text:
    In the Matter of Allstate Insurance Company, Respondent, v Nydia Rivera et al., Appellants.
    Submitted March 6, 2009;
    decided April 2, 2009
   Motion by New York State Trial Lawyers’ Association for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Amin Enrique M., Jr., and Another, Children Alleged to be Abandoned. Amin M., Appellant; Leake and Watts Services, Inc., Respondent.
    Submitted February 23, 2009;
    decided April 2, 2009
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]). Motion for poor person relief dismissed as academic.


text:
    Jiovon Anonymous, an Infant, by His Father and Legal Guardian, Thomas Anonymous, et al., Respondents, v City of Rochester et al., Appellants.
    Submitted March 30, 2009;
    decided April 2, 2009
   Motion by New York Civil Liberties Union 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 24 copies filed within seven days.


text:
    Jiovon Anonymous, an Infant, by His Father and Legal Guardian, Thomas Anonymous, et al., Respondents, v City of Rochester et al., Appellants.
    Submitted March 30, 2009;
    decided April 2, 2009
   Motion by New York State Conference of Mayors and Municipal Officials for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Samantha Carroll et al., Appellants, v Nostra Realty Corporation, Respondent. (And a Third-Party Action.)
    Submitted February 9, 2009;
    decided April 2, 2009
   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.

Chief Judge Lippman taking no part.


text:
    In the Matter of Village of Chestnut Ridge et al., Respondents, et al., Petitioners/Plaintiffs, v Town of Ramapo et al., Respondents, and Scenic Development, LLC, Appellant.
    Submitted February 9, 2009;
    decided April 2, 2009
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine an action or proceeding within the meaning of the Constitution and is not an order of the type provided for in CPLR 5602 (a) (2).


text:
    In the Matter of Village of Chestnut Ridge et al., Respondents, et al., Petitioners/Plaintiffs, v Town of Ramapo et al., Appellants, and Scenic Development, LLC, Respondent.
    Submitted February 17, 2009;
    decided April 2, 2009
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine an action or proceeding within the meaning of the Constitution and is not an order of the type provided for in CPLR 5602 (a) (2).


text:
    In the Matter of Clarendon National Insurance Company, Respondent, v Francisco Nunez, Sr., et al., Appellants.
    Submitted March 16, 2009;
    decided April 2, 2009
   Motion by New York State Trial Lawyers’ Association for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Henderson Greaves, Respondent, v Obayashi Corporation et al., Appellants, et al., Defendant. (And a Third-Party Action.)
    Submitted February 23, 2009;
    decided April 2, 2009
   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 Devon Griffin, Appellant, v William D. Walsh, as Onondaga County Court Judge, Respondent.
    Decided April 2, 2009
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that it does not lie (see CPLR 5601).

Judge Pigott taking no part.


text:
    Humphreys & Harding, Inc., Respondent, v Universal Bonding Insurance Company, Defendant and Third-Party Plaintiff-Respondent. Welch Construction Corp. et al., Third-Party Defendants-Appellants.
    Submitted March 9, 2009;
    decided April 2, 2009
   Motion for reargument of motion for leave to appeal denied [see 11 NY3d 920 (2009)].

Chief Judge Lippman taking no part.


text:
    In the Matter of Mehrdad Kahen et al., Respondents, v Tyrone Woutersz et al., Respondents, and Rosemary Toriola, Appellant.
    Submitted February 2, 2009;
    decided April 2, 2009
   Motion for reconsideration of this Court’s December 2, 2008 dismissal order denied [see 11 NY3d 863 (2008)]. Motion for leave to appeal dismissed upon the ground that it does not lie (see CPLR 5602).

Chief Judge Lippman taking no part.


text:
    Lee N. Koehler, Appellant, v The Bank of Bermuda Limited, Respondent.
    Submitted March 30, 2009;
    decided April 2, 2009
   Motion by the Clearing House Association L.L.C. 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.


text:
    The People of the State of New York, Respondent, v Darrell Byrd, Appellant.
    Submitted February 9, 2009;
    decided April 2, 2009
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed Supreme Court’s order denying appellant’s motion to vacate, dismissed upon the ground that such portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York, Respondent, v Rebecca Kaszubinski, Appellant.
    Submitted March 23, 2009;
    decided April 2, 2009
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 denied as unnecessary and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Mark Ochoa, Appellant.
    Submitted March 30, 2009;
    decided April 2, 2009
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York ex rel. Joseph G. Szymaszek, Appellant, v State of New York, Respondent.
    Submitted February 17, 2009;
    decided April 2, 2009
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that relator has been released on postrelease supervision and, therefore, his liberty is no longer restrained to such a degree as to entitle him to the extraordinary writ of habeas corpus (see People ex rel. Wilder v Markley, 26 NY2d 648 [1970]). Motion for leave to appeal dismissed upon the ground that relator has been released on postrelease supervision and, therefore, his liberty is no longer restrained to such a degree as to entitle him to the extraordinary writ of habeas corpus (see People ex rel. Wilder v Markley, 26 NY2d 648 [1970]).


text:
    The People of the State of New York ex rel. Joseph G. Szymaszek, Appellant, v State of New York, Respondent.
    Submitted March 23, 2009;
    decided April 2, 2009
   Motion for relief ancillary to the motion for leave to appeal and appeal filed as of right herein dismissed on the ground that it does not lie.


text:
    Anna Pezhman, Appellant, v City of New York et al., Respondents.
    Submitted February 23, 2009;
    decided April 2, 2009
   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:
    Luis E. Rivera, Sr., Respondent, v Vincent Alaimo et al., Appellants.
    Submitted March 9, 2009;
    decided April 2, 2009
   Motion for reargument of motion for leave to appeal denied [see 12 NY3d 702 (2009)].

Chief Judge Lippman taking no part.


text:
    In the Matter of Shelter Island Association et al., Appellants, v Zoning Board of Appeals of Town of Shelter Island et al., Respondents.
    Submitted February 9, 2009;
    decided April 2, 2009
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed so much of Supreme Court’s order and judgment as denied appellants’ motion to amend the petition, dismissed upon the ground that such portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Michael J. Sirface, Respondent, v County of Erie, Appellant.
    Submitted February 17, 2009;
    decided April 2, 2009
   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 Rosemary Toriola, Appellant, v Supreme Court State of New York Appellate Term 2nd and 11th Judicial Districts et al., Respondents.
    Submitted February 2, 2009;
    decided April 2, 2009
   Motion for reconsideration of this Court’s December 2, 2008 dismissal order denied [see 11 NY3d 866 (2008)]. Motion for leave to appeal denied.

Chief Judge Lippman taking no part.


text:
    [907 NE2d 690, 879 NYS2d 812]
    M & B Joint Venture, Inc., Respondent, v Laurus Master Fund, Ltd., et al., Appellants, et al., Defendants.
    Argued February 18, 2009;
    decided April 7, 2009

      APPEARANCES OF COUNSEL

      Brune & Richard LLP, New York City (Hillary Richard, Dorothy Mitchell and Laurie Edelstein of counsel), for appellants.

      Salon Marrow Dyckman Newman & Broudy LLP, New York City (Richard P. Romeo of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs to defendants Laurus Master Fund, Ltd. and Laurus Master Fund, Ltd., as agent, and 14-16 East 67th Street Holding Corp., by granting their motions to dismiss the complaint as against them in the entirety and to cancel the notice of pendency and, as so modified, affirmed. The certified question should be answered in the negative.

In February 2004, Penthouse International, Inc., the owner of a New York City townhouse, entered into a series of transactions with defendant Laurus Master Fund, Ltd., under which Laurus agreed to loan Penthouse $24 million in exchange for a mortgage on the property. Immediately after closing, Penthouse transferred ownership of the property to EH. Realty Associates, LLC, a holding company in which Penthouse held a 99% interest. Penthouse subsequently defaulted on the loan and Laurus sought foreclosure. The property was then conveyed to defendant 14-16 East 67th Street Holding Corp., an entity wholly owned by Laurus. In October 2006, plaintiff M & B Joint Venture, Inc. commenced this action claiming, among other things, that it possessed an equitable lien on the property. Plaintiff also filed a notice of pendency.

In its complaint, plaintiff alleges that it loaned $490,000 to EH. Realty in February 2004 with the understanding that it would receive a security interest in the premises. Plaintiff asserts in its pleadings that when it transferred the funds to Penthouse’s escrow agent, plaintiff advised him in a letter that the sum was not to be released until it “received a fully executed promissory note and second priority mortgage secured by the Property.” The complaint also alleges that the escrow agent released the funds without obtaining a promissory note or mortgage.

Lauras and 14-16 East moved to cancel the notice of pendency and separately moved under CPLR 3211 (a) (7) to dismiss the equitable lien claim, together with a cause of action for unjust enrichment. In opposition, plaintiff submitted a number of evidentiary documents, including the February 2004 correspondence referenced in the complaint.

Supreme Court denied both motions. The Appellate Division, with two Justices dissenting in part, modified, by granting Lauras’ and 14-16 East’s motion to dismiss the unjust enrichment claim, but otherwise affirmed (49 AD3d 258 [2008]). The dissent would have dismissed the equitable lien claim and cancelled the notice of pendency.

New York law allows the imposition of an equitable lien if there is an express or implied agreement “that there shall be a lien on specific property” (Teichman v Community Hosp. of W. Suffolk, 87 NY2d 514, 520 [1996] [internal quotation marks and citation omitted]). Such an agreement must evince a sufficiently clear intent that the property is to be “held, given or transferred as security for the obligation” (id. [internal quotation marks and citation omitted]). A party’s “mere expectation, however sincere, is insufficient to establish an equitable lien” (Scivoletti v Marsala, 61 NY2d 806, 809 [1984]).

Here, plaintiff alleges that it loaned $490,000 to EH. Realty in exchange for a security interest in the property and that a letter contemporaneous with the transaction confirmed the arrangement. But the February 2004 letter plaintiff submitted in opposition to the motion to dismiss plainly states that any mortgage on the property was to be in favor of 21st Century Technologies, Inc., not plaintiff. Additional documentation provided by plaintiff, including an unexecuted mortgage agreement, similarly demonstrates that any purported security interest related to 21st Century alone. Furthermore, plaintiff has not submitted any proof that it is an assignee of, or otherwise has an ownership interest in, the alleged lien. Because plaintiffs own evidentiary submissions “conclusively establish that [it] has no cause of action,” dismissal of the complaint as to Lauras and 14-16 East is appropriate (Rovello v Orofino Realty Co., 40 NY2d 633, 636 [1976]; see also Leon v Martinez, 84 NY2d 83, 88 [1994]).

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

Order modified, etc.


text:
    In the Matter of Prince T. Alarape, Appellant, v New York City Department of Housing Preservation and Development et al., Respondents.
    Submitted February 23, 2009;
    decided April 7, 2009
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.

Chief Judge Lippman taking no part.


text:
    In the Matter of Thomas Bell, Appellant, v Richard A. Brown, Respondent.
    Decided April 7, 2009
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601).


text:
    In the Matter of Winford Kent Bishop, an Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Decided April 7, 2009
   Appeal, insofar as taken from the Appellate Division order denying reargument or, in the alternative, leave to appeal to the Court of Appeals, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution; appeal otherwise dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.

Chief Judge Lippman taking no part.


text:
    Rachel Djeddah, Appellant, v Richard Djeddah, Respondent.
    Submitted February 9, 2009;
    decided April 7, 2009
   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 East Fishkill Home & Land Company, LLC, et al., Appellants, v Town of East Fishkill et al., Respondents.
    Submitted March 16, 2009;
    decided April 7, 2009
   Motion by Dutchess County for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    Glacial Aggregates LLC, Appellant, v Town of Yorkshire, Respondent.
    Submitted February 23, 2009;
    decided April 7, 2009
   Motion for leave to appeal denied as unnecessary.


text:
    Glacial Aggregates LLC, Appellant, v Town of Yorkshire, Respondent.
    Submitted March 30, 2009;
    decided April 7, 2009
   Motion by New York Construction Materials Association, Inc. for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed, and for leave to file a brief amicus curiae on the appeal herein granted, three copies of the brief to be served and an original and 24 copies filed within 30 days.


text:
    Simpson Gray, Appellant, v City of New York et al., Respondents.
    Submitted February 23, 2009;
    decided April 7, 2009
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed Supreme Court’s grant of the motion to amend the answer, dismissed upon the ground that such part of the order does not finally determine the action within the meaning of the Constitution (see Best v Yutaka, 90 NY2d 833, 834 n [1997]; Muro v Bay Ready Mix & Supplies, 97 NY2d 625 [2001]); motion for leave to appeal otherwise denied.


text:
    George Kralik et al., Respondents, v 239 East 79th Street Owners Corp., Appellant.
    Submitted February 2, 2009;
    decided April 7, 2009
   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:
    George Kralik et al., Respondents, v 239 East 79th Street Owners Corp., Appellant.
    Submitted February 17, 2009;
    decided April 7, 2009
   Motion by Council of New York Cooperatives and Condominiums for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    Leeward Isles Resorts, Limited, Respondent, v Charles C. Hickox, Appellant.
    Submitted March 9, 2009;
    decided April 7, 2009
   Motion for reargument of motion for leave to appeal denied [see 11 NY3d 914 (2009)]. Movant was not precluded by CPLR 5511 from seeking leave to appeal from the final April 2008 Supreme Court judgment to bring up for review the prior nonfinal Appellate Division order by which he is aggrieved. That Supreme Court’s final judgment was entered without opposition did not here constitute a waiver of the right to move for leave to appeal from that paper under CPLR 5602 (a) (1) (ii) (see Paramount Communications v Gibraltar Cas. Co., 90 NY2d 507, 513 [1997]).

Chief Judge Lippman taking no part.


text:
    Ronald I. LeVine, Respondent, v Catskill Regional Off-Track Betting Corporation, Appellant.
    Submitted February 9, 2009;
    decided April 7, 2009
   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:
    Grace Ruth Lucido, as Administratrix of the Estate of Thomas Lucido, Deceased, Respondent, v Mary Mancuso, Defendant, and Greenburgh Partnership No. 26 et al., Defendants and Third-Party Plaintiffs-Respondents. Delcon Construction Corporation, Third-Party Defendant-Appellant.
    Decided April 7, 2009
   Appeal withdrawn pursuant to stipulation of the parties.


text:
    Melissa B. O'Halloran, Respondent, v John V. O'Halloran, Appellant.
    Decided April 7, 2009
   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:
    Mynor Orellana, Respondent, v Dutcher Avenue Builders Inc., Respondent, and Ellen Meagher et al., Appellants. (And a Third-Party Action.)
    Submitted March 2, 2009;
    decided April 7, 2009
   Motion for leave to appeal, insofar as made by Christopher Meagher, dismissed upon the ground that he is not a party aggrieved as the complaint has been dismissed against him; motion for leave to appeal, insofar as made by Ellen Meagher, dismissed upon the ground that as to her 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 Carl Johnson, Appellant.
    Submitted February 9, 2009;
    decided April 7, 2009
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]). Motion for poor person relief dismissed as academic.


text:
    In the Matter of Tayseer Razik et al., Appellants, v New York State Department of State Division of Licensing Services, Respondent.
    Submitted March 26, 2009;
    decided April 7, 2009
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    Nicole Paige Vereczkey, Respondent, v Jamshid Sheik et al., Defendants, Harbor Plumbing and Heating Supply, LLC, et al., Respondents, and Rheem Manufacturing Company et al., Appellants. (And a Third-Party Action.)
    Submitted February 2, 2009;
    decided April 7, 2009
   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:
    [908 NE2d 884, 880 NYS2d 894]
    The People of the State of New York, Respondent, v Juan Carlos Aleman, Appellant.
    Argued April 1, 2009;
    decided April 30, 2009
    APPEARANCES OF COUNSEL

      Office of the Appellate Defender, New York City (Richard M. Greenberg and Christina Graves of counsel), for appellant.

      Robert M. Morgenthau, District Attorney, New York City (Alice Wiseman and Hilary Hassler of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the case remitted for a new trial.

In response to a note from the deliberating jury stating that it was “hopelessly deadlocked” and that some jurors were inclined to acquit because defendant had spent some time in jail and deserved another chance, the trial court gave a lengthy, rambling instruction that chided the jury for not “following the rules” and implied that certain jurors had violated their promise that they would comply with the court’s instructions on the law. The court then adjourned deliberations and sent the jury home “to figure out whether, in your own [conscience], you are willing to follow the rules.”

The court did not, however, respond to the jury’s statement that it was deadlocked. By failing to appropriately address the possible deadlock, the trial court created a significant risk that jurors would interpret his remonstrations about “following the rules” as a direction that the jury must reach a verdict at all costs otherwise it would be breaking the rules. These repeated, strident statements by the court were not balanced by an instruction that jurors must not surrender their conscientiously held beliefs, as recommended in the pattern deadlock charge appearing in the Criminal Jury Instructions (see CJI2d[NY] Deadlock Charge).

Our holding here should not be interpreted as suggesting that trial courts can do nothing more than parrot the language in the CJI deadlock charge. We appreciate that responses to jury notes must be tailored to the circumstances at hand, as was the case here where there was a serious misconception by some jurors as to what were proper considerations in evaluating the evidence. But, the trial court having determined that a supplemental instruction was necessary, we cannot condone its failure to issue an appropriate and balanced deadlock instruction that, in tenor and substance, conveyed the principles reflected in the pattern charge, supplemented by a focused response to the other issues raised in the note (see People v Aponte, 2 NY3d 304 [2004]).

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

Order reversed and a new trial ordered, in a memorandum.


text:
    In the Matter of Allstate Insurance Company, Respondent, v Nydia Rivera et al., Appellants.
    Submitted April 20, 2009;
    decided April 30, 2009
   Motion by New York Insurance 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:
    Herbert Altman et al., Appellants, v New York Board of Trade, Inc., Respondent, et al., Defendant.
    Submitted March 9, 2009;
    decided April 30, 2009
   Motion for reargument of motion for leave to appeal denied [see 11 NY3d 912 (2009)].

Chief Judge Lippman taking no part.


text:
    Denise Bagot, Respondent, v Kulbir Kaur Singh et al., Appellants.
    Submitted March 2, 2009;
    decided April 30, 2009
   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 Isaias Bermudez, Appellant, v Brian Fischer, as Commissioner of Correctional Services, Respondent.
    Submitted March 9, 2009;
    decided April 30, 2009
   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 Elizabeth Amanda T. and Another, Children Alleged to be Permanently Neglected. Helene Lisa H., Appellant; Graham-Windham Services to Families and Children, Respondent.
    Submitted February 2, 2009;
    decided April 30, 2009
   Motion for reargument of motion for leave to appeal denied [see 11 NY3d 714 (2008)].

Chief Judge Lippman taking no part.


text:
    In the Matter of Daniel W. Grace, Respondent, v Eleanor B. Grace, Appellant. In the Matter of Eleanor B. Grace, Respondent, v Daniel W. Grace, Appellant.
    Submitted March 9, 2009;
    decided April 30, 2009
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine an action or proceeding within the meaning of the Constitution.


text:
    Edwin Johnny Locke, Respondent, v Sikamdar Ali Buksh et al., Appellants.
    Submitted March 9, 2009;
    decided April 30, 2009
   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, Appellant, v Miguel Alemany, Respondent.
    Submitted April 20, 2009;
    decided April 30, 2009
   Motion for poor person relief granted.

Chief Judge Lippman taking no part.


text:
    The People of the State of New York, Respondent, v Gregory Allen, Appellant.
    Submitted April 13, 2009;
    decided April 30, 2009
   Motion for assignment of counsel granted and Steven Banks, Esq., the Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Michael Figueroa, Appellant.
    Submitted April 27, 2009;
    decided April 30, 2009
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Maico Lopez-Jimenez, Appellant.
    Submitted April 20, 2009;
    decided April 30, 2009
   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 Jermar McDaniel, Appellant.
    Submitted April 6, 2009;
    decided April 30, 2009
   Motion for assignment of counsel granted and Steven Banks, Esq., the Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Anthony Ortiz, Appellant.
    Submitted April 13, 2009;
    decided April 30, 2009
   Motion for assignment of counsel granted and Steven Banks, Esq., the Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.

Chief Judge Lippman taking no part.


text:
    The People of the State of New York, Respondent, v Marcellus Pierce, Appellant.
    Submitted April 20, 2009;
    decided April 30, 2009
   Motion for assignment of counsel granted and David C. Schopp, Esq., the Legal Aid Bureau of Buffalo, Inc., 237 Main Street, Suite 1602, Buffalo, New York 14203 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Appellant, v Everton D. Simms, Respondent.
    Submitted April 6, 2009;
    decided April 30, 2009
   Motion for assignment of counsel granted and Lynn W.L. Fahey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the respondent on the appeal herein.


text:
    The People of the State of New York, Respondent, v Darrell Williams, Appellant.
    Submitted April 27, 2009;
    decided April 30, 2009
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Desirie Wilson, Appellant.
    Submitted April 13, 2009;
    decided April 30, 2009
   Motion for assignment of counsel denied without prejudice to renewal upon submissions showing current indigency (see CPLR 1101).

Chief Judge Lippman taking no part.


text:
    The People of the State of New York ex rel. Walter J. Roache, Appellant, v George B. Alexander, as Chair of the Division of Parole, et al., Respondents.
    Submitted March 23, 2009;
    decided April 30, 2009
   Motion for reargument denied [see 11 NY3d 905 (2009)].

Chief Judge Lippman taking no part.


text:
    In the Matter of Abdullah Y. Salahuddin, Appellant, v Donald Selsky, as Director of Special Housing/Inmate Disciplinary Programs, Respondent.
    Submitted March 9, 2009;
    decided April 30, 2009
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Injah Tafari, Appellant, v Donald Selsky, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
    Submitted April 9, 2009;
    decided April 30, 2009
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Michael Yovino, Appellant, v New York City Civil Service Commission, Respondent.
    Submitted March 16, 2009;
    decided April 30, 2009
   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:
    [908 NE2d 885, 880 NYS2d 895]
    The People of the State of New York, Respondent, v Dale F. Leeson, Appellant.
    Argued April 1, 2009;
    decided May 5, 2009

      APPEARANCES OF COUNSEL

      John E. Tyo, Shortsville, for appellant.

      Dale Leeson, appellant pro se.

      R. Michael Tantillo, District Attorney, Canandaigua (Jeffrey L. Taylor of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. Defendant Dale F. Leeson was indicted for committing sex crimes on various occasions from mid-August through late October 2003 in Ontario County against a 12-year-old female victim. Defendant, who was 40 years old at the time, was a longtime friend of the victim’s family. The victim’s mother brought the matters leading to defendant’s indictment to the attention of the Ontario County Sheriffs Office on or about October 21, 2003.

Beginning in August 2003, defendant spent a lot of time at the victim’s home in Ontario County, remodeling a bathroom and generally lending a hand with chores. The victim’s mother resided there with the 12-year-old victim, who was enrolled in special education classes during the regular school year, and her 13-year-old brother. Defendant never asked the victim’s mother for any money, telling her that he was helping out “as a favor because [she] needed someone around the house.” Defendant lavished gifts on the victim, including games and clothing and, in particular, panties; when the victim wanted her belly button pierced, defendant paid for the piercing and a ring; he took the victim to the New York State Fair, accompanied by his brother and sister-in-law.

During the summer of 2003, the victim frequently played at her house with defendant’s daughter, who was about the same age. Defendant would drive his daughter to her mother’s or grandmother’s house in Wayne County in the late afternoon after these “play dates.” The victim either asked or was invited to go along on these trips, which often included stops on the way to Wayne County for ice cream and fast food or bowling. The victim claimed that on the return trips to her home in the evening—after defendant had dropped off his daughter—he would pull the vehicle he was driving (usually a white Toyota pickup truck) off onto the side of the road near her house, douse its engine and lights, and engage in sexual contact with her. According to the victim, defendant kept panties in the pickup truck’s glove compartment, and sometimes photographed her in a provocative position wearing this underwear during these sexual encounters. No pictures fitting this description were found in two searches of the pickup truck (the first one, warrantless) and a search of defendant’s residence.

Twice in late August or early September 2003, defendant took the victim and her brother to Penn Yan in neighboring Yates County, ostensibly to clean a two-story building with a vacant apartment on the ground floor and an office area on the second floor. Defendant cast these trips as an opportunity for the children to earn pocket money. He directed the victim’s brother to steam clean the floor in the downstairs apartment on both occasions, although the two trips to Penn Yan were only about a week apart. Defendant then disappeared with the victim upstairs, and locked both the outside and inside doors to the second floor office area, which prevented her brother from entering unannounced. According to the victim, when she was with defendant, he showed her pictures of a sexual nature in magazines (apparently Playboy magazine), and engaged in sexual contact with her. Both times, the victim’s brother, after finishing his work downstairs, went upstairs to use the bathroom and to check on his sister. Both times, the victim’s brother was forced to wait a few minutes after knocking on the locked door before defendant admitted him into the office area.

The victim’s brother expressed misgivings to his mother about what might have been happening between his sister and defendant in the Penn Yan building behind locked doors. She vowed to question the victim, and “told [the victim’s brother] just to try to keep quiet about it and talk to [the victim] and see if [he could] get it out of her.” At some point in the fall of 2003, the victim’s mother observed defendant and the victim lying together on the victim’s bed. The victim’s blouse was pulled up and defendant was kissing her stomach. When the victim’s mother asked defendant what he was doing, he replied that “they were just sitting there talking and he was trying to put [the victim] to sleep.” Other times, the victim’s mother observed her daughter sitting on defendant’s lap or lying down with her head on his lap. Defendant called the victim “his special little girl.”

According to the victim, defendant told her “[a] lot” that he loved her and wanted to marry her; he warned her that if she told anyone what happened when they were alone, “he would go to jail.” Although “[u]pset” by defendant’s sexual advances, the victim did not say anything to anyone until questioned by law enforcement authorities. Defendant has adamantly denied any sexual contact with the victim.

After the completion of a jury trial in May 2005, defendant was convicted of two counts of sodomy in the second degree, each occurring approximately in mid-August 2003; one count of sexual abuse in the second degree, occurring approximately in mid-August 2003; and one count of endangering the welfare of a child, taking place roughly from mid-August to late October 2003. He was sentenced to an aggregate prison term of 4⅔ to 14 years. The Appellate Division subsequently affirmed, with two Justices dissenting (48 AD3d 1294 [2008]), and a Judge of this Court granted defendant leave to appeal (10 NY3d 961 [2008]). We now affirm.

Defendant complains about the admission of the testimony that he committed uncharged acts of sodomy and sexual abuse against the victim in Yates County. Defendant emphasizes that four witnesses—the victim, her mother, her brother and the owner of the Penn Yan building, who testified that he engaged defendant to “redo[ ] the apartment downstairs”—were allowed to give evidence on this score.

This testimony did not deprive defendant of a fair trial. “Evidence of a defendant’s prior bad acts may be admissible when it is relevant to a material issue in the case other than defendant’s criminal propensity . . . Where there is a proper nonpropensity purpose, the decision whether to admit [such] evidence . . . rests upon the trial court’s discretionary balancing of probative value and unfair prejudice” (People v Dorm, 12 NY3d 16, 19 [2009] [citations omitted]). Here, as in Dorm, the uncharged acts involved the very same victim as the charged acts. In addition, the uncharged acts were claimed to have occurred in late August or early September 2003—during the very same time period as the crimes that defendant was accused of committing were alleged to have happened. As a result, the testimony relating to the two visits to Penn Yan “provided necessary background information on the nature of the relationship” between defendant and the victim, and “placed the charged conduct in context” (id.). In short, this testimony was relevant for a purpose other than defendant’s criminal propensity, and its admission by the trial court was not an abuse of discretion.

Finally, even assuming that the initial, warrantless search of defendant’s pickup truck was unlawful, the error was harmless. The only physical evidence recovered during this search, confined to the glove compartment, was panties. The testimony of the victim and her mother independently established that the victim was often alone with defendant in the pickup truck, and that he bought her panties. There is no “ ‘reasonable possibility that the . . . [error] might have contributed to the conviction’ ” (People v Crimmins, 36 NY2d 230, 241 [1975], quoting Fahy v Connecticut, 375 US 85, 86 [1963]).

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

Order affirmed in a memorandum.


text:
    Amazon.com LLC et al., Appellants, v New York State Department of Taxation and Finance et al., Respondents.
    Decided May 5, 2009
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, First Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).


text:
    In the Matter of Anonymous, an Applicant for Admission to the Bar, Appellant.
    Submitted March 30, 2009;
    decided May 5, 2009
   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:
    Barklee 94 LLC, Appellant, v Jane O'Keefe, Respondent.
    Decided May 5, 2009
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Cassidy Sue R. Administration for Children’s Services et al., Respondents; Manuel (Emmanuel) R., Appellant, et al., Respondent.
    Submitted March 9, 2009;
    decided May 5, 2009
   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:
    Combined Ventures, LLC, Respondent, v Fiske House Apt. Corp. et al., Defendants, and Karen V.M. Smith, Appellant.
    Submitted March 9, 2009;
    decided May 5, 2009
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.

Judge Jones taking no part.


text:
    In the Matter of Danny Echevarria, Appellant, v Patricia D. Marks, Monroe County Court Judge, Respondent.
    Submitted February 23, 2009;
    decided May 5, 2009
   Motion for leave to appeal granted. Motion for a stay denied as unnecessary upon the ground that respondent has represented that she will not move forward with appellant’s case pending disposition of this appeal.


text:
    First American Commercial Bancorp, Inc., Appellant, v Saatchi & Saatchi Rowland, Inc. (Formerly Saatchi & Saatchi Business Communications, Inc.), et al., Respondents.
    Submitted February 17, 2009;
    decided May 5, 2009
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as dismissed the complaint as against Vanteon Corporation and CB Richard Ellis, denied; motion for leave to appeal otherwise dismissed upon the ground that the remainder of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Woodrow Flemming, Appellant, v Frank Rizzo et al., Respondents.
    Submitted March 2, 2009;
    decided May 5, 2009
   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:
    Robert Gassman et al., Appellants, v Metropolitan Life Insurance Company et al., Respondents, et al., Defendants. (And a Third-Party Action.)
    Submitted March 30, 2009;
    decided May 5, 2009
   Motion, insofar as it seeks leave to appeal as against defendant The United States Life Insurance Company in the City of New York, denied; motion, insofar as it seeks leave to appeal as against other defendants, dismissed upon the ground that as to said defendants, the Appellate Division order does not finally determine the action within the meaning of the Constitution.


text:
    Kevin Glassman, Respondent, v Pro Health Ambulatory Surgery Center, Inc., et al., Appellants.
    Submitted February 23, 2009;
    decided May 5, 2009
   Motion by New York State Association of Ambulatory Surgery Centers, Inc. for leave to file a memorandum of law amicus curiae on the motion for leave to appeal herein granted and the memorandum of law is accepted as filed.


text:
    Bernadette Gotay, Respondent, v David Breitbart et al., Defendants, and Michael Handwerker et al., Appellants.
    Submitted March 30, 2009;
    decided May 5, 2009
   Motions to vacate this Court’s March 11, 2009 dismissal order granted [see 12 NY3d 780 (2009)].

Chief Judge Lippman taking no part.


text:
    Heritage Realty Advisors, LLC, et al., Appellants, v Mohegan Hill Development, LLC, et al., Respondents, et al., Defendant.
    Submitted February 23, 2009;
    decided May 5, 2009
   Motion for leave to appeal as against all defendants except Tarragon Corporation, as to whom the motion was withdrawn, denied.


text:
    Overstock.com, Inc., Appellant, v New York State Department of Taxation and Finance et al., Respondents.
    Decided May 5, 2009
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, First Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).


text:
    In the Matter of Pamela I.S., Respondent, v Edmund O.E., Appellant.
    Submitted March 30, 2009;
    decided May 5, 2009
   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:
    Dahi Raheim et al., Appellants, v 8835 23rd Avenue Tenants Corp. et al., Respondents.
    Submitted March 30, 2009;
    decided May 5, 2009
   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 R. Children. Administration for Children’s Services, Respondent; Ishwardat R., Appellant, et al., Respondents.
    Submitted March 16, 2009;
    decided May 5, 2009
   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 Stop the Madrassa Community Coalition et al., Appellants, v New York City Department of Education et al., Respondents.
    Submitted March 30, 2009;
    decided May 5, 2009
   Motion for leave to appeal dismissed upon the ground that it does not lie (see NY Const, art VI, § 3 [b]; CPLR 5602).


text:
    Delvin Sweeney, Respondent, v Bruckner Plaza Associates et al., Appellants, et al., Defendants.
    Decided May 5, 2009
   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 Walter K. Telfer, Appellant, v Nicole L. Pickard, Respondent.
    Submitted March 2, 2009;
    decided May 5, 2009
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed the dismissal of the enforcement application, dismissed upon the ground that such part of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for poor person relief dismissed as academic.


text:
    [908 NE2d 904, 880 NYS2d 914]
    In the Matter of Lavountae A. and Others, Infants. Monroe County Department of Human Services, Respondent; Laticia A., Appellant.
    Decided May 7, 2009

      APPEARANCES OF COUNSEL

      Timothy P. Donaher, Public Defender, Rochester (David M. Abbatoy, Jr., of counsel), for appellant.

      Daniel M. DeLaus, Jr., County Attorney, Rochester (Paul N. Humphrey of counsel), for respondent.

      Susan B. Marris, Manlius, Law Guardian.

   OPINION OF THE COURT

Memorandum.

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

Family Court entered a determination of neglect based, in part, on a finding that respondent mother had a drug problem that necessitated treatment and that placed her children in imminent risk of harm. The court further observed that she had failed to follow through with two drug treatment programs despite her previous acknowledgment of a drug problem and her repeated promises to comply with treatment directives. Since the Appellate Division affirmed the neglect determination, we may disturb it only if it is not supported by sufficient proof in the record. Because we cannot say that there is no valid line of reasoning that could lead a rational factfinder to the decision reached in this case, we affirm.

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

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, without costs, in a memorandum.


text:
    [910 NE2d 419, 882 NYS2d 671]
    In the Matter of Elvin G., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Argued March 25, 2009;
    decided May 7, 2009
    APPEARANCES OF COUNSEL

      Legal Aid Society, New York City (Raymond E. Rogers, Steven Banks and Tamara A. Steckler of counsel), for appellant.

      Michael A. Cardozo, Corporation Counsel, New York City (Edward EX. Hart and Leonard Koerner of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Under CPL 710.60, applicable to juvenile delinquency proceedings pursuant to Family Court Act § 330.2 (1), a suppression hearing is required if the accused “raise[s] a factual dispute on a material point which must be resolved before the court can decide the legal issue of whether evidence was obtained in a constitutionally permissible manner” (People v Burton, 6 NY3d 584, 587 [2006] [internal quotation marks and citation omitted]). The sufficiency of the allegations “should be (1) evaluated by the face of the pleadings, (2) assessed in conjunction with the context of the motion and (3) evaluated by defendant’s access to information” (People v Bryant, 8 NY3d 530, 533 [2007]; see also People v Mendoza, 82 NY2d 415, 426 [1993]).

In this case, according to Elvin G., the school dean ordered all of the students in the classroom to stand and empty their pockets in an attempt to discover a cell phone or electronic device that had disrupted the class. In contrast, the presentment agency offered a different factual scenario, claiming that the dean had asked the students to put their book bags on their desks and Elvin had voluntarily removed a knife from his pocket. If the dean recovered the knife because it was in “plain view,” as argued by the presentment agency, the constitutional question becomes academic. Unlike the dissent, in applying the Mendoza factors, we conclude that the record was insufficiently developed to properly determine whether a search occurred and, if so, whether it was reasonable as a matter of law under the circumstances of this case (see New Jersey v T. L. O., 469 US 325 [1985]; Vernonia School Dist. 47J v Acton, 515 US 646 [1995]; Matter of Gregory M., 82 NY2d 588 [1993]).

Pigott, J. (dissenting). Because, in my view, Family Court properly denied respondent’s motion for a suppression hearing, I respectfully dissent.

It is clear from the facts presented (and even those presented by respondent), that the dean was justified in directing the students to empty their pockets. There was a disruption in the classroom by a noise from a cell phone or other electronic device and it was evident that one of the students was violating school rules. In such a situation, the scope of the search here was reasonably related to the objectives of the search (i.e., finding the offending article) and was not excessively intrusive.

As a general rule, a court may refuse to conduct a suppression hearing if respondent’s allegations do not “lay out a factual scenario which, if credited, would have warranted suppression” (People v Mendoza, 82 NY2d 415, 432 [1993]). Here, the dean’s demand that all the students empty their pockets constituted a search (see Matter of Bernard G., 247 AD2d 91, 94 [1st Dept 1998] [officer’s direction that juvenile empty his pockets after pat-down search revealed no weapon “was the equivalent of searching his pockets”]; People v Lipscomb, 179 AD2d 1043 [4th Dept 1992]). But that is only the beginning of the inquiry.

In New Jersey v T. L. O. (469 US 325 [1985]), the United States Supreme Court concluded that the Fourth Amendment does indeed apply to searches of students by school authorities (id. at 333-337). After reaching that conclusion, the Court then observed that whether a search is “reasonable” under the Fourth Amendment “depends on the context within which [the] search takes place.” The standard to be applied “requires ‘balancing the need to search against the invasion which the search entails’ ” (id. at 337 [citation omitted]). This, in turn, requires the balancing of “the individual’s legitimate expectations of privacy and personal security” with “the government’s need for effective methods to deal with breaches of public order” (id.). The Court then crafted the following rule:

“[T]he legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search. Determining the reasonableness of any search involves a twofold inquiry: first, one must consider ‘whether the . . . action was justified at its inception,’ Terry v. Ohio, 392 U. S., at 20; second, one must determine whether the search as actually conducted ‘was reasonably related in scope to the circumstances which justified the interference in the first place’ [Terry, 392 US at 20]. Under ordinary circumstances, a search of a student by a teacher or school official will be ‘justified at its inception’ when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and the sex of the student and the nature of the infraction” (T. L. O., 469 US at 341-342 [emphasis supplied]).

Significantly, the Court declined to address whether individualized suspicion was an essential element of the reasonableness standard relative to school searches, and observed that, with regard to other scenarios, it had held that although “some quantum of individualized suspicion is usually a prerequisite to a constitutional search or seizure, . . . the Fourth Amendment imposes no irreducible requirement of such suspicion” (id. at 342 n 8 [citations omitted]). That fact was not lost on this Court in Matter of Gregory M. (82 NY2d 588 [1993]), where this Court stated that “[t]here may be circumstances in which, because the privacy interests involved in the case are minimal and are overborne by the governmental interests in jeopardy if a higher standard were enforced, a search may be reasonable despite the absence of [individualized] suspicion” (id. at 593).

To be sure, there are circumstances where the conduct of the school officials can be deemed overly intrusive (see Beard v Whitmore Lake School Dist., 402 F3d 598 [6th Cir 2005] [strip search of male and female students to recover money stolen from a locker overly intrusive and violative of Fourth Amendment]; Thomas ex rel. Thomas v Roberts, 323 F3d 950 [11th Cir 2003] [mass strip search of students to recover stolen money unreasonable]). However, such was not the case here. School officials had a legitimate interest in ending the disruption of the classroom and the students privacy rights were not so invaded by the request that they empty their pockets that respondent’s knife should have been suppressed. There is something to be said for affording school administrators some leeway in ensuring that school order is maintained for the benefit of the non-disruptive students.

As a result, in my view, Family Court properly denied respondent’s motion for a suppression hearing, and therefore I would affirm the order of the Appellate Division.

Judges Ciparick, Graffeo, Read, Smith and Jones concur in memorandum; Judge Pigott dissents and votes to affirm in an opinion; Chief Judge Lippman taking no part.

Order reversed, etc.

      . In T. L. O., the school student had been caught smoking in a school bathroom and an assistant vice principal searched the student’s purse looking for cigarettes and found marihuana rolling papers, a pipe and other incriminating evidence that could lead one to believe that she was dealing drugs in the school.

      . In Gregory M., this Court, in applying the balancing test set forth in T. L. O., found to be proper a security officer’s search of a student’s book bag after the officer heard a metallic “thud” when the student placed the bag on a shelf. The officer ran his fingers outside the surface of the bag and detected the outline of a gun. The bag was taken to the dean’s office where a search was conducted, uncovering the gun.


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    In the Matter of Janet Arnold et al., Respondents, v Erie County Medical Center Corporation et al., Respondents, and County of Erie, Appellant.
    Submitted March 23, 2009;
    decided May 7, 2009
   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:
    Buffalo Crushed Stone, Inc., Appellant, v Town of Cheektowaga, Respondent.
    Submitted May 4, 2009;
    decided May 7, 2009
   Motion by New York State Construction Materials Association, Inc. for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and 24 copies filed within seven days.


text:
    In the Matter of Mary E. Carriero et al., Appellants, v Town Board of the Town of Stillwater et al., Respondents.
    Submitted March 23, 2009;
    decided May 7, 2009
   Motion for leave to appeal, insofar as made by Mary E. Carnero and Olympia D’Amico, dismissed upon the ground that it does not lie (see CPLR 5602, 5611). As to them, the February 13, 2009 judgment of Supreme Court did not dispose of any issues beyond those resolved by the June 14, 2007 Appellate Division order, which was final as to them and from which they previously sought leave to appeal in a motion the Court of Appeals denied on November 20, 2007 (9 NY3d 980 [2007]). Motion for leave to appeal otherwise dismissed upon the ground that the remaining movants are not parties aggrieved (see CPLR 5511).


text:
    In the Matter of the Arbitration between Central Mutual Insurance Company, Respondent, and Beverly Bemiss, Appellant.
    Submitted May 4, 2009;
    decided May 7, 2009
   Motion by Defense Association of New York, Inc. for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    In the Matter of Damien P.C., Respondent, v Jennifer H.S., Appellant.
    Decided May 7, 2009
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Warren S. Dank, Appellant, v Sears Holding Management Corporation et al., Respondents.
    Submitted March 16, 2009;
    decided May 7, 2009
   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:
    Naima Dayan, Appellant, v Joseph York et al., Respondents.
    Submitted March 30, 2009;
    decided May 7, 2009
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    546-552 West 146th Street LLC et al., Appellants, et al., Plaintiff, v Rachel L. Arfa et al., Respondents, et al., Defendants.
    Submitted March 23, 2009;
    decided May 7, 2009
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed the denial of appellants’ motion for leave to amend the complaint, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Joseph P. Maxon, Appellant, v Woods Oviatt Gilman LLP et al., Respondents.
    Submitted March 16, 2009;
    decided May 7, 2009
   Motion, insofar as it seeks leave to appeal from the Appellate Division order affirming the denial of appellant’s disqualification motion, dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of New York Charter Schools Association, Inc., et al., Appellants, v Thomas P. DiNapoli, as Comptroller of the State of New York, et al., Respondent.
    Submitted May 4, 2009;
    decided May 7, 2009
   Motion by New York State United Teachers 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 24 copies filed within seven days.


text:
    In the Matter of David O’Kane, Appellant, v Robert S. Kirkpatrick, as Superintendent of Wende Correctional Facility, et al., Respondents.
    Submitted March 30, 2009;
    decided May 7, 2009
   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 Virginia Parkhouse, Appellant, v Scott M. Stringer, as Borough President of Manhattan, et al., Respondents.
    Submitted May 4, 2009;
    decided May 7, 2009
   Motion by New York Civil Liberties Union 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 24 copies filed within seven days.

Chief Judge Lippman taking no part.


text:
    The People of the State of New York, Respondent, v Gregory M. Drayton, Appellant.
    Submitted May 4, 2009;
    decided May 7, 2009
   Motion for assignment of counsel granted and Timothy P. Donaher, Esq., Monroe County Public Defender, 10 N. Fitzhugh Street, Rochester, New York 14614 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Efrain Hernandez, Appellant.
    Submitted May 4, 2009;
    decided May 7, 2009
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Raheem Mayo, Appellant.
    Submitted May 4, 2009;
    decided May 7, 2009
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    Riverside Capital Advisers, Inc., Plaintiff, and Winchester Global Trust Company Limited, Respondent, v First Secured Capital Corp. et al., Defendants, and Thomas B. Donovan Family Trust, Appellant. Thomas B. Donovan et al., Nonparties Appellants.
    Submitted March 2, 2009;
    decided May 7, 2009
   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:
    Sam Pilato and Son, Inc., et al., Respondents, v Leo D. Starowitz, Sr., et al., Defendants, and Frank Starowitz, Appellant.
    Submitted March 23, 2009;
    decided May 7, 2009
   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 Diane Word, Appellant, v Barbara G. Zambelli, as Justice of the Supreme Court of the State of New York, et al., Respondents.
    Decided May 7, 2009
   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 Randy J. Wright, Respondent. Central Transport, Inc., Appellant; Commissioner of Labor, Respondent.
    Submitted March 16, 2009;
    decided May 7, 2009
   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:
    [909 NE2d 83, 881 NYS2d 390]
    In the Matter of RSM West Lake Road LLC et al., Respondents, v Town of Canandaigua Zoning Board of Appeals et al., Respondents, and East Shore Association of Canandaigua Lake, Inc., et al., Appellants.
    Decided May 12, 2009

      APPEARANCES OF COUNSEL

      Brenna, Brenna & Boyce, PLLC, Rochester (Sheldon W. Boyce of counsel), for East Shore Association of Canandaigua Lake, Inc. and another, appellants.

      Hiscock & Barclay LLP, Rochester (Thomas F. Walsh of counsel), for RSM West Lake Road, LLC and others, respondents.
   OPINION OF THE COURT

Memorandum.

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

Appellants East Shore Association of Canandaigua Lake, Inc. and Canandaigua Lake Watershed Alliance, Inc. had standing to appeal to the Town of Canandaigua Zoning Board of Appeals (ZBA) from the zoning officer’s determinations that the clubhouse is a private water oriented recreational facility within the meaning of the Town of Canandaigua Zoning Law (Zoning Law) and that the docks, moorings and boat slips are regulated by the “all other land uses” category of the Canandaigua Lake Uniform Docking and Mooring Law (UDML) (see Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d 406, 412-414 [1987]; Town Law § 267-a [4]; UDML 44-10 [A]). Moreover, the ZBA had jurisdiction to review the zoning officer’s determinations interpreting the UDML, which was adopted pursuant to article 16 of the Town Law, as authorized by Navigation Law § 46-a (4) (a) {see Town Law § 267-a [4]). However, the ZBA’s determinations as to the clubhouse under the Zoning Law and the docks, moorings and boat slips under the UDML were arbitrary and capricious. Finally, any issue as to whether the proposed sundeck is a dock within the meaning of the UDML has become moot inasmuch as the sundeck was removed from the overall project subsequent to the Appellate Division’s determination.

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

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


text:
    [909 NE2d 83, 881 NYS2d 390]
    Arts4All, Ltd., Appellant, et al., Plaintiff, v Judith L. Hancock, Respondent and Counterclaim Plaintiff-Respondent, et al., Additional Counterclaim Defendants.
    Decided May 12, 2009
    APPEARANCES OF COUNSEL

      Zachary R. Greenhill, P.C., New York City (Zachary R. Greenhill of counsel), for appellant.

      Trachtenberg Rodes & Friedberg LLP, New York City (David G. Trachtenberg 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 not answered as unnecessary.

The courts below applied the correct legal standards, properly considered all the facts and circumstances of the case, and did not abuse their discretion in dismissing plaintiffs’ remaining cause of action pursuant to CPLR 3126 (3) (see Kihl v Pfeffer, 94 NY2d 118, 123 [1999]).

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

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order, insofar as appealed from, affirmed, etc.


text:
    Awards.com, LLC, et al., Appellants, v Kinko's, Inc., et al., Respondents, et al., Defendant.
    Submitted March 26, 2009;
    decided May 12, 2009
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no appeal lies as of right pursuant to CPLR 5601 (d) from the Supreme Court judgment to bring up for review the prior nonfinal order of the Appellate Division, where the Appellate Division order was unanimous and did not directly involve a substantial constitutional question. Motion for leave to appeal granted.


text:
    Colin Fraser et al., Appellants, v 301-52 Townhouse Corp. et al., Respondents.
    Decided May 12, 2009
   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 Richard E. Gordon et al., Appellants, v Town of Esopus et al., Respondents. (And Three Other Related Proceedings.)
    Decided May 12, 2009
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the two-Justice dissent at the Appellate Division is not on a question of law (CPLR 5601 [a]).


text:
    Dana Juhasz, Appellant, v Stephen Juhasz, Respondent.
    Submitted March 30, 2009;
    decided May 12, 2009
   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:
    R. Bruce McLean, Appellant, v City of Kingston et al., Respondents.
    Decided May 12, 2009
   Appeal, insofar as taken from that part of the Appellate Division order that affirmed Supreme Court’s order denying appellant’s motion to renew, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; appeal otherwise dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    166 Archer Ave. Co., LLC, Appellant, v New York City Health and Hospitals Corporation, Respondent.
    Submitted April 6, 2009;
    decided May 12, 2009
   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 James E. Pennington, Appellant, v James Woytash, MD, DDS, Respondent.
    Submitted March 23, 2009;
    decided May 12, 2009
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York ex rel. Lee Williams, Appellant, v D.E. LaClair, as Superintendent of Franklin Correctional Facility, Respondent.
    Decided May 12, 2009
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Portfolio Recovery Associates, LLC, Respondent, v Jared King, Appellant.
    Submitted March 16, 2009;
    decided May 12, 2009
   Motion by Lincoln Square Legal Services, Inc. for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    In the Matter of Montgomery Blair Sibley, an Attorney, Appellant. Grievance Committee of the Seventh Judicial District, Respondent.
    Decided May 12, 2009
   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 Diane Word, Appellant, v Superintendent of Bedford Hills Correctional Facility et al., Respondents.
    Decided May 12, 2009
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Second Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).


text:
    [909 NE2d 577, 881 NYS2d 655]
    Christopher Hotaling et al., Appellants, v City of New York et al., Respondents.
    Decided June 4, 2009
    APPEARANCES OF COUNSEL

      Breakstone Law Firm, P.C., Bellmore (Jay L.T. Breakstone of counsel), for appellants.

      Michael A. Cardozo, Corporation Counsel, New York City 0Cheryl Payer and Stephen J. McGrath of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs. The certified question should not be answered as unnecessary.

The Appellate Division properly held that the testimony of plaintiffs’ expert was insufficient, as a matter of law, to support a prima facie case of negligent design (see generally Buchholz v Trump 767 Fifth Ave., LLC, 5 NY3d 1, 8-9 [2005]).

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

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


text:
    [909 NE2d 577, 881 NYS2d 655]
    In the Matter of GRA V, LLC, et al., Appellants, v Meenakshi Srinivasan et al., Respondents.
    Argued April 29, 2009;
    decided June 4, 2009

      APPEARANCES OF COUNSEL

      Sheldon Label, P.C., New York City (Richard Label and Jordan Most of counsel), for appellants.

      Michael A. Cardozo, Corporation Counsel, New York City (Leonard J. Koerner, Stephen J. McGrath and Victoria Scalzo of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the matter remitted to Supreme Court with directions to remand to the New York City Board of Standards and Appeals (BSA) for further proceedings in accordance with this memorandum.

Petitioners brought this CPLR article 78 proceeding to annul a BSA resolution. The challenged resolution denied petitioners’ appeal from a determination of the New York City Department of Buildings (DOB) that required petitioners to stop work on a proposed apartment building. The proposed building was not a permissible use under a newly-adopted amendment to the New York City Zoning Resolution. The DOB decided, and the BSA agreed, that petitioners had not acquired a vested right to build before the amendment was adopted.

Supreme Court rejected petitioners’ claim and dismissed the proceeding. The Appellate Division, with two justices dissenting, affirmed. On appeal to this Court, however, the BSA concedes that it and the lower courts were in error and that its determination must be vacated. The only issue on which the parties now disagree is whether petitioners have established their right to proceed with their building as a matter of law, or whether the BSA should consider the matter further.

We are unable to say that petitioners’ right to build is established as a matter of law by this record. While no legal obstacle to the building is apparent, the BSA, basing its decision on what it erroneously thought to be a fatal flaw in petitioners’ application, may not have reviewed all other material aspects of it. The matter must therefore be remanded to the BSA to enable it to do so.

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

Order reversed, etc.


text:
    Timothy Anderson et al., Appellants, v New York City Housing Authority, Respondent.
    Submitted April 6, 2009;
    decided June 4, 2009
   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 Danielle Joy K., a Child Alleged to be Permanently Neglected. Administration for Children’s Services et al., Respondents; Stacy K., Appellant.
    Submitted April 27, 2009;
    decided June 4, 2009
   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 the Adoption of John Doe, an Infant. LMB, Respondent; ERJ, Appellant.
    Submitted June 1, 2009;
    decided June 4, 2009
   Motion by James Ching, Esq. for leave to appear amicus curiae on the appeal herein denied.


text:
    In the Matter of the Claim of Sherman Green, Appellant, v Kimber Manufacturing, Inc., Respondent. Workers’ Compensation Board, Respondent.
    Submitted April 13, 2009;
    decided June 4, 2009
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of John D. Justice, Appellant, v George B. Alexander, as Chairman of the New York State Division of Parole, Respondent.
    Submitted April 20, 2009;
    decided June 4, 2009
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Faith Ann Peaslee and Others. George M. Reiber, Appellant, v GMAC, LLC, et al., Respondents.
    Submitted June 1, 2009;
    decided June 4, 2009
   Motion by Ingrid M. Hillinger 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.


text:
    The People of the State of New York, Respondent, v Homer Brown, Jr., Appellant.
    Submitted June 1, 2009;
    decided June 4, 2009
   Motion for assignment of counsel granted and Timothy E Donaher, Esq., Monroe County Public Defender, 10 N. Fitzhugh Street, Rochester, New York 14614 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Michael Edwards, Appellant.
    Submitted May 11, 2009;
    decided June 4, 2009
   Motion for assignment of counsel granted and Timothy P Donaher, Esq., Monroe County Public Defender, 10 N. Fitzhugh Street, Rochester, New York 14614 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Craig Lewis, Appellant.
    Submitted May 11, 2009;
    decided June 4, 2009
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Larry Mynin, Appellant.
    Submitted June 1, 2009;
    decided June 4, 2009
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.


text:
    Anna Pezhman, Appellant, v City of New York et al., Respondents.
    Submitted April 20, 2009;
    decided June 4, 2009
   Motion for reargument of motion for leave to appeal denied [see 12 NY3d 796 (2009)].


text:
    In the Matter of Social Service Employees Union, Local 371, on Behalf of Its Member Matthew Opuoru, Appellant, v City of New York Administration for Children’s Services, Respondent.
    Submitted April 13, 2009;
    decided June 4, 2009
   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 John A. Tabacco, Respondent, v John W. Vitucci, Respondent, and Board of Elections in the City of New York, Appellant.
    Submitted April 13, 2009;
    decided June 4, 2009
   Motion for leave to appeal dismissed upon the ground that the issues presented have become moot.


text:
    [910 NE2d 982, 883 NYS2d 153]
    Donna M. Lang, Respondent, v James P. Newman et al., Defendants, and Russell J. Firman, Appellant.
    Argued May 7, 2009;
    decided June 9, 2009

      APPEARANCES OF COUNSEL

      Phelan, Phelan & Danek, LLP, Albany (Timothy S. Brennan of counsel), for appellant.

      Robert E. Lahm, PLLC, Syracuse (Robert E. Lahm of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff was transported to a hospital in January 2003 after awakening with numbness on the left side of her body, slurred speech and facial drooping. After arriving in the emergency room, she also developed a headache. Plaintiff was initially treated by defendant James P Newman, D.O., but his shift ended and defendant Russell J. Firman, M.D., assumed plaintiffs care. Dr. Firman ordered a CT scan but the test did not definitively rule out the possibility that there was bleeding in plaintiffs brain. A routine neurological examination revealed no abnormalities and plaintiff was administered medication to treat her headache. Plaintiff declined a more invasive procedure to determine if her brain was bleeding and was subsequently discharged with the final diagnosis of a migraine headache.

Shortly after her discharge, plaintiff was examined by her primary care physician, who believed plaintiff may have been experiencing a stroke. Plaintiff was sent to a hospital in Syracuse where an MRI test indicated that she had suffered an ischemic stroke on the right side of her brain. Shortly thereafter, she was admitted to a different hospital where she was given anticoagulant medication to lessen the clotting of her blood and decrease the possibility of a second stroke. As a result of her stroke, plaintiff suffered permanent injuries.

Plaintiff commenced this action against Drs. Newman and Firman, and their medical groups. Although the jury determined that Firman was not liable for failing to administer an anticoagulant drug, it found him liable for failing to admit plaintiff to the hospital and that such negligence was a substantial factor in causing her injuries. The other defendants were found not liable. Plaintiff was awarded $300,000 in damages for past pain and suffering. The Appellate Division affirmed over a two-Justice dissent, concluding that the verdict was supported by legally sufficient evidence. We agree.

Evidence is legally insufficient to support a verdict if “there is simply no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury on the basis of the evidence presented at trial” (Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]). Plaintiff’s expert testified that if Firman had admitted plaintiff to the hospital rather than discharging her, the stroke would have been diagnosed, she would have been given an anticoagulant, and the failure to administer that medicine resulted in “a little larger stroke than she should have had if she was properly treated.” Despite the fact that the expert also stated that it was “very hard to quantify” precisely how much additional damage plaintiff suffered as a result of Firman’s negligence, we cannot say that the jury’s finding of liability on this theory was “utterly irrational” (id.) or that no basis of proof existed to support the verdict. Consequently, the verdict was based on legally sufficient evidence.

Finally, Firman’s challenge to the consistency of the verdict is unpreserved and there is no merit to his contention that the damages were speculative.

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

Order affirmed, with costs, in a memorandum.


text:
    Adventure Trails, Inc., Appellant, v Leading the Way Tours, Inc., et al., Respondents.
    Submitted April 6, 2009;
    decided June 9, 2009
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument, dismissed 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 Appellate Division order dismissing the appeal to that Court, dismissed as untimely (see CPLR 5513 [b]; Eaton v State of New York, 76 NY2d 824 [1990]).


text:
    In the Matter of Rinaldo DelGallo, III, Appellant, v Yulea DelGallo, Respondent.
    Submitted April 13, 2009;
    decided June 9, 2009
   Motion, insofar as it seeks leave to appeal as against the Law Guardian, dismissed as untimely (see CPLR 5513 [b]); motion, insofar as it seeks leave to appeal as against Yulea DelGallo, denied. Motion for poor person relief dismissed as academic.


text:
    Rowland Gureje, Appellant, v Jasmine Richardson et al., Respondents.
    Submitted May 4, 2009;
    decided June 9, 2009
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]; Eaton v State of New York, 76 NY2d 824 [1990]).


text:
    In the Matter of Mill River Club, Inc., Appellant, v New York State Division of Human Rights et al., Respondents.
    Decided June 9, 2009
   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 Theresa Mooring, Appellant, v American Airlines et al., Respondents. Workers’ Compensation Board, Respondent.
    Submitted May 4, 2009;
    decided June 9, 2009
   Motion for reargument of motion for leave to appeal denied [see 12 NY3d 704 (2009)].


text:
    State of New York, Respondent, v LVF Realty Co., Inc., et al., Respondents, and Sunoco, Inc. (R&M), Appellant.
    Submitted April 6, 2009;
    decided June 9, 2009
   Motion for leave to appeal denied upon the ground that an appeal lies as of right.


text:
    State of New York ex rel. Barbara D., Appellant, v Francis D., Respondent. Francis D., Respondent, v Barbara D., Appellant.
    Decided June 9, 2009
   Appeal, insofar as taken in the habeas corpus proceeding, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved and the two-Justice dissent at the Appellate Division does not pertain to that proceeding; appeal, insofar as taken in the matrimonial action, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the Appellate Division order does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Vanessa R. Jesus Berrios, Appellant; Mental Hygiene Legal Services, on Behalf of Vanessa R., Respondent.
    Submitted April 20, 2009;
    decided June 9, 2009
   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 (see McDermott v Manhattan Eye, Ear & Throat Hosp., 15 NY2d 20, 23 n 2 [1964]). Motion for poor person relief dismissed as academic.


text:
    In the Matter of Quincy Wade, Appellant, v Dale Artus, as Superintendent of Clinton Correctional Facility, et al., Respondents.
    Decided June 9, 2009
   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 Carl Wells, Appellant, v Gregory Carro, as Justice of the Supreme Court of the State of New York, Respondent.
    Submitted April 20, 2009;
    decided June 9, 2009
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


text:
    [911 NE2d 844, 883 NYS2d 782]
    Peter Marc Stern, Respondent, v Andrew Lavoott Bluestone, Appellant.
    Argued April 29, 2009;
    decided June 11, 2009

      APPEARANCES OF COUNSEL

      Andrew Lavoott Bluestone, pro se, and Scott H. Greenfield, New York City, for Andrew Lavoott Bluestone, appellant.

      Bromberg Law Office, P.C., New York City (Brian L. Bromberg of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs; the case remitted to Supreme Court for further proceedings in accordance with this opinion; and the certified question answered in the negative.

During the roughly 16-month period from November 25, 2003 through March 29, 2005, plaintiff Peter Marc Stern, a solo practitioner, received 14 unasked-for facsimile messages (faxes) from defendant Andrew Lavoott Bluestone, a solo practitioner who specializes in bringing attorney malpractice actions. Each fax was entitled “Attorney Malpractice Report,” and included Bluestone’s contact information and Web site addresses. The body of each fax consisted of a short essay about various topics related to attorney malpractice: fee disputes with clients, the elements of professional malpractice, liens, common causes of attorney malpractice litigation, and unexpected circumstances in which claims of attorney malpractice arise.

In August 2005, Stern commenced this lawsuit against Blue-stone pursuant to the Telephone Consumer Protection Act (TCPA) of 1991 (47 USC § 227, as added by Pub L 102-243, 105 US Stat 2394), which prohibits the use of “any telephone facsimile machine ... to send ... an unsolicited advertisement” (47 USC § 227 [b] [1] [C]); and creates a private right of action in state court for recovery of money damages (47 USC § 227 [b] [3]). At the time Bluestone sent the 14 faxes, the TCPA defined an “unsolicited advertisement” as “any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person’s prior express invitation or permission” (former 47 USC § 227 [a] [4]). Stern alleged that the 14 faxes he received from Bluestone were “unsolicited advertisements” within the meaning of the TCPA and, as a first cause of action, he sought $500 in damages for each fax, which he asked the court to treble on account of Bluestone’s alleged willful or knowing violation of the statute.

In December 2005, Stern moved for summary judgment as to liability on his first cause of action, and for a finding, as a matter of law, that Bluestone had knowingly or willfully violated the TCPA. In support of the motion, Stern declared in an affidavit that he “never authorized [Bluestone] to transmit facsimiles to [him] or anyone else at [his] office.” He also asserted that he never had a business relationship with Bluestone, and had never heard of him until he began receiving the faxes in November 2003. In opposition to the motion, Bluestone contended that the faxes were not advertisements, or at the very least that there was a factual question as to whether they were.

In August 2006, Supreme Court granted Stern summary judgment as to liability on his first cause of action, concluding that Bluestone’s faxes “indirectly advertise[d] the commercial availability and quality” of his services as a legal malpractice attorney. Supreme Court also found “as a matter of law that Blue-stone willfully and knowingly violated the TCPA.” In that regard, the court noted that Bluestone “was served with a similar complaint for violation of the TCPA in 2003, leading to summary judgment against him in this court [in] 2004.” Upon Blue-stone’s appeal, the Appellate Division, with two Justices dissenting, reiterated Supreme Court’s reasoning and affirmed. We now reverse.

In 2006, when it amended its rules implementing the TCPA and the Junk Fax Prevention Act of 2005 (Pub L 109-21, 119 US Stat 359, amending 47 USC § 227), the Federal Communications Commission (FCC) elaborated on what constitutes an “unsolicited advertisement” (see 71 Fed Reg 25967 [2006], codified at 47 CFR 64.1200). With respect to “informational messages” via facsimile, the FCC stated that

“facsimile communications that contain only information, such as industry news articles, legislative updates, or employee benefit information, would not be prohibited by the TCPA rules. An incidental advertisement contained in such a newsletter does not convert the entire communication into an advertisement . . . Thus, a trade organization’s newsletter sent via facsimile would not constitute an unsolicited advertisement, so long as the newsletter’s primary purpose is informational, rather than to promote commercial products” (id. at 25973 [emphasis added]).

We conclude that Bluestone’s “Attorney Malpractice Report” fits the FCC’s framework for an “informational message,” and thus the 14 faxes are not “unsolicited advertisement[s]” within the meaning of the TCPA. In these reports, Bluestone furnished information about attorney malpractice lawsuits; the substantive content varied from issue to issue; and the reports did not promote commercial products. To the extent that Bluestone may have devised the reports as a way to impress other attorneys with his legal expertise and gain referrals, the faxes may be said to contain, at most, “[a]n incidental advertisement” of his services, which “does not convert the entire communication into an advertisement” (id.). As a final matter, we note that Bluestone did not cross-move for summary judgment in Supreme Court, and, unlike Supreme Court and the Appellate Division, we are not empowered to search the record and grant summary judgment to a nonmoving party (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110-111 [1984]).

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

Order reversed, etc.


text:
    [911 NE2d 846, 883 NYS2d 784]
    The People of the State of New York, Respondent, v Jesus Cano, Appellant.
    Decided June 11, 2009

      APPEARANCES OF COUNSEL

      Larkin, Axelrod, Ingrassia & Tetenbaum, LLP, Newburgh (Kathleen V. Wells of counsel), for appellant.

      Francis D. Phillips, II, District Attorney, Middletown (Andrew R. Kass of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The defendant came “dangerously near” the commission of crimes when he arrived at the location of what he thought would be a sexual rendevous with an underage boy. The proof of defendant’s intent and extensive preparation followed by his travel to the intended crime scene showed that he was close to achieving his illegal goal and justified his convictions for attempt (People v Naradzay, 11 NY3d 460 [2008]).

The appellant’s other contentions lack merit.

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

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


text:
    Bank of America, N.A., Respondent, v Sheldon H. Solow, Appellant.
    Submitted May 4, 2009;
    decided June 11, 2009
   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:
    Lenore Bellinger, Individually and as Parent and Guardian of Raven N. Simmons, an Infant, Appellant, v Ballston Spa Central School District, Respondent.
    Submitted May 11, 2009;
    decided June 11, 2009
   Motion for reargument of motion for leave to appeal denied [see 12 NY3d 704 (2009)].


text:
    Peter E. Bissell et al., Respondents, v Town of Amherst, Appellant-Respondent and Third-Party Plaintiff. McGonigle & Hilger Roofing Company, Third-Party Defendant-Respondent-Appellant.
    Submitted March 16, 2009;
    decided June 11, 2009
   Motion by the Town of Amherst for leave to appeal denied. Motion by McGonigle & Hilger Roofing Company, insofar as it seeks leave to appeal as against plaintiffs from the November 14, 2008 Appellate Division order, denied; motion, insofar as it seeks leave to appeal from the November 14, 2008 order as against defendant Town of Amherst, dismissed upon the ground that such order does not finally determine the action as to these parties within the meaning of the Constitution, and, from other orders of the Appellate Division, upon the ground that such orders do not finally determine the action within the meaning of the Constitution.

Judge Pigott taking no part.


text:
    Alexander Breytman, Appellant, v Olinville Realty, LLC, et al., Respondents.
    Submitted March 23, 2009;
    decided June 11, 2009
   Motion for leave to appeal from the Appellate Division order denying reargument or leave to appeal to the Court of Appeals dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution. Motion to enlarge the record denied.


text:
    Alexander Breytman, Appellant, v Olinville Realty, LLC, et al., Respondents.
    Submitted April 27, 2009;
    decided June 11, 2009
   Motion, insofar as it seeks leave to appeal from the March 12, 2009 Appellate Division order, dismissed 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 12, 2009 Supreme Court order, dismissed upon the ground that it does not lie (see NY Const, art VI, § 3; CPLR 5602).


text:
    In the Matter of Darren F., Respondent, v Marie-Amina T., Appellant.
    Submitted April 20, 2009;
    decided June 11, 2009
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument or leave to appeal to the Court of Appeals, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution; motion, insofar as it seeks leave to appeal from the Appellate Division order of affirmance, denied. Motion for poor person relief dismissed as academic.


text:
    Jane Doe et al., Respondents, v Roman Catholic Diocese of Rochester et al., Appellants.
    Submitted May 4, 2009;
    decided June 11, 2009
   Motion for reargument denied with $100 costs and necessary reproduction disbursements [see 12 NY3d 764 (2009)].


text:
    Eighth Avenue Garage Corp., Appellant, v H.K.L. Realty Corp. et al., Defendants, and Lila Scheiner, Respondent.
    Submitted April 27, 2009;
    decided June 11, 2009
   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 Frederick Franklin, Appellant, v Ann Schwartz, as Records Access Officer of the New York County District Attorney’s Office, Respondent.
    Submitted April 27, 2009;
    decided June 11, 2009
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).

Chief Judge Lippman taking no part.


text:
    Mahender R. Goriganti, Appellant, v Syracuse Orthopedic Specialists, P.C., Respondent.
    Submitted April 27, 2009;
    decided June 11, 2009
   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.