585 [1994]). With respect to landowners and leaseholders, there is a “duty to control the conduct of third persons on their premises when they have the opportunity to control such persons and are reasonably aware of the need for such control” (D’Amico v Christie, 71 NY2d 76, 85 [1987]). That duty includes “minimiz [ing] foreseeable dangers on their property” (Maheshwari v City of New York, 2 NY3d 288, 294 [2004]), including “foreseeable criminal conduct” (Burgos v Aqueduct Realty Corp., 92 NY2d 544, 548 [1998]).

We have recognized, however, “foreseeability and duty are not identical concepts” (Maheshwari, 2 NY3d at 294). “Foreseeability merely determines the scope of the duty once the duty is determined to exist” (id.). Accordingly, the scope of a duty “is defined by past experience and the ‘likelihood of conduct on the part of third persons . . . which is likely to endanger the safety of the visitor’ ” (id., quoting Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 519 [1980] [citation omitted]), and “is limited to risks of harm that are reasonably foreseeable” (Sanchez v State of New York, 99 NY2d 247, 253 [2002]).

Defendant was entitled to summary judgment. On this record, the criminal assault on plaintiff was not a reasonably foreseeable result of any failure to take preventive measures. While defendant owed a duty to protect spectators from foreseeable criminal conduct, the scope of that duty is defined by the likelihood that the aggressive behavior would lead to a criminal assault. Defendant took measures to address player and spectator conduct. The behavior of the fans, however inappropriate, certainly did not create the risk that failure to eject any specific spectator would result in a criminal assault, particularly since such an assault had never happened before (see Maheshwari, 2 NY3d at 294; Sanchez, 99 NY2d at 252).

Plaintiff argues that, defendant’s failure to enforce the Zero Tolerance policy by ejecting spectators constitutes independent evidence of negligence. The policy provides that “[t]he on-ice Official” will remove spectators using “obscene, racial or vulgar language” from the game. However, the “[v]iolation of a[n] [organization]’s internal rules is not negligence in and of itself” (Sherman v Robinson, 80 NY2d 483, 489 n 3 [1992]), and where an internal policy exceeds “the standard of ordinary care,” it “cannot serve as a basis for imposing liability” (Gilson v Metropolitan Opera, 5 NY3d 574, 577 [2005]). Nor did the policy demonstrate that defendant was on notice of the likelihood of criminal assaults since a “general awareness” of incidents nationwide does not establish foreseeability here (Haire v Bonelli, 107 AD3d 1204, 1206 [3d Dept 2013]). Accordingly, we find it unnecessary to address defendant’s remaining arguments for summary judgment.

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

Order, insofar as appealed from, reversed, with costs, defendant Rome Youth Hockey Association, Inc.’s motion for summary judgment dismissing the complaint as against it granted and certified question answered in the negative, in a memorandum.

       Plaintiff Michelle Pink’s sole cause of action is for loss of consortium. All references to “plaintiff” hereinafter are to plaintiff, Raymond Pink.


text:
    [64 NE3d 274, 41 NYS3d 454]
    Evelyn Rivera, as Administratrix of the Estate of Wilbur Rodriguez, Deceased, Appellant, v Montefiore Medical Center, Respondent.
    Argued September 7, 2016;
    decided October 20, 2016

      APPEARANCES OF COUNSEL

      Sullivan Papain Block McGrath & Cannavo PC., New York City (Brian J. Shoot and Clifford Argintar of counsel), for appellant.

      Shaub Ahmuty Citrin & Spratt, LLP, Lake Success (Christopher Simone and Gerard S. Rath of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

The issue on this appeal is whether the trial court abused its discretion as a matter of law in denying as untimely plaintiff’s motion to preclude the testimony of defendant’s expert on the grounds that the CPLR 3101 (d) disclosure statement was deficient. We hold that it did not.

Decedent entered defendant’s hospital facility with symptoms of pneumonia and died early the next morning after being admitted to an area of the hospital that lacked continuous monitoring of patients’ vital signs. The autopsy report identified the cause of death as bronchopneumonia complicated by diabetes. Plaintiff, decedent’s mother, brought this action.

In preparation for trial, defendant timely served a CPLR 3101 (d) expert disclosure statement on plaintiff. The statement in relevant part informed plaintiff that the expert would testify “on the issue of causation” and “as to the possible causes of the decedent’s injuries and contributing factors.” Plaintiff’s sole objection before trial was that the statement did not provide the dates of the expert’s medical residency, and defendant cured this omission.

At trial, although the hospital treating physician testified that decedent’s death was caused in part by pneumonia, on cross-examination he stated that he believed decedent instead died from acute cardiac arrhythmia. Plaintiff’s expert also testified that decedent’s death was caused in part by pneumonia, but acknowledged that a cardiac event was a possible cause of death on cross-examination. Plaintiff moved to preclude defendant’s expert from giving “any testimony . . . regarding any possible causes of the decedent’s death” on the grounds that the disclosure statement did “not include any reasonable detail whatsoever as to what possible causes” led to decedent’s death. Plaintiff did not seek an adjournment. The trial court denied the application as untimely. Defendant’s expert then testified that he disagreed with plaintiff’s expert and the autopsy report regarding the cause of death, that decedent’s vital signs instead showed no indication of worsening respiration, that decedent’s other health issues increased his risk for cardiac problems, and that the cause of death was sudden, lethal cardiac arrhythmia. In defense counsel’s closing statement, he argued that decedent’s cause of death was “sudden lethal cardiac arrhythmia.”

The jury found defendant liable based on the failure to place decedent in an area of the hospital with continuous monitoring and awarded plaintiff damages. Plaintiff moved under CPLR 4404 (a) for an order striking all testimony regarding cardiac arrhythmia as the cause of death and setting aside the $0 award for conscious pain and suffering, arguing that the expert disclosure statement failed to include the theory that decedent died of cardiac arrhythmia and so the disclosure was deficient. The trial court again denied the motion as “untimely made at the time of trial.” (2012 NY Slip Op 33671[U], *4 [2012].)

The Appellate Division affirmed the order, holding that plaintiff failed to timely object to the lack of specificity in the expert disclosure statement and that plaintiff was not justified in assuming that the defense expert’s testimony would comport with the autopsy report’s conclusion (123 AD3d 424 [1st Dept 2014]). The Appellate Division held that where plaintiff’s own experts acknowledged that sudden cardiac arrhythmia was a possibility based on decedent’s medical history and condition, and where evidence in the record supported this theory, the testimony need not be stricken as an unfair surprise. One Justice dissented and the Appellate Division granted leave to appeal (see CPLR 5602 [b]).

CPLR 3101 (d) (1) (i) requires each party to “identify each person whom the party expects to call as an expert witness at trial and [to] disclose in reasonable detail the subject matter on which each expert is expected to testify, . . . the qualifications of each expert witness and a summary of the grounds for each expert’s opinion.” It was within the trial court’s discretion to deny plaintiff’s motion to preclude (see People v Carroll, 95 NY2d 375, 385 [2000]). Trial courts possess broad discretion in their supervision of expert disclosure under CPLR 3101 (d) (1) (see Bernardis v Town of Islip, 95 AD3d 1050, 1050 [2d Dept 2012]). “A determination regarding whether to preclude a party from introducing the testimony of an expert witness at trial based on the party’s failure to comply with CPLR 3101 (d) (1) (i) is left to the sound discretion of the court” (McGlauflin v Wadhwa, 265 AD2d 534, 534 [2d Dept 1999]; see also Deandino v New York City Tr. Auth., 105 AD3d 801, 803 [2d Dept 2013]; but see Saldivar v I.J. White Corp., 46 AD3d 660, 661 [2d Dept 2007]).

Plaintiff made her motion mid-trial immediately prior to the expert’s testimony. Plaintiff argues that at the time of the expert exchange, she had no reason to object to the disclosure statement because the statement gave no indication that defendant would challenge plaintiff’s theory of decedent’s cause of death. Assuming defendant’s disclosure was deficient, such deficiency was readily apparent; the disclosure identified “causation” as a subject matter but did not provide any indication of a theory or basis for the expert’s opinion. This is not analogous to a situation in which a party’s disclosure was misleading or the trial testimony was inconsistent with the disclosure. Rather, the issue here was insufficiency.

The trial court’s ruling did not endorse the sufficiency of the statement but instead addressed the motion’s timeliness. The lower courts were entitled to determine, based on the facts and circumstances of this particular case, that the time to challenge the statement’s content had passed because the basis of the objection was readily apparent from the face of the disclosure statement and could have been raised—and potentially cured—before trial. Accordingly, there was no abuse of discretion as a matter of law.

Lastly, plaintiff’s claim that the testimony regarding cardiac arrhythmia should have been excluded as speculative must also be rejected because the challenged theory was premised on ample evidence in the record.

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

Order, insofar as appealed from, affirmed, with costs, and certified question answered in the affirmative, in a memorandum.