text:
    [957 NE2d 761, 933 NYS2d 192]
    The People of the State of New York, Respondent, v Terrance D. Robinson, Appellant.
    Argued September 8, 2011;
    decided October 13, 2011
    APPEARANCES OF COUNSEL

      Bruce Evans Knoll, Albany, for appellant.

      Beth G. Cozzolino, District Attorney, Hudson (David Costanzo and Henry Neal Conolly of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and a new trial ordered.

On February 16, 2006, while on duty in the City of Hudson, Officer Jason Finn observed a vehicle pull away from a parked position without using a turning signal. He also noticed excessive smoke emanating from the vehicle’s tailpipe. Shortly thereafter, Officer Finn stopped the vehicle. Defendant, the vehicle’s operator and sole occupant, abruptly exited the vehicle and walked towards a nearby store. Officer Finn repeatedly instructed defendant to return to the vehicle, but defendant refused, becoming argumentative and hostile. Officer Finn advised defendant that he was under arrest for obstructing governmental administration and resisting arrest. The officer remained with the vehicle, but subsequently learned that the vehicle’s registered owner, defendant’s cousin, was not present at the scene. Because he did not possess the keys and the vehicle was parked in a no-parking zone, Officer Finn decided to impound the vehicle. Prior to the tow truck’s arrival, Officer Finn conducted an inventory search, discovering a loaded revolver under the driver’s seat. Defendant was charged with criminal possession of a weapon in the third degree (Penal Law § 265.02).

At trial, Officer Finn testified that, after explaining to defendant that he was being charged with possessing a loaded firearm, defendant responded, “it wasn’t armed, but that’s okay, possession is nine/tenths of the law.” Defendant recounted a slightly different version of the same conversation, testifying that he told the officer “that I wasn’t armed with anything. He said, I don’t know what kind of games you playing here. Then I asked him, who is going to be my attorney, because I know for a fact that nine/tenths of the law is possession.” The People objected to defense counsel’s subsequent question, “Why did you say if you recall nine/tenths of the law — possession is nine/tenths of the law?” County Court sustained the People’s objection to that question. Following summations, County Court instructed the jury on the automobile presumption, stating that all persons occupying a vehicle are presumed to possess a firearm found within the vehicle (see Penal Law § 265.15). The jury found defendant guilty.

The Appellate Division affirmed (69 AD3d 973 [2010]). The court determined that while County Court erroneously denied defendant an opportunity to explain the statements he allegedly made to the police, any such error was harmless considering the overwhelming evidence of defendant’s guilt. A Judge of this Court granted leave to appeal and we now reverse.

The primary issue before us is whether County Court’s error in sustaining the prosecutor’s objection to defense counsel’s question of defendant was harmless.

This Court has stated that “[t]he paramount purpose of all rules of evidence is to ensure that the jury will hear all pertinent, reliable and probative evidence which bears on the disputed issues” (People v Miller, 39 NY2d 543, 551 [1976]; see also People v Yazum, 13 NY2d 302, 304 [1963]). Here, the Appellate Division properly found that County Court erred when it denied defendant an opportunity to explain fully the statements he made while in police custody since defendant’s statements were both pertinent and probative.

We conclude however that the error was not harmless. An error is harmless only when there is “overwhelming proof of the defendant’s guilt” and no significant probability that the jury would have acquitted the defendant were it not for the error (People v Crimmins, 36 NY2d 230, 242 [1975]; see also People v Arafet, 13 NY3d 460, 467 [2009]). Here, the evidence against defendant was not overwhelming. It was not defendant’s vehicle. He had been driving it for only a short period of time prior to the traffic stop, and then only to take someone to the train station. Several different family members had access to the vehicle prior to defendant’s use on this occasion. In light of this, defendant’s potentially inculpatory statements about the revolver were the sole evidence tending to establish that he knew that the revolver was in the vehicle when he was stopped. Because defendant was not allowed the opportunity to explain those statements, the jury was left to reconcile the automobile presumption with the officer’s account of defendant’s ambiguous statements. Considering that defendant’s explanation may have created doubt in the jury’s mind sufficient to rebut the automobile presumption, resulting in an acquittal, it cannot be said that the error was harmless.

Defendant’s remaining contentions lack merit.

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

Order reversed, etc.


source: Caselaw Access Project

license: Public Domain

text:
    Assured Guaranty (UK) Ltd., in the Right of Itself and of Orkney Re II PLC, Respondent, v J.P. Morgan Investment Management Inc., Appellant.
    Submitted October 11, 2011;
    decided October 13, 2011
   Motion by New York State AFL-CIO et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 19 copies filed within seven days.


text:
    In the Matter of Hailey ZZ., a Child Alleged to be Permanently Neglected. Tompkins County Department of Social Services, Respondent; Ricky ZZ., Appellant.
    Submitted October 11, 2011;
    decided October 13, 2011
   Motion for poor person relief granted.


text:
    Ayube Hussein, as Parent of a Student in the Albany City School District, et al., Respondents, v State of New York, Appellant.
    Submitted September 19, 2011;
    decided October 13, 2011
   Motion by New York State United Teachers 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 19 copies filed within seven days.


text:
    In the Matter of Jaleel E.F., an Infant. Erie County Department of Social Services, Respondent; Cheryl S., Respondent, and Ernest F., Appellant.
    Submitted July 18, 2011;
    decided October 13, 2011
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    In the Matter of Miguel M., Also Known as Miquel M., Appellant; Charles Barron, M.D., Director of the Department of Psychiatry at Elmhurst Hospital Center, Respondent.
    Submitted June 27, 2011;
    decided October 13, 2011
   Motion for reargument denied [see 17 NY3d 37 (2011)].


text:
    Francisca Montan, Appellant, v Saint Vincent’s Catholic Medical Center et al., Defendants, and St. Vincent’s Midtown Hospital et al., Respondents.
    Submitted July 18, 2011;
    decided October 13, 2011
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v Jose Alfaro, Appellant.
    Submitted September 26, 2011;
    decided October 13, 2011
   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 Harvey A. Bailey, Appellant.
    Submitted June 27, 2011;
    decided October 13, 2011
   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 George Harris, Appellant.
    Submitted September 26, 2011;
    decided October 13, 2011
   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 Donyell J. McKenzie, Appellant.
    Submitted September 19, 2011;
    decided October 13, 2011
   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 Jorge Pagan, Appellant.
    Submitted July 25, 2011;
    decided October 13, 2011
   Motion to vacate this Court’s July 6, 2011 dismissal order granted [see 17 NY3d 804 (2011)].


text:
    The People of the State of New York, Appellant-Respondent, v Louis Riley, Respondent-Appellant.
    Submitted September 19, 2011;
    decided October 13, 2011
   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 respondent-appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Brandon Stilts, Appellant.
    Submitted October 3, 2011;
    decided October 13, 2011
   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 Western Express International, Inc., et al., Defendants, and Vadim Vassilenko, Appellant.
    Submitted October 13, 2011;
    decided October 13, 2011
   Motion for assignment of counsel granted and Marianne Karas, Esq., PO Box 277, Armonk, New York 10504 assigned as counsel to appellant Vadim Vassilenko on the appeal herein.


text:
    In the Matter of Pauline Petulla, Respondent, v Vincent Petulla et al., Respondents, and Dolores Moscato, Appellant.
    Submitted July 25, 2011;
    decided October 13, 2011
   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:
    Jose Luis Toledo, as Administrator of the Estate of Joaquin Martinez, Deceased, Respondent, v Iglesia Ni Christo, Appellant.
    Submitted October 11, 2011;
    decided October 13, 2011
   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:
    Trump on the Ocean, LLC, Appellant, v Carol Ash et al., Respondents.
    Submitted July 18, 2011;
    decided October 13, 2011
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the action within the meaning of the Constitution. Motion for a stay dismissed as academic.


text:
    Myrna Walker, Respondent, v Robert Walker, Appellant.
    Submitted July 25, 2011;
    decided October 13, 2011
   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:
    [957 NE2d 1137, 933 NYS2d 635]
    Dallas M. Grove, Appellant, v Cornell University et al., Respondents.
    Decided October 18, 2011

      APPEARANCES OF COUNSEL

      Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of counsel), for appellant.

      Levene Gouldin & Thompson, LLP, Binghamton (John L. Perticone of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The judgment appealed from and the order of the Appellate Division brought up for review should be modified, without costs, by denying defendants’ motion for summary judgment seeking dismissal of plaintiffs Labor Law § 240 (1) claim and, as so modified, affirmed.

Triable issues of fact exist as to whether defendants failed to provide an adequate safety device to plaintiff in violation of Labor Law § 240 (1) or whether plaintiffs conduct was the sole proximate cause of his injuries.

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

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), judgment appealed from and order of the Appellate Division brought up for review modified, etc.


text:
    [958 NE2d 538, 934 NYS2d 360]
    The People of the State of New York, Respondent, v Christopher Porgo, Appellant.
    Argued September 13, 2011;
    decided October 18, 2011

      APPEARANCES OF COUNSEL

      Kindlon Shanks and Associates, Albany (Terence L. Kindlon and Kathy Manley of counsel), for appellant.

      P. David Soares, District Attorney, Albany (Christopher D. Horn and Steven M. Sharp of counsel), for respondent.

      Janet DiFiore, District Attorney, New York City (Susan Axelrod and Morrie I. Kleinbart of counsel), for District Attorneys Association of the State of New York, amicus curiae.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant Christopher Porco claims that his federal constitutional right to confront the witnesses against him was violated by the admission at his criminal trial of testimony that his gravely injured mother nodded affirmatively when asked by the police if he was her assailant. This occurred as medics were preparing his mother for treatment, immediately after she was discovered lying in her bed in the family home, covered with blood, suffering from severe head trauma and unable to speak because her jaw was shattered and dislocated. Even assuming, without deciding, that the testimony about the nod was constitutionally infirm, any error was harmless beyond a reasonable doubt.

Trial errors resulting in violation of a criminal defendant’s Sixth Amendment right to confrontation “are considered harmless when, in light of the totality of the evidence, there is no reasonable possibility that the error affected the jury’s verdict” (People v Douglas, 4 NY3d 777, 779 [2005], citing People v Crimmins, 36 NY2d 230, 240-241 [1975]). Here, overwhelming evidence placed defendant at the family home near Albany, New York, during the predawn hours of November 15, 2004, when the crimes for which he was convicted (the murder of his father and the attempted murder of his mother while they slept) were committed there.

This evidence included, among many other things, video recordings from traffic cameras in Rochester, New York, where defendant was attending the University of Rochester, which captured images of a yellow Jeep Wrangler as it headed in the direction of the New York State Thruway at 10:36 p.m. on November 14, 2004, and headed back toward the campus at 8:30 a.m. on November 15, 2004, and expert testimony that this vehicle was of the same class and displayed characteristics unique to the jeep that defendant drove; expert testimony that defendant was in the 0.39% of North Americans whose mitochondrial DNA profile matched the profile from a sample extracted from a toll ticket handed out at Thruway exit 46 in Rochester at 10:45 p.m. on November 14, 2004, and handed in at Thruway exit 24 in Albany at 1:51 a.m. on November 15, 2004; and evidence that at 2:14 a.m., 23 minutes later, the burglary alarm system at the family home (located 9.3 miles from exit 24) was turned off by someone using a master code known only to the two victims, defendant, his brother, a naval officer stationed in South Carolina at the time, and possibly defendant’s uncle and a female family friend, who were not in any way implicated. And a neighbor, a construction superintendent, testified that he observed a yellow Jeep Wrangler in the driveway of the family home around 3:45 or 4:00 a.m. on November 15, 2004, as he was driving from his residence on the same street to the site of the construction project he was supervising at the time, which was about 2 hours and 20 or 30 minutes away.

The jury also learned that defendant on five occasions claimed to have been planning to or to have slept in the lounge of his dormitory on November 14-15, 2004, but seven fellow students, who were in the lounge for various extended and overlapping periods of time between 10:30 p.m. on November 14, 2004, and 3:30 a.m. on November 15, 2004, testified that they did not see him there; that defendant was first observed on campus on November 15, 2004 at 8:45 a.m., about one mile from where his jeep was later found parked, running toward his dormitory, and was seen in the lounge at 9:30 a.m.; and that although defendant told several friends that he had tried to contact his parents at home or at work by telephone on November 15, 2004, the telephone records did not support this claim, and his father’s secretary testified that she did not receive a telephone call from defendant, although he told a friend that he had spoken with her. There was also considerable evidence that defendant repeatedly lied to his parents about his mounting financial and academic problems, and that his parents had caught on.

Further, the jury was presented with evidence, properly admitted by the trial court with a limiting instruction, of a seeming break-in at the family home during the night of November 18-19, 2002 while defendant was home from college for the Thanksgiving holiday. On this occasion, two laptop computers were stolen. Defendant conceded (by stipulation when the recovered computer was admitted into evidence) that he sold one of these computers on eBay to a California resident 20 days later. The proof of this staged break-in was unique and highly probative of defendant’s identity as the perpetrator of the crimes for which he was being tried, where the family home was likewise staged to make it appear as though his parents had been victimized by a stranger — e.g., the keypad for the burglary alarm system, installed after the November 2002 incident, was smashed although the alarm had, in fact, been turned off by someone who knew the master code. But as the jury learned (and the perpetrator obviously did not know), it was not possible to disarm the system or obliterate the record of the master code’s use (which was stored in a control panel in the basement) by damaging the keypad.

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

Order affirmed in a memorandum.

       The People unsuccessfully sought to admit evidence of three reported burglaries predating November 15, 2004, to which defendant was connected by the police only after that date — two at the family home (including the November 18-19, 2002 incident), and one at the veterinary hospital where he had worked.


text:
    James V. Aquavella, M.D., P.C., et al., Appellants, v. Ralph S. Viola, M.D., Respondent
    Submitted August 15, 2011;
    decided October 18, 2011
   Motion for reargument denied with $100 costs and necessary reproduction disbursements [see 17 NY3d 741 (2011)].


text:
    In the Matter of Gale Lee Davis, Appellant, v City of New York Comptroller et al., Respondents.
    Submitted August 22, 2011;
    decided October 18, 2011
   Motion for reargument of motion for leave to appeal denied [see 17 NY3d 773 (2011)].


text:
    Joseph J. Delanoy, Jr., et al., Respondents, v City of White Plains et al., Appellants, et al., Defendants.
    Submitted July 18, 2011;
    decided October 18, 2011
   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:
    Louise DiGiulio, Individually and as Executrix of Albert DiGiulio, Deceased, Appellant, v Gran, Inc., Doing Business as New York Health & Racquet Club, et al., Respondents. (And a Third-Party Action.)
    Submitted July 18, 2011;
    decided October 18, 2011
   Motion for reargument denied [see 17 NY3d 765 (2011)].


text:
    Luisa C. Esposito, Respondent, v Allen H. Isaac, Appellant, et al., Defendants.
    Submitted August 8, 2011;
    decided October 18, 2011
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain this motion for leave to appeal from the nonfinal order of the Appellate Division where the appeal to the Appellate Division was from an order entered on an appeal from another court (see NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]). Motion for a stay dismissed as academic.


text:
    Skip Funt, Appellant, v Human Resources Administration of the City of New York, Respondent.
    Submitted August 1, 2011;
    decided October 18, 2011
   Motion for reargument of motion for leave to appeal denied [see 17 NY3d 782 (2011)].


text:
    In the Matter of Bjorn Holubar, Appellant, v Karen O’Connor et al., Respondents.
    Decided October 18, 2011
   Chief Judge Lippman taking no part.


text:
    Hudson Valley Federal Credit Union, Appellant, v New York State Department of Taxation and Finance et al., Respondents.
    Submitted August 1, 2011;
    decided October 18, 2011
   Motion by the United States of America 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, 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 19 copies filed within 30 days.


text:
    Deborah Keller, Respondent, v Tom McDonald, Appellant.
    Submitted August 1, 2011;
    decided October 18, 2011
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain this motion for leave to appeal from the Appellate Division order where the appeal to the Appellate Division was from a County Court order entered on an appeal in this action commenced in the City Court of the City of Cortland (see NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]).


text:
    Gregory McCoy, Appellant, v Transport International Pool, Inc., Respondent.
    Submitted August 15, 2011;
    decided October 18, 2011
   Motion for reargument of motion for leave to appeal denied [see 17 NY3d 702 (2011)].


text:
    Fortune Mizrachi, Respondent, v Danny Mizrachi, Appellant.
    Submitted August 15, 2011;
    decided October 18, 2011
   Motion for reargument of motion for leave to appeal denied [see 17 NY3d 789 (2011)].


text:
    The People of the State of New York, Respondent, v Michael J. Solomon, Appellant.
    Submitted August 29, 2011;
    decided October 18, 2011
   Motion to vacate this Court’s August 11, 2011 dismissal order granted [see 17 NY3d 812 (2011)].


text:
    The People of the State of New York ex rel. Elbert Welch, Appellant, v James Hessel, Acting Superintendent, Gowanda Correctional Facility, Respondent.
    Submitted July 25, 2011;
    decided October 18, 2011
   Judge Pigott taking no part.


text:
    Sheila Properties, Inc., Respondent, v A Real Good Plumber, Inc., et al., Defendants, and Elizabeth Kelleher, Appellant.
    Submitted August 1, 2011;
    decided October 18, 2011
   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:
    Sheila Properties, Inc., Respondent, v A Real Good Plumber, Inc., et al., Defendants, and Elizabeth Kelleher, Appellant. Elizabeth Kelleher, Appellant, v Sheila Properties, Inc., Respondent, et al., Defendants.
    Submitted August 22, 2011;
    decided October 18, 2011
   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:
    Sheila Properties, Inc., Respondent, v A Real Good Plumber, Inc., et al., Defendants, and Elizabeth Kelleher, Appellant. Elizabeth Kelleher, Appellant, v Sheila Properties, Inc., Respondent, et al., Defendants.
    Submitted October 3, 2011;
    decided October 18, 2011
   Motion for a stay dismissed as academic.


text:
    John T. Siwula, Appellant, v Town of Hornellsville et al., Respondents.
    Submitted August 8, 2011;
    decided October 18, 2011
   Motion for reargument of motion for leave to appeal denied [see 17 NY3d 704 (2011)].


text:
    In the Matter of Jennifer Sniffen, Respondent, v Arthur Weygant, Appellant. (And Two Other Related Proceedings.)
    Decided October 18, 2011
   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:
    In the Matter of Town of Wallkill, Respondent, v Civil Service Employees Association, Inc. (Local 1000, AFSCME, AFL-CIO, Town of Wallkill Police Department Unit, Orange County Local 836), et al., Appellants.
    Submitted July 18, 2011;
    decided October 18, 2011
   Motion by the New York State Public Employment Relations Board 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 19 copies filed within 30 days.


text:
    In the Matter of Lorraine Wetzel, Appellant, v Town of Orangetown et al., Respondents.
    Submitted June 20, 2011;
    decided October 18, 2011
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that dismissed the appeal from Supreme Court’s order denying appellant’s motion for reargument, 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:
    Denice LaBarca Zito, Appellant, v Edward Jastremski et al., Respondents.
    Submitted July 18, 2011;
    decided October 18, 2011
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Supreme Court’s denial of appellant’s motion to renew, 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.


author: Smith, J.

text:
    [959 NE2d 460, 935 NYS2d 523]
    New York Coalition for Quality Assisted Living, Inc., Appellant, v MFY Legal Services, Inc., et al., Respondents.
    Argued September 6, 2011;
    decided October 20, 2011

      APPEARANCES OF COUNSEL

      O’Connell & Aronowitz, Albany (Jane Bello Burke, Jeffrey J. Sherrin and Aaron Mensh of counsel), for appellant.

      Dewey & LeBoeuf LLP, New York City (John M. Aerni and Richard Caplan of counsel), and Debvoise & Plimpton LLP (Maura K. Monaghan, Maria C. Rivera, Amanda D. Zakowich and Nicholas C. Tompkins of counsel) for respondents.

      Wilmer Cutler Pickering Hale & Dorr LLP, New York City (Michael G. Bongiorno, David F. Olsky and Adriel I. Cepeda Derieux of counsel), for Disability Advocates, Inc. and another, amici curiæ.

      Greenberg Traurig, LLP, New York City (William War go and Alan Mansfield of counsel), for Center for Constitutional Rights and others, amici curiæ.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff New York Coalition for Quality Assisted Living, Inc. (NYCQAL) is a not-for-profit association of members who operate adult homes and assisted living facilities that are regulated pursuant to 18 NYCRR parts 485 through 487. As relevant here, 18 NYCRR 485.14 governs visitor access to adult-care facilities, including access by defendants MFY Legal Services, Inc. (MFY) and Coalition of Institutionalized Aged and Disabled, Inc. (CIAD), which provide legal and advocacy services, respectively, to adult home residents. MFY and CIAD are registered with the Department of Health (DOH) pursuant to 18 NYCRR 485.14 (j).

NYCQAL, claiming that MFY and CLAD members routinely ran afoul of the state visitor access regulations, drafted proposed access guidelines to “clarify” NYCQAL procedures in allowing visitor access. After receiving suggestions from representatives from the Department of Health and the New York State Commission on Quality of Care and Advocacy for Persons with Disabilities, NYCQAL finalized its own access guidelines. Among other things, these guidelines call for facility representatives to operate as intermediaries between resident advocates and residents, prohibit advocates from accessing the facility unless their purpose is to visit a particular resident, and permit NYC-QAL members to restrict access for those who, in their view, fail to comply with the guidelines.

Asserting that MFY and CIAD representatives were refusing to abide by NYCQAL guidelines, NYCQAL commenced this action seeking a judgment declaring, among other things, that its guidelines were enforceable and enjoining MFY and CLAD from violating such guidelines. MFY and CIAD moved to dismiss the complaint for failure to state a cause of action and for a declaration that the access guidelines are illegal and unenforceable. NYCQAL then moved for summary judgment.

Supreme Court granted NYCQAL’s motion, declared the guidelines enforceable and enjoined MFY and CIAD from violating them (2009 NY Slip Op 31953[U] [2009]). It held that NYC-QAL’s guidelines supplemented, rather than supplanted, 18 NYCRR 485.14. The Appellate Division reversed, granted MFY’s and CIAD’s motion and declared the guidelines unenforceable, holding that they conflicted with 18 NYCRR 485.14 (70 AD3d 568 [2010]). This Court granted leave and we now affirm.

The Appellate Division properly concluded that the guidelines impermissibly restrict advocate access to facility residents and violate 18 NYCRR 485.14 and the DOH’s interpretation of that regulation. The DOH explained in a December 2003 letter to Administrators that although advocates must sign a visitor’s log or similar record identifying themselves and their affiliation, they need not state the purpose of the visit or the residents they intend to see. Thus, the Appellate Division had a sound basis for concluding that the guidelines, which call for facility representatives to serve as intermediaries between advocates and the residents and prohibit advocates from walking through the facility without the intention of visiting with a particular resident, conflict with the regulations and the DOH’s interpretation of them.

Likewise, the Appellate Division properly concluded that the guideline providing that a visitor’s failure to comply with any of the guidelines would “constitute reasonable cause to restrict access” (guidelines § D [4]) conflicts with 18 NYCRR 485.14 (g). That regulation states that the “operator may restrict or prohibit access to the facility or interfere with confidential visits with residents by individuals who the operator has reasonable cause to believe would directly endanger the safety of [its] residents.” It cannot reasonably be argued that every violation of NYCQAL’s guidelines, no matter how tangential such violations may be to the safety of residents of NYCQAL facilities, would “directly endanger” the safety of those residents.

Smith, J.

(dissenting). The guidelines plaintiff has adopted do not seem to me inconsistent with a fair reading of the relevant Department of Health regulation, 18 NYCRR 485.14. Apparently, the Department saw no inconsistency either: It reviewed and commented on the guidelines before they took effect, and did not raise the objections that defendants raise. While those objections are based on legitimate concerns, plaintiffs members have legitimate concerns also, and the balance to be struck between the two should be decided by the Department, not by the courts.

The governing statute, Social Services Law § 461-a (3) (b) (ii) and (iii), says that the assisted living facilities that make up plaintiffs membership shall not “restrict or prohibit the access to the facility nor interfere with . . . confidential visits with residents” by advocacy organizations like defendants. 18 NYCRR 485.14 implements the statute, saying that a facility operator “shall not restrict or prohibit access to the facility” by such organizations (18 NYCRR 485.14 [a] [2], [3]), specifying hours in which access must be permitted (18 NYCRR 485.14 [b]), authorizing operators to require visitors to sign in (18 NYCRR 485.14 [c]), protecting the rights of residents against unwanted intrusion by visitors (18 NYCRR 485.14 [e], [f]) and permitting operators to restrict or prohibit access “by individuals who the operator has reasonable cause to believe would directly endanger the safety of such residents” (18 NYCRR 485.14 [g]). Neither the statute nor the regulation, however, can be read to mean that literally all limitations on access not expressly permitted by the text are forbidden. Obviously, the operators can impose some reasonable limitations — requiring visitors to enter by certain doors, to behave in an orderly manner, to stay away from rooms where confidential records are kept and so forth. This dispute concerns whether the particular limitations that plaintiffs guidelines impose are permissible.

The main substantive differences between the parties, as far as I can tell, boil down to these: defendants want to visit without disclosing to the operator’s employees which residents they are visiting; to go directly to a resident’s room, without first having an employee announce them and ask whether the visit is welcome; and to enter a facility without having a particular resident in mind, to find out if there are some who want to talk to them. Plaintiffs members do not want defendants to do these things.

I can see both sides of the argument. I appreciate the need to protect vulnerable people from abuse by an operator who may be more interested in saving money than in providing good care; but I can also understand that the activities of patient advocates with a strong sense of their mission could be burdensome and disruptive. More specifically, I see the point of allowing advocates to visit without disclosing who their clients are, but I doubt whether that is really possible in a residential care facility; I am prepared to believe that some residents will be better served if an advocate is allowed to come in unannounced, but I can also believe that some residents will be annoyed and made uncomfortable when that happens; and I see obvious advantages and disadvantages to allowing advocates to walk through a facility looking for potential clients.

I think we should let the Department sort these complicated problems out. If the Department wants to enact regulations that would explicitly give defendants and similar organizations the kind of access they are asking for, the statute seems broad enough to authorize it. But the Department has adopted no such regulations, and it evidently does not read the regulations it has adopted as prohibiting what plaintiff has done. Plaintiff sent these guidelines to the Department in draft form, and a Department official went through them line by line, without raising the objections defendants are raising. This evidence of the Department’s interpretation of its own regulations seems much more persuasive to me than two seemingly contradictory letters — one favorable to plaintiffs position, one to defendants’ — issued by the Department several years ago, on the same general subject.

Chief Judge Lippman and Judges Ciparick, Graffeo, Pigott and Jones concur; Judge Smith dissents in an opinion in which Judge Read concurs.

Order affirmed, without costs, in a memorandum.


text:
    Assured Guaranty (UK) Ltd., in the Right of Itself and of Orkney Re II PLC, Respondent, v J.P. Morgan Investment Management Inc., Appellant.
    Submitted October 17, 2011;
    decided October 20, 2011
   Motion by Securities Industiy and Financial Markets Association et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 19 copies filed within seven days.


text:
    Assured Guaranty (UK) Ltd., in the Right of Itself and of Orkney Re II PLC, Respondent, v J.P. Morgan Investment Management Inc., Appellant.
    Submitted October 17, 2011;
    decided October 20, 2011
   Motion by New York State Common Retirement Fund et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 19 copies filed within seven days.


text:
    In the Matter of Ronald J. Chisena, a Suspended Attorney, Appellant. Grievance Committee for the Tenth Judicial District, Respondent.
    Decided October 20, 2011
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Daniel Costigan, Respondent, v Elizabeth A. Renner, Appellant.
    Submitted August 15, 2011;
    decided October 20, 2011
   Motion for reargument of motion for leave to appeal denied with $100 costs and necessary reproduction disbursements [see 17 NY3d 704 (2011)].


text:
    In the Matter of County of Erie, Respondent, v Civil Service Employees Association, Local 815, Appellant.
    Submitted August 1, 2011;
    decided October 20, 2011
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument or, in the alternative, leave to appeal to the Court of Appeals, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise granted.


text:
    In the Matter of Robert Davis, Appellant, v Brian Fischer, as Commissioner of Correctional Services, Respondent.
    Submitted August 8, 2011;
    decided October 20, 2011
   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:
    Thomas E. Dombrowski, Respondent, v Raymond W. Bulson, Appellant.
    Submitted September 12, 2011;
    decided October 20, 2011
   Motion to vacate this Court’s August 25, 2011 preclusion order granted.


text:
    Patricia Kane et al., Respondents, v John F. Galtieri, Appellant, et al., Defendant.
    Submitted August 1, 2011;
    decided October 20, 2011
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Laurence L. Leff, Ph.D., as Administrator of the Estate of Eve Lewis, Deceased, et al., Appellants, v TIAA-CREF Life Insurance Company, Respondent.
    Submitted August 8, 2011;
    decided October 20, 2011
   Motion for reargument of motion for leave to appeal denied [see 17 NY3d 788 (2011)].


text:
    Marist College et al., Plaintiffs, v Chazen Environmental Services, Inc., Defendant and Third-Party Plaintiff-Appellant, et al., Defendants. Brush & Weaving Corporation, Doing Business as Blocksom & Co., Third-Party Defendant-Respondent.
    Submitted July 25, 2011;
    decided October 20, 2011
   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:
    Barbara Osarczuk et al., Appellants, v Associated Universities, Incorporated, Commonly Known as Brookhaven National Laboratory, Respondent. (And a Third-Party Action.)
    Submitted August 22, 2011;
    decided October 20, 2011
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v Robert Guy Dickinson, Appellant.
    Submitted October 11, 2011;
    decided October 20, 2011
   Motion by New York State Defenders Association for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    The People of the State of New York, Respondent, v Western Express International Inc. et al., Defendants, and Lyndon Roach, Appellant.
    Submitted October 17, 2011;
    decided October 20, 2011
   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 appellant Lyndon Roach on the appeal herein.


text:
    In the Matter of Stephen Rosenblum, Respondent, v New York City Conflicts of Interest Board et al., Appellants.
    Submitted October 17, 2011;
    decided October 20, 2011
   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 19 copies filed within seven days.


text:
    In the Matter of State of New York, Respondent, v Shannon S., Appellant.
    Submitted August 1, 2011;
    decided October 20, 2011
   Motion for leave to appeal granted. Motion for poor person relief granted.


text:
    In the Matter of the Claim of William B. Taylor, Appellant, v Rochester City School District et al., Respondents. Workers’ Compensation Board, Respondent.
    Submitted August 1, 2011;
    decided October 20, 2011
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Terrace Court, LLC, Appellant, v New York State Division of Housing and Community Renewal, Respondent. Robert Katel et al., Intervenors-Respondents.
    Submitted September 6, 2011;
    decided October 20, 2011
   Motion to strike exhibits A1-A9 to appellant’s reply brief denied.


text:
    [957 NE2d 1149, 933 NYS2d 645]
    John F. Smith et al., Respondents, v Marijane Reilly, Appellant.
    Decided October 25, 2011
    APPEARANCES OF COUNSEL

      Bond, Schoeneck & King, PLLC, Syracuse (Adam P Mastroleo of counsel), for appellant.

      Brindisi, Murad, Brindisi, Pearlman, Julian & Pertz, Utica (Stephanie A. Palmer of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, defendant’s motion for summary judgment dismissing the complaint granted and the certified question answered in the negative.

Defendant’s submissions establish that she had no knowledge of her dog’s alleged propensity to interfere with traffic. Defendant testified that the dog had never before chased cars, bicycles or pedestrians or otherwise interfered with traffic. Testimony that the dog, on three to five occasions, escaped defendant’s control, barked, and ran towards the road is insufficient to establish a triable issue of material fact (see Collier v Zambito, 1 NY3d 444, 446 [2004]).

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

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


text:
    [957 NE2d 1150, 933 NYS2d 646]
    Deborah I. Gravius, Appellant, v County of Erie, Respondent.
    Decided October 25, 2011

      APPEARANCES OF COUNSEL

      Santarpia Law, Buffalo (Sabatino C. Santarpia of counsel), for appellant.

      Jeremy A. Colby, County Attorney, Buffalo (Brian R. Liebenow of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), appeal dismissed, with costs, upon the ground that the two-Justice dissent at the Appellate Division is not on a question of law (see CPLR 5601 [a]).

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


text:
    In the Matter of Anthony WW. and Others, Alleged to be the Children of a Mentally Ill Parent. St. Lawrence County Department of Social Services, Appellant; Michael WW., Respondent. In the Matter of Anthony WW. and Others, Alleged to be the Children of a Mentally Ill Parent. St. Lawrence County Department of Social Services, Appellant; Karen WW., Respondent.
    Submitted August 15, 2011;
    decided October 25, 2011
   Motions for leave to appeal denied. Motions for a stay dismissed as academic.


text:
    In the Matter of William R. Baker, Appellant, v Tiffany M. Spurgeon, Respondent.
    Submitted August 15, 2011;
    decided October 25, 2011
   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:
    George J. Beraka, M.D., Respondent, v Danielle Biton et al., Appellants.
    Decided October 25, 2011
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies in this civil action from the order of the Appellate Term (see NY Const, art VI, § 3 [b]; CPLR 5601).


text:
    In the Matter of Michael Diederich, Jr., Individually and on Behalf of All Taxpayers of the County of Rockland, Appellant, et al., Petitioner, v Christopher St. Lawrence, Defendant, and Holland & Knight, LLP, et al., Respondents.
    Submitted August 22, 2011;
    decided October 25, 2011
   Motion for reconsideration of this Court’s June 28, 2011 dismissal order denied [see 17 NY3d 782 (2011)]. Motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument or, in the alternative, leave to appeal to the Court of Appeals, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Kenneth Entler, Appellant, v Eric Koch et al., Defendants, and Boy Scouts of America, Respondent.
    Submitted August 8, 2011;
    decided October 25, 2011
   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:
    Betty Floyd, Appellant, v State of New York Division of Human Rights, Respondent.
    Submitted August 8, 2011;
    decided October 25, 2011
   On the Court’s own motion, appeal dismissed, without costs, 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 (see CPLR 5601). Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


text:
    Glacial Aggregates LLC, Respondent, v Town of Yorkshire, Appellant.
    Decided October 25, 2011
   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 John Jay College of Criminal Justice of the City University of New York. River Center LLC et al., Appellants, v Dormitory Authority of the State of New York, Respondent.
    Submitted June 20, 2011;
    decided October 25, 2011
   Motion for reargument of motion for leave to appeal denied [see 16 NY3d 889 (2011)].


text:
    Kai Lin, Appellant, v Strong Health et al., Respondents. (And Another Action.)
    Submitted August 1, 2011;
    decided October 25, 2011
   Motion, insofar as it seeks leave to appeal from the Appellate Division order that modified Supreme Court’s order settling the record on appeal, dismissed upon the ground that such order does not finally determine the actions within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Kathleen Karlsberg, Appellant, v Tax Appeals Tribunal of the State of New York et al., Respondents.
    Decided October 25, 2011
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Marko S., Also Known as Marko Alexander S., Also Known as Marko A., Respondent, v Heather S., Also Known as Heather Kim S., Appellant.
    Submitted August 22, 2011;
    decided October 25, 2011
   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:
    The People of the State of New York, Respondent, v Feoid Haffiz, Appellant.
    Submitted September 12, 2011;
    decided October 25, 2011
   Motion to vacate this Court’s August 25, 2011 dismissal order granted [see 17 NY3d 812 (2011)].


text:
    The People of the State of New York, Respondent, v Saleem Khan, Appellant.
    Submitted August 29, 2011;
    decided October 25, 2011
   Motion to strike portions of respondent’s brief denied.


text:
    In the Matter of Robert M. Scarano, Jr., Appellant, v City of New York et al., Respondents.
    Submitted August 1, 2011;
    decided October 25, 2011
   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:
    Sona Shah, Appellant, v Wilco Systems, Inc., Respondent.
    Submitted August 8, 2011;
    decided October 25, 2011
   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:
    Weaver Street Properties, LLC, Appellant, v Cold Stone Creamery, Inc., Respondent.
    Submitted August 22, 2011;
    decided October 25, 2011
   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:
    [958 NE2d 118, 934 NYS2d 84]
    In the Matter of the Claim of Gregory W. Collins, Respondent, v Dukes Plumbing and Sewer Service, Inc., Appellant, et al., Respondent. Workers’ Compensation Board, Respondent.
    Argued October 18, 2011;
    decided November 15, 2011
    APPEARANCES OF COUNSEL

      Wolff, Goodrich & Goldman, LLP, Syracuse (Robert E. Geyer, Jr., of counsel), for appellant.

      Eric T. Schneiderman, Attorney General, New York City (Steven C. Wu, Barbara D. Underwood and Benjamin N. Gutman of counsel), for Workers’ Compensation Board, respondent.

      Grey & Grey, LLP, Farmingdale (Robert E. Grey of counsel), and Oot & Stratton, East Syracuse, for Gregory W. Collins, respondent.

      Grey & Grey, LLP, Farmingdale (Robert E. Grey of counsel), for New York State AFL/CIO, amicus curiæ.
   OPINION OF THE COURT

Order affirmed, with costs (see Matter of Raynor v Landmark Chrysler, 18 NY3d 48 [2011] [decided today]).

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


text:
    [958 NE2d 118, 934 NYS2d 84]
    In the Matter of the Claim of Harvey Hardy, Claimant, v TRICO et al., Appellants, et al., Respondent. Workers’ Compensation Board, Respondent.
    Decided November 15, 2011
    APPEARANCES OF COUNSEL

      Williams & Williams, Buffalo (Jared L. Garlipp of counsel), for appellants.

      Eric T. Schneiderman, Attorney General, New York City (Steven C. Wu, Barbara D. Underwood, Benjamin N. Gutman and Carol Fischer of counsel), for Workers’ Compensation Board, respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs (see Matter of Raynor v Landmark Chrysler, 18 NY3d 48 [2011] [decided today]).

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


text:
    [958 NE2d 119, 934 NYS2d 85]
    In the Matter of the Claim of Bob Parkhurst, Claimant, v United Rentals Aerial Equipment, Inc., et al., Appellants. Workers’ Compensation Board, Respondent. In the Matter of the Claim of James Arthur Robinson, Claimant, v Gould Pumps ITT et al., Appellants. Workers’ Compensation Board, Respondent.
    Argued October 18, 2011;
    decided November 15, 2011

      APPEARANCES OF COUNSEL

      Buckner & Kourofsky, LLP, Rochester (Jacklyn M. Penna of counsel), for appellants.

      Eric T. Schneiderman, Attorney General, New York City (Steven C. Wu, Barbara D. Underwood and Benjamin N. Gutman of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs (see Matter of Raynor v Landmark Chrysler, 18 NY3d 48 [2011] [decided today]).

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


text:
    [958 NE2d 545, 934 NYS2d 367]
    In the Matter of the Claim of Larry J. Salgy, Claimant, v Halsted Communications et al., Appellants, et al., Respondent. Workers’ Compensation Board, Respondent.
    Decided November 15, 2011

      APPEARANCES OF COUNSEL

      Williams & Williams, Buffalo (Jared L. Garlipp of counsel), for appellants.

      Eric T. Schneiderman, Attorney General, New York City (Steven C. Wu, Barbara D. Underwood, Benjamin N. Gutman and Carol Fischer of counsel), for Workers’ Compensation Board, respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs (see Matter of Raynor v Landmark Chrysler, 18 NY3d 48 [2011] [decided today]).

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


text:
    [958 NE2d 545, 934 NYS2d 367]
    The People of the State of New York, Respondent, v Ermal Qoshja, Appellant.
    Argued October 13, 2011;
    decided November 15, 2011

      APPEARANCES OF COUNSEL

      Office of the Appellate Defender, New York City (Richard M. Greenberg and Lisa A. Packard of counsel), for appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City (Patricia Curran and Alan Gadlin of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the matter remitted to that court for further proceedings in accordance with this memorandum.

The Appellate Division’s summary decision and order leaves it unclear whether the panel reached the merits of defendant Ermal Qoshja’s claim or predicated its affirmance on the waiver of appeal. We remit to the Appellate Division to clarify this question and, if appropriate, to consider the merits. We repeat what we said in People v Callahan (80 NY2d 273, 285 [1992]):

“[I]n cases where there has been a bargained-for waiver of the right to appeal and the intermediate appellate court determines that the judgment of conviction should be affirmed, it would be helpful if the intermediate appellate court would specify whether its disposition is based on the existence of an enforceable waiver or instead on the merits of the defendant’s appellate claims. Such specificity would facilitate further appellate review and minimize unnecessary remittals.”

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

Order reversed, etc.


text:
    [958 NE2d 891, 934 NYS2d 763]
    U.S. Electronics, Inc., Appellant, v Sirius Satellite Radio, Inc., Respondent.
    Argued October 18, 2011;
    decided November 15, 2011
    APPEARANCES OF COUNSEL

      Schlam Stone & Dolan, LLP, New York City (Richard H. Dolan, Andrew S. Harris and Samuel L. Butt of counsel), for appellant.

      Kramer Levin Naftalis & Frankel, LLP, New York City (Michael S. Oberman, Peter A. Abruzzese, Timothy P. Harkness, Karen S. Kennedy and Ashley S. Miller of counsel), for respondent.

      Louis B. Kimmelman, New York City, Louis Epstein, Kathleen M. Scanlon and John D. Roesser for Association of the Bar of the City of New York, amicus curiæ.
   OPINION OF THE COURT

Memorandum.

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

Petitioner U.S. Electronics, Inc. (USE) seeks to vacate a unanimous arbitration award in favor of Sirius Satellite Radio, Inc. (Sirius) arising out of a breach of contract dispute. USE, which had a nonexclusive agreement with Sirius to distribute radio receivers, claims that Honorable William Sessions, the chairman of the arbitration panel, failed to disclose relationships of interest that affected the impartiality and propriety of the arbitration process. Specifically, that his son, Congressman Peter Sessions, had publicly advocated a merger between Sirius and XM Satellite Radio, Inc. (XM); and that his son was a close political ally of Congressman Darrell Issa, the founder and director of Directed Electronics, Inc. (DEI), a competitor of USE in radio receiver distribution.

As this matter affects interstate commerce, the vacatur of the arbitration award is governed by the Federal Arbitration Act (see Matter of Diamond Waterproofing Sys., Inc. v 55 Liberty Owners Corp., 4 NY3d 247, 252 [2005]) which provides, in pertinent part:

“(a) In any of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration — . . .
“(2) where there was evident partiality or corruption in the arbitrators, or either of them” (9 USC § 10 [a] [2] [emphasis added]).

In Commonwealth Coatings Corp. v Continental Casualty Co. (393 US 145 [1968]), the United States Supreme Court was asked to consider the “evident partiality” standard by a petitioner seeking to vacate an arbitration award after learning that an arbitrator on the panel had a significant business relationship, spanning four to five years, with a party to the hearing. In finding evident partiality, Justice Black reasoned that arbitrators — like judges who must recuse themselves for even the slightest interest that is “likely to influence improperly a judicial officer in the discharge of his duty” (393 US at 148)— “must be unbiased but also must avoid even the appearance of bias” (id. at 150). In a concurring opinion, Justice White remarked that he would not hold so broadly because upholding arbitrators to the standards of judges would automatically “disqualify the best informed and most capable potential arbitrators” (id.).

In Morelite Constr. Corp. (Div. of Morelite Elec. Serv., Inc.) v New York City Dist. Council Carpenters Benefit Funds (748 F2d 79 [2d Cir 1984]), the United States Court of Appeals for the Second Circuit declined to follow the opinion of Commonwealth, concluding that it did not have binding effect. Instead, the court fashioned a reasonable person standard, stating that evident partiality “will be found where a reasonable person would have to conclude that an arbitrator was partial to one party to the arbitration” (748 F2d at 84). The court reasoned that evident partiality was a stringent standard that could not be satisfied by a mere appearance of bias, but also recognized that proof of actual bias is rarely adduced. Accordingly, the reasonable person standard struck the proper balance so that “courts may refrain from threatening the valuable role of private arbitration in the settlement of commercial disputes, and at the same time uphold their responsibility to ensure that fair treatment is afforded those who come before them” (id.).

As a result, there is a plethora of case law from the Second Circuit adhering to the reasonable person standard (see Local 814, Intl. Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am. v J & B Sys. Installers & Moving, Inc., 878 F2d 38 [2d Cir 1989]; Lucent Tech. Inc. v Tatung Co., 379 F3d 24 [2d Cir 2004]; Applied Indus. Materials Corp. v Ovalar Makine Ticaret Ve Sanayi, A.S., 492 F3d 132 [2d Cir 2007]; Ecoline, Inc. v Local Union No. 12 of Intl. Assn. of Heat & Frost Insulators & Asbestos Workers, AFL-CIO, 271 Fed Appx 70 [2d Cir Mar. 26, 2008]).

In light of this settled law, we adopt the Second Circuit’s reasonable person standard and apply it when we are asked, as in this case, to consider the federal evident partiality standard of 9 USC § 10. Consequently, the Appellate Division erred by imposing upon USE a “burden of proving by clear and convincing evidence that any impropriety or misconduct of the arbitrator prejudiced its rights” (73 AD3d 497, 498 [1st Dept 2010]). No such standard can be gleaned from federal precedent. However, the court correctly determined that there was no basis to vacate the arbitration award.

“A party moving to vacate an arbitration award has the burden of proof, and the showing required to avoid confirmation is very high” (Ecoline, 271 Fed Appx at 72). USE’s claims of bias, premised on attenuated matters and relationships, are not sufficient. That Chairman Sessions’ son publicly endorsed the Sirius-XM merger had no impact on the merits of the separate and distinct breach of contract matter. Moreover, the purported connection between Chairman Sessions and Congressman Issa through his son’s political relationship is too tenuous to impute partiality or bias to the chairman (Transportes Coal Sea De Venezuela C.A. v SMT Shipmanagement & Transp. Ltd., 2007 WL 62715, *3, 2007 US Dist LEXIS 1802, *9 [SD NY Jan. 9, 2007] [“the interest or bias . . . must be direct, definite and capable of demonstration rather than remote, uncertain, or speculative”]). This would be a far different case if USE could allude to a personal or business relationship between Chairman Sessions and Congressman Issa; or if his son had a prominent role at Sirius or DEI (see Morelite, 748 F2d at 84). However, absent such a showing, these allegations, without more, amount to speculation of bias (see Local 814, 878 F2d at 41).

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Carlos Abreu, Appellant, v Norman R. Bezio, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
    Decided November 15, 2011
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, as untimely (see CPLR 5513 [a]).


text:
    In the Matter of Alan W. Dale, Appellant, v John M. York, Sheriff, Respondent.
    Submitted September 6, 2011;
    decided November 15, 2011
   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:
    Michael Grucci, Appellant, v Christine Grucci, Respondent.
    Submitted October 17, 2011;
    decided November 15, 2011
   Motion to vacate this Court’s September 21, 2011 dismissal order granted [see 17 NY3d 856 (2011)].


text:
    In the Matter of North Syracuse Central School District, Appellant, v New York State Division of Human Rights, Respondent.
    Submitted October 31, 2011;
    decided November 15, 2011
   Motion by Advocates for Children of New York, Inc., et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 19 copies filed within seven days.


text:
    The People of the State of New York, Respondent, v Latisha Bowden, Appellant.
    Submitted October 24, 2011;
    decided November 15, 2011
   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 Douglas Duart, Appellant.
    Submitted August 29, 2011;
    decided November 15, 2011
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    The People of the State of New York, Respondent, v Calvin Mays, Appellant.
    Submitted October 31, 2011;
    decided November 15, 2011
   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:
    Robert Snyder, Appellant, et al., Plaintiff, v Allstate Insurance Company, Respondent.
    Submitted July 11, 2011;
    decided November 15, 2011
   Motion for reargument of motion for leave to appeal denied [see 17 NY3d 748 (2011)].


text:
    [958 NE2d 897, 934 NYS2d 768]
    City School District of the City of New York, Appellant, v Colleen McGraham, Respondent.
    Argued October 12, 2011;
    decided November 17, 2011

      APPEARANCES OF COUNSEL

      Michael A. Cardozo, Corporation Counsel, New York City (Stephen J. McGrath, Cheryl Payer and Leonard Koerner of counsel), for appellant.

      Maria Elena Gonzalez, New York City, and Richard E. Casagrande for respondent.
   OPINION OF THE COURT

Memorandum.

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

Respondent, a 36-year-old tenured high school teacher, was the subject of disciplinary charges pursuant to Education Law § 3020-a as a result of her improper conduct with respect to a 15-year-old male student. Respondent corresponded with the student electronically outside of school hours — sometimes late at night — about a variety of personal matters and tried to discuss with him the nature of their relationship, which, in her view, was potentially romantic. There was, however, no physical contact, let alone a physical relationship, between the two and none of her communications were of a sexual nature. They never met outside of school grounds.

The hearing officer found respondent guilty of three of the five specifications preferred against her and determined that she engaged in inappropriate communications of an intimate nature with the student, constituting conduct unbecoming her position as a teacher. In determining the appropriate penalty, the hearing officer considered that respondent was remorseful for her conduct and that she sought therapy soon after her behavior came to light. The hearing officer did not believe that respondent would repeat such conduct and imposed a penalty of a 90-day suspension without pay and reassignment to a different school upon her reinstatement. Petitioner commenced this proceeding pursuant to CPLR 7511 to vacate the arbitration award, arguing that the penalty imposed was irrational and contrary to the public policy of protecting children.

Education Law § 3020-a (5) limits judicial review of a hearing officer’s determination to the grounds set forth in CPLR 7511. Where, as here, parties are subject to compulsory arbitration, the award must satisfy an additional layer of judicial scrutiny — it “must have evidentiary support and cannot be arbitrary and capricious” (Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]).

Contrary to petitioner’s argument, the arbitration award does not violate public policy. Courts will only intervene in the arbitration process in those “cases in which public policy considerations, embodied in statute or decisional law, prohibit, in an absolute sense, particular matters being decided or certain relief being granted by an arbitrator” (Matter of Sprinzen [Nomberg], 46 NY2d 623, 631 [1979]). It cannot be disputed that the State has a public policy in favor of protecting children, but this broad, well-settled principle is not the type of absolute prohibition from arbitrating a “particular” matter necessary to invoke the public policy exception and to overturn the arbitral resolution. Looking at the award on its face, it cannot be said that either statutory or common law prohibits the penalty imposed by the hearing officer.

Nor is the award arbitrary and capricious or irrational. The hearing officer engaged in a thorough analysis of the facts and circumstances, evaluated respondent’s credibility and arrived at a reasoned conclusion that a 90-day suspension and reassignment was the appropriate penalty. It was rational, under the circumstances, for the hearing officer to find that respondent’s actions constituted serious misconduct, but that she was remorseful and her actions were unlikely to be repeated, such that termination was not mandated. That reasonable minds might disagree over what the proper penalty should have been does not provide a basis for vacating the arbitral award or refashioning the penalty.

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

Order affirmed, with costs, in a memorandum.

       [1] Respondent’s employment was terminated in July 2009 because she allowed her teacher’s certification to lapse. However, since petitioner seeks her termination under section 3020-a in an effort to prevent her from being in a position to obtain future employment with the Department of Education, this appeal is not moot (see e.g. Matter of Brooklyn Audit Co. v Department of Taxation & Fin., 275 NY 284, 286 [1937]).


text:
    [958 NE2d 548, 934 NYS2d 370]
    In the Matter of Lafayette D. Young, Jr.
    Decided November 17, 2011

      APPEARANCES OF COUNSEL

      Lafayette D. Young, Jr., appellant pro se.

      Robert H. Tembeckjian, New York City, for New York State Commission on Judicial Conduct.
   OPINION OF THE COURT

On the Court’s own motion, it is determined that Honorable Lafayette D. Young, Jr. is suspended, with pay, effective immediately, from the office of Justice of the Macomb Town Court, St. Lawrence County, pending disposition of his request for review of a determination by the State Commission on Judicial Conduct.

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


text:
    In the Matter of Jack Davis, Appellant, v Brian Fischer, as Commissioner of Correctional Services, et al., Respondents.
    Submitted September 26, 2011;
    decided November 17, 2011
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    Susan M. Denaro, Respondent, v Robert J. Denaro, Appellant.
    Submitted September 26, 2011;
    decided November 17, 2011
   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 Miladin Dobric, Appellant, v Park Len North Owner, Inc., et al., Respondents.
    Submitted September 6, 2011;
    decided November 17, 2011
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain it.


text:
    Claudia Evart, Appellant, v Park Avenue Chiropractic, P.C., et al., Respondents.
    Submitted August 29, 2011;
    decided November 17, 2011
   Motion for leave to appeal denied. Cross motion for the imposition of sanctions denied.


text:
    Lance International, Inc., Appellant, v First National City Bank, Respondent.
    Submitted September 12, 2011;
    decided November 17, 2011
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain this motion for leave to appeal from the order of the Appellate Division where the appeal to the Appellate Division was from an order entered on an appeal from another court (see NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]).


text:
    In the Matter of the Claim of Anthony P. Messina, Respondent, v Hudson News Company et al., Appellants, et al., Respondent. Workers’ Compensation Board, Respondent.
    Decided November 17, 2011
   Chief Judge Lippman taking no part.


text:
    The People of the State of New York ex rel. Justo Richards, Appellant, v Bruce Yelich, as Superintendent of Bare Hill Correctional Facility, Respondent.
    Submitted September 6, 2011;
    decided November 17, 2011
   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:
    Carmen Tejeda, Respondent, v Cherise M. Dyal, M.D., et al., Appellants.
    Submitted September 19, 2011;
    decided November 17, 2011
   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 Leon Wright, Appellant, v Gloria Veniszee, Respondent.
    Submitted September 6, 2011;
    decided November 17, 2011
   On the Court’s own motion, appeal dismissed, without costs, 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 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.


author: Ciparick, J.

text:
    [958 NE2d 905, 934 NYS2d 776]
    The People of the State of New York, Respondent, v Daniel Thomas, Appellant.
    Argued October 20, 2011;
    decided November 21, 2011

      APPEARANCES OF COUNSEL

      Simpson Thacher & Bartlett LLP, New York City (Ian R. Dattner of counsel), and Office of the Appellate Defender (Joseph M. Nursey and Richard M. Greenberg of counsel) for appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City (Jared S. Wolkowitz and Richard Nahas of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

At about 3:40 a.m. on June 10, 2006, Oscar Magallanes was accosted by two men, on the landing outside the front door of 124 East 103rd Street, in Manhattan. As he put his key into the lock, the men forced him to the ground. One attacker held Magallanes down, while the other went through the pockets of his jeans, taking his cell phone, as well as a $20 bill and a $1 bill from his wallet. The landing was well-lit, and Magallanes had no difficulty seeing the faces of the two men, with whom he remonstrated before they took off, westbound, along 103rd Street towards Park Avenue.

At about the same time, Police Officer Francisco Leon and his partner were driving north on Park Avenue when they noticed two men — Daniel Thomas and Victor Cruz — running, shoulder-to-shoulder, westbound on 103rd Street, turning their heads backwards as they ran. When the men saw the officers, they slowed to a walking pace, and the officers confronted them. Officer Leon asked Thomas for identification, which Thomas produced, but also displaying a credit card bearing a name different from his own. Thomas was unable to explain the origins of the credit card, and he and Cruz were arrested.

At the precinct, a search of Cruz yielded a cell phone, a $20 bill and a $1 bill. Meanwhile, Magallanes had reported the robbery to the police. As Police Officer Christopher Diakonikolas was preparing to leave the precinct to investigate, he saw Thomas and Cruz, and noticed the cell phone, which had a sticker on it. At the scene of the robbery, Diakonikolas interviewed Magallanes, who gave him a description of the cell phone, consistent with what Diakonikolas had seen at the precinct.

Thomas and Cruz were brought to the crime scene for a “showup,” at which Magallanes identified them as the men who had robbed him. Magallanes also identified his cell phone, which had been found in Cruz’s possession.

Cruz pleaded guilty to one count of robbery in the second degree. Thomas elected to go to trial. Following a suppression hearing, Supreme Court ruled that the police lacked probable cause to arrest Thomas after he was unable to explain the credit card, and suppressed Magallanes’s showup identification of Thomas as the fruit of an illegal arrest. Magallanes would, however, be allowed to testify about his showup identification of Cruz. An independent source hearing was also held, and Supreme Court ruled that Magallanes would be permitted to identify Thomas in court.

At trial, Magallanes testified that he had identified Cruz at a showup. He made an in-court identification of Cruz, through a photograph, as the man who had rifled through his pockets and taken his cell phone and cash. The jury heard that Magallanes’s cell phone had been found on Cruz. Magallanes also made an in-court identification of Thomas as the person who had held him down during the robbery. Thomas presented no evidence.

At the close of testimony, Thomas objected to the testimony concerning the showup, citing People v Monroe (40 NY2d 1096 [1977]) for the proposition that identification of a codefendant who is not on trial is necessarily irrelevant and inadmissible. He requested that the testimony be stricken or a mistrial granted. Supreme Court denied Thomas’s motion.

During the People’s summation, the prosecutor mentioned Magallanes’s showup identification of Cruz as the man who had taken his cell phone, as evidence that his courtroom recognition of Thomas was accurate. Thomas raised no specific objection to this part of the summation.

The jury found Thomas guilty of robbery in the second degree. Appealing the judgment of conviction, Thomas argued, among other things, that the evidence of the showup identification of Cruz was inadmissible. The Appellate Division ruled that any error was harmless, and affirmed Supreme Court’s judgment (68 AD3d 685 [2009]). One Justice dissented, and granted Thomas leave to appeal to this Court. We now affirm, although our reasoning differs somewhat from that of the Appellate Division.

Thomas’s reliance on People v Monroe is misplaced. In Monroe, we held that trial “testimony by one of the witnesses that he had identified one of the robbers not on trial, bolstered by one of the police officers on the same issue,” was wrongly admitted (40 NY2d at 1098 [emphasis added]). Monroe does not stand for the proposition that the admission of evidence of a witness’s identification of a codefendant not on trial is improper. To the extent that some Appellate Division decisions suggest otherwise, they are in error.

Nor is the case before us governed by the well-established restrictions in New York on third-party testimony concerning an eyewitness’s pretrial identification of a defendant, known as the Trowbridge rule (People v Trowbridge, 305 NY 471 [1953]; see also People v Buie, 86 NY2d 501, 509-510 [1995]). Here, it was Magallanes himself who testified, not a third party.

Moreover, the concerns that underlie Trowbridge do not apply in the situation presented here. The repetition of an identification by a third party may

“improperly influence the jury’s belief in the reliability of the identification. . . . The testimony of the third party is not probative of whether the defendant was the person who committed the crime, but it could at best establish that the eyewitness, prior to trial, identified the defendant in the presence of others” (People v Bolden, 58 NY2d 741, 743 [1982, Gabrielli, J., concurring]).

By contrast, Magallanes’s testimony concerning his identification of Cruz was probative of whether Thomas had attacked Magallanes. This is because Magallanes’s accuracy in identifying the person who, it turned out, had his cell phone was relevant to whether the conditions on the landing at 124 East 103rd Street were conducive to observing the other attacker and accurately identifying him at trial. Thus, Supreme Court did not abuse its discretion in refusing to strike this material testimony or grant a mistrial.

Ciparick, J.

(dissenting). Because I believe Supreme Court abused its discretion in allowing the jury to consider identification evidence concerning complainant’s prior out-of-court identification of defendant’s alleged accomplice, I respectfully dissent.

In the early morning hours of June 10, 2006, complainant was returning to his home in upper Manhattan after an evening socializing with friends. As complainant attempted to enter his apartment, located on East 103rd Street between Lexington and Park Avenues, defendant and another man named Cruz allegedly tackled him from behind on his front door landing. Complainant, who was wearing headphones and listening to music at the time, neither saw nor heard the two men approach him. During the attack, the men allegedly pinned complainant, face up, to the ground. According to the complainant, Cruz rummaged through his pockets, removing $21 and a cell phone, while defendant forcefully held complainant in place. At trial, complainant testified that the incident lasted “less than a minute.” Complainant further explained that, after the attack, defendant and Cruz headed west on 103rd Street toward Park Avenue with their backs facing him. He pleaded with defendant and Cruz to return his phone, but the two declined to turn around and engage with complainant. Complainant identified defendant in court during the trial. He had never seen defendant and Cruz before the attack and there were no other eyewitnesses to the robbery.

There were some inconsistencies in the proof adduced at trial. For example, shortly after the incident, complainant called 911. He described the man later identified as Cruz as Hispanic and the man later identified as defendant as black. Complainant told the 911 dispatcher that he believed both men were in their early 20s and that defendant was wearing a white shirt. Complainant could not recall what Cruz was wearing. Although complainant testified at trial that he had no difficultly seeing defendant and Cruz because the area near his apartment was well lit and their unconcealed faces were within an arm’s length of complainant’s face at the time of the attack, the evidence before the jury nonetheless established that defendant, in fact, was almost 40 years old and was wearing a dark shirt when the police arrested him later that evening. Furthermore, contrary to complainant’s testimony, the arresting officer at trial stated that he was familiar with 103rd Street between Lexington and Park Avenues, which he described as “not well lit” and “fairly dark.”

Moreover, according to the arresting officer, both defendant and Cruz were apprehended together on 103rd Street and Park Avenue, after the police had observed them running together. A command log, admitted into evidence at trial, however, indicated that Cruz — who was in possession of complainant’s property at the time of the arrest — had been stopped a block away on 104th Street and Park Avenue.

In any event, following their arrest, complainant identified defendant and Cruz in a police-arranged showup identification procedure. In an omnibus motion, defendant moved to suppress complainant’s pretrial identification of defendant. After a suppression hearing, Supreme Court granted the motion. Prior to the commencement of defendant’s trial, defense counsel moved to exclude complainant’s pretrial identification of Cruz as well. Counsel argued that the court should “preclude the Prosecutor from asking about the show-up [identification] of . . . Cruz because [the jury is] going to speculate that [defendant] was there as well.” Counsel contended that such speculation would unfairly prejudice defendant. Supreme Court denied the motion.

During the trial, the People elicited extensive evidence pertaining to complainant’s pretrial identification of Cruz. Complainant explained that the responding officers told him that he would be asked to make an identification. Shortly thereafter, an unmarked black car arrived in front of complainant’s apartment building, which again was described by him as well lit. A man emerged from the back seat of the vehicle who complainant identified as Cruz. Complainant, who estimated that he was standing approximately 20 feet from Cruz, stated that he had no doubt that Cruz was the individual who had rifled through his pockets and stole his belongings.

Following the close of proof, defendant renewed his objection to the admission of Cruz’s pretrial identification, albeit for different reasons. This time counsel, citing People v Monroe (40 NY2d 1096 [1977]), argued that the evidence should be stricken because “in a severed trial, . . . the [identification] evidence of the co-defendant [who is] not on trial is irrelevant and thus inadmissible.” Supreme Court denied the motion.

At summation, the People, in arguing that the proof established beyond a reasonable doubt that defendant was the perpetrator, heavily relied on complainant’s pretrial identification of Cruz. The People suggested that complainant’s in-court identification of defendant was accurate because “he’s one for one . . . Cruz has [complainant’s] property on him and [complainant] gets it back that night. So he’s one for one.”

■ Counsel again renewed her objection to the admission of complainant’s pretrial identification of Cruz after the court submitted the case to the jury. In denying defendant’s motion at that juncture, the court reasoned that the evidence was relevant since, “[a]fter all, the complainant’s ability to observe and remember were crucial issues in this particular case.”

“In New York, the general rule is that all relevant evidence is admissible unless its admission violates some exclusionary rule” (People v Scarola, 71 NY2d 769, 777 [1988], citing People v Alvino, 71 NY2d 233, 242 [1987]). “Evidence is relevant if it has any tendency in reason to prove the existence of any material fact, i.e., it makes determination of the action more probable or less probable than it would be without the evidence” (id.). It is well settled, however, that “[n]ot all relevant evidence is admissible as of right” (id.). “Even where technically relevant evidence is admissible, it may still be excluded by the trial court in the exercise of its discretion if its probative value is substantially outweighed by the danger that it will unfairly prejudice the other side or mislead the jury” (id. [emphasis added]).

Applying this standard to the circumstances of this case, it is argued that complainant’s pretrial identification of Cruz was material or relevant in that it established that the conditions on the landing of complainant’s building at the time of the robbery enabled him to observe defendant and accurately identify him at trial (see majority mem at 926-927; see generally People v Wilder, 93 NY2d 352, 357 [1999]). In a proper case, evidence of a witness’s identification of an accomplice not on trial may be admissible, but not here. Here, the probative value of complainant’s pretrial identification of Cruz was substantially outweighed by the unfair prejudice the admission of this evidence had on defendant, further compounded by its exploitation during the People’s summation.

To begin, this was a one-witness identification case. The perpetrators of the crime attacked complainant from behind in the middle of the night and complainant did not see or hear them approach. According to complainant, the robbery lasted less than a minute and when the perpetrators fled, complainant could no longer see their faces. Furthermore, complainant described defendant as a black male in his early 20s wearing a white shirt. Defendant was actually close to 40 years old and wearing a dark shirt the night the robbery took place. Moreover, there was conflicting testimony concerning the lighting conditions of the crime scene. The evidence was also inconsistent as to whether Cruz, who was in possession of complainant’s cell phone, was arrested alongside defendant or a block apart after the crime took place. Under these circumstances, where the proof introduced at trial is anything but overwhelming, the People’s heavy reliance on the accuracy of complainant’s pretrial identification of Cruz unduly prejudiced defendant. Since counsel lodged an objection to the admission of this evidence at the close of proof on relevancy grounds, at a time when Supreme Court could correct the error (see People v Gray, 86 NY2d 10, 19 [1995]), Supreme Court abused its discretion as a matter of law in failing to strike complainant’s testimony on this issue (see e.g. People v Rosado, 273 AD2d 325, 326-327 [2d Dept 2000]; cf. Wilder, 93 NY2d at 358).

For these reasons, I also disagree with the conclusion reached by the majority at the Appellate Division that any error in the admission of complainant’s pretrial identification of Cruz was “harmless” (People v Thomas, 68 AD3d 685, 685 [1st Dept 2009]), as the evidence of guilt in this one-witness identification case was clearly not overwhelming.

Accordingly, I would vote to reverse the order of the Appellate Division and grant defendant a new trial.

Judges Graffeo, Read, Smith and Pigott concur; Judge Ciparick dissents and votes to reverse in an opinion in which Chief Judge Lippman and Judge Jones concur.

Order affirmed in a memorandum.


text:
    [959 NE2d 511, 935 NYS2d 574]
    Superior Officers Council Health & Welfare Fund et al., Appellants, v Empire HealthChoice Assurance, Inc., Doing Business as Empire BlueCross BlueShield, Respondent.
    Decided November 21, 2011

      APPEARANCES OF COUNSEL

      Mirkin & Gordon, P.C., Great Neck (Joel Spivak, Donna M. Cliff and Stephen F. Gordon of counsel), for appellants.

      Gibson, Dunn & Crutcher LLP, New York City (Randy M. Mastro and Jonathan D. Fortney of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

The Appellate Division properly construed the plain language of the agreement and determined that plaintiffs’ failure to adopt a drug formulary bars them from sharing in certain rebates that defendant received from prescription drug manufacturers. Additionally, plaintiffs fail to state a cause of action for breach of fiduciary duty separate and apart from their breach of contract claim.

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:
    In the Matter of Bronx Committee for Toxic Free Schools et al., Respondents, v New York City School Construction Authority et al., Appellants.
    Submitted September 12, 2011;
    decided November 21, 2011
   Motion by the Real Estate Board of New York, 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 19 copies filed within 30 days.


text:
    J. Jeffrey Craven, Appellant, v John C. Rigas et al., Respondents.
    Submitted August 15, 2011;
    decided November 21, 2011
   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:
    Jo-Fra Properties, Inc., Appellant, v Leland Bobbe et al., Respondents.
    Submitted August 29, 2011;
    decided November 21, 2011
   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:
    Nella Manko, Appellant, v Lenox Hill Anesthesiology, PLLC, et al., Respondents.
    Decided November 21, 2011
   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:
    Nella Manko, Appellant, v Lenox Hill Hospital, Respondent.
    Decided November 21, 2011
   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:
    Nella Manko, Appellant, v Lenox Hill Hospital, Respondent.
    Submitted August 15, 2011;
    decided November 21, 2011
   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:
    In the Matter of Max F., Jr., a Child Alleged to be Neglected. Nassau County Department of Social Services, Respondent; Emma F.-G., Appellant. (And Other Proceedings.)
    Submitted September 6, 2011;
    decided November 21, 2011
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceedings within the meaning of the Constitution. Motion for a stay dismissed as academic.


text:
    The People of the State of New York, Respondent, v Corey Gamble, Appellant.
    Submitted November 14, 2011;
    decided November 21, 2011
   Motion for reargument denied [see 17 NY3d 852 (2011)].


text:
    The People of the State of New York, Appellant, v Lamarr Reid, Respondent.
    Submitted September 6, 2011;
    decided November 21, 2011
   Motion to strike appellant’s appendix etc. denied.


text:
    Lillian Roberts, as Executive Director of District Council 37, American Federation of State, County and Municipal Employees, AFL-CIO, et al., Appellants, v Health and Hospitals Corporation et al., Respondents. Daniel Dromm, Member of New York City Council, District 25, et al., Appellants, v New York City Health and Hospitals Corporation, Respondent. In the Matter of Sean Fitzpatrick, as Business Representative and on Behalf of Local Union No. 3, I.B.E.W., AFL-CIO, et al., Appellants, v Health and Hospitals Corporation et al., Respondents.
    Submitted August 29, 2011;
    decided November 21, 2011
   Motion by New York City Municipal Labor Committee for leave to file a brief amicus curiae on the motions for leave to appeal herein granted and the brief is accepted as filed.


text:
    Donna M. Romeo, Appellant, v Ryan Barrella et al., Respondents, et al., Defendant.
    Submitted August 15, 2011;
    decided November 21, 2011
   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:
    Bart Shachnow, Respondent, v Jennifer Shafer, Appellant.
    Submitted September 12, 2011;
    decided November 21, 2011
   Motion, insofar as it seeks leave to appeal from the Appellate Division order of affirmance and dismissal, dismissed as untimely (see CPLR 5513 [b]; Eaton v State of New York, 76 NY2d 824 [1990]); 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.


text:
    Siegmund Strauss, Inc., Respondent, v East 149th Realty Corp., Defendant, and Windsor Brands, Ltd., et al., Appellants.
    Submitted May 23, 2011;
    decided November 21, 2011
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed Supreme Court’s judgment, granted; motion for leave to appeal otherwise dismissed upon the ground that the remaining portion of the Appellate Division order does not finally determine the action within the meaning of the Constitution.