author: Fahey, J. Stein, J.

text:
    [66 NE3d 663, 43 NYS3d 793]
    David Pullman, Appellant, v David A. Silverman, M.D., et al., Respondents.
    Argued September 13, 2016;
    decided November 1, 2016

      APPEARANCES OF COUNSEL

      Pollack, Pollack, Isaac & DeCicco, LLP, New York City {Brian J. Isaac and Michael H. Zhu of counsel), and Napoli Bern Ripka Shkolnik LLP for appellant.

      Aaronson Rappaport Feinstein & Deutsch, LLP, New York City {Elliott J. Zucker of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, defendant David A. Silverman, M.D.’s motion for summary judgment denied, and the certified question answered in the negative.

In this medical malpractice action, plaintiff alleged that defendant’s negligent administration of Lipitor and his negligent administration of the combination of Lipitor and azithromycin caused him to have a cardiac arrhythmia, which progressed to third-degree atrioventricular (AV) heart block necessitating the placement of a permanent pacemaker. Specifically, in his bill of particulars, plaintiff alleged in part that Dr. Silverman committed medical malpractice: “in negligently prescribing Lip-itor,” “in negligently prescribing Azithromycin,” and “in negligently failing to consider the possible adverse drug interactions in a patient on both Lipitor and Azithromycin.” Accordingly, as set forth in that bill of particulars, plaintiff alleged his AV heart block resulted from the negligent administration of the combination of Lipitor and azithromycin, and that taking both drugs concurrently proximately caused plaintiff’s injuries. Plaintiff did not, as suggested by the dissent, exclusively claim “in his bill of particulars that defendant ‘exacerbated [p]laintiff s adverse reaction to Lipitor by prescribing . . . Azithromycin.’ ”

Defendant moved for summary judgment solely on the issue of proximate cause and submitted a medical expert affidavit in support of his motion. While defendant’s expert characterized plaintiff’s allegations of malpractice as “center [ed] around an alleged contraindicated prescription by Dr. Silverman to plaintiff of Lipitor separately and/or in conjunction with Azi-thromycin,” it was clear from plaintiff’s bill of particulars— despite defendant’s somewhat confusing use of “and/or”—that the combination of both drugs established one basis for the claimed negligence. However, defendant’s expert failed to address the effect of azithromycin administration alone or in conjunction with Lipitor. To the contrary, defendant’s expert affidavit addressed azithromycin only in conclusory statements unsupported by any reference to medical research.

In opposition, plaintiff and his experts asserted, inter alia, that defendant’s expert’s affidavit did not adequately address the concurrent azithromycin prescription and did not cite to any medical research in support of his conclusions about the combined effect. Accordingly, plaintiff argued, defendant failed as a matter of law to eliminate all triable issues of fact regarding whether the combined effect of the drugs could have proximately caused plaintiff’s eventual heart block.

It is well settled that “the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Failure to make such prima facie “showing requires denial of the motion, regardless of the sufficiency of the opposing papers” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Establishing entitlement to summary judgment as a matter of law requires the defendant to “rebut[ ] with factual proof plaintiff’s claim of malpractice” (Alvarez, 68 NY2d at 325). “[B]are conclusory assertions . . . with no factual relationship to the alleged injury” are insufficient to “establish that the cause of action has no merit so as to entitle defendantf ] to summary judgment” (Winegrad, 64 NY2d at 853).

Here, defendant’s expert proffered only conclusory assertions unsupported by any medical research that defendant’s actions in prescribing both drugs concurrently did not proximately cause plaintiff’s AV heart block. These conclusory statements did not adequately address plaintiff’s allegations that the concurrent Lipitor and azithromycin prescriptions caused plaintiff’s injuries. By ignoring the possible effect of the azi-thromycin prescription, defendant’s expert failed to “tender [ ] sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez, 68 NY2d at 324) as to proximate causation and, as a result, defendant was not entitled to summary judgment. Because defendant failed to meet his prima facie burden, it is unnecessary to review the sufficiency of the plaintiff’s opposition papers (Winegrad, 64 NY2d at 853).

Fahey, J.

(concurring). Although I join the majority’s memorandum decision, I write separately to note that the Court takes no position on whether the Appellate Division correctly stated the standard governing the shifting of burden in a medical malpractice summary judgment motion. This issue was raised by the parties in their briefs, but not thoroughly discussed.

According to the decision below, if a defendant in a medical malpractice action establishes prima facie entitlement to summary judgment, by a showing either that he or she did not depart from good and accepted medical practice or that any departure did not proximately cause the plaintiff’s injuries, plaintiff is required to rebut defendant’s prima facie showing “with medical evidence that defendant departed from accepted medical practice and that such departure was a proximate cause of the injuries alleged” (Pullman v Silverman, 125 AD3d 562, 562 [1st Dept 2015] [emphasis added]). While this statement reflects First Department jurisprudence (see e.g. Kristal R. v Nichter, 115 AD3d 409, 411-412 [1st Dept 2014]; Bacani v Rosenberg, 74 AD3d 500, 501-502 [1st Dept 2010], lv denied 15 NY3d 708 [2010]), the Second Department has held since 2011 that if “a defendant physician, in support of a motion for summary judgment, demonstrates only that he or she did not depart from the relevant standard of care, there is no requirement that the plaintiff address the element of proximate cause in addition to the element of departure” (Stukas v Streiter, 83 AD3d 18, 24-25 [2d Dept 2011], disavowing Amsler v Verrilli, 119 AD2d 786 [2d Dept 1986]; see also e.g. Ahmed v Pannone, 116 AD3d 802, 805-806 [2d Dept 2014], lv dismissed 25 NY3d 964 [2015]; Makinen v Torelli, 106 AD3d 782, 783-784 [2d Dept 2013]). Rather, plaintiff “need only raise a triable issue of fact with respect to the element of the cause of action or theory of nonliability that is the subject of the moving party’s prima facie showing” (Stukas, 83 AD3d at 24). In short, there is an Appellate Division split. The other Departments of the Appellate Division side with the First (see e.g. Bagley v Rochester Gen. Hosp., 124 AD3d 1272, 1273-1274 [4th Dept 2015]; Longtemps v Oliva, 110 AD3d 1316, 1317-1318 [3d Dept 2013]).

The Stukas Court explained the Second Department’s rationale as follows:

“In the context of any motion for summary judgment, a party’s prima facie showing of entitlement to judgment as a matter of law shifts the burden to the nonmoving party, not to prove his or her entire case, as he or she will have the burden of doing at trial, but merely to raise a triable issue of fact with respect to the elements or theories established by the moving party. There is no valid reason for adopting a different rule in medical malpractice cases.” (Stukas, 83 AD3d at 25.)

The Second Department reasoned that the contrary rule, requiring the nonmoving party to raise a triable issue of fact with respect to an element upon which the moving party has not made a prima facie showing, is

“incompatible with the maxim that the moving party’s evidence must be viewed in the light most favorable to the nonmoving party, as well as the general principle that summary judgment is considered a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues of fact. It is neither logical nor fair to require the nonmoving plaintiff, who has previously alleged in the pleadings that the defendant’s departure was a proximate cause of the claimed injuries, to come forward with evidence addressing an element that was never raised by the moving defendant. To require a plaintiff to address both departure and causation in opposing a defendant physician’s prima facie showing as to departure only, conflates these two distinct elements, which have always been treated separately in our jurisprudence involving medical malpractice and negligence in general” (id. at 30).

As the Stukas Court noted (see id. at 23-24), the focus on specific rebuttal of a claim in the Second Department’s analysis is supported by our language in Alvarez v Prospect Hosp. (68 NY2d 320 [1986]). There we wrote that

“[i]n a medical malpractice action, a plaintiff, in opposition to a defendant physician’s summary judgment motion, must submit evidentiary facts or materials to rebut the prima facie showing by the defendant physician that he [or she] was not negligent in treating plaintiff so as to demonstrate the existence of a triable issue of fact” (id. at 324 [emphasis added]).

By contrast, opinions repeating the First Department’s standard largely do so without citation to Court of Appeals precedent. Amsler v Verrilli (119 AD2d 786 [2d Dept 1986]), which was expressly disavowed in Stukas, cited Zuckerman v City of New York (49 NY2d 557 [1980]), but that decision held that

“where the moving party has demonstrated its entitlement to summary judgment, the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure so to do, and the submission of a hearsay affirmation by counsel alone does not satisfy this requirement” (Zuckerman, 49 NY2d at 560 [emphasis added]).

Zuckerman did not speak to the burden-shifting issue that divides the Appellate Division.

The present appeal does not give the Court an opportunity to decide whether Stukas properly describes the law of medical malpractice summary judgment in New York. First, Pullman is not a case in which the Appellate Division required plaintiff to show a triable issue of fact with respect to an element on which it found defendant made no prima facie showing. Second, this Court holds that defendant failed to meet his burden, so that no burden-shifting is needed. The fact that I am joining the majority does not indicate my opinion on the resolution of the split among the Appellate Division Departments on this issue.

Stein, J.

(dissenting). I would affirm the order of the Appellate Division. Plaintiff’s allegations of malpractice “center[ed] around an alleged contraindicated prescription by Dr. Silver-man to plaintiff of Lipitor separately and/or in conjunction with Azithromycin.” As the majority recognizes, plaintiff claims that “defendant’s negligent administration of Lipitor and his negligent administration of the combination of Lipitor and azi-thromycin” caused his injuries (majority mem at 1061). The nature of this claim can be more fully understood when read in light of plaintiff’s more specific explanation in his bill of particulars that defendant “exacerbated [pjlaintiffs adverse reaction to Lipitor by prescribing the concurrent administration of Azithromycin.”

In my view, defendant met his burden of establishing prima facie entitlement to summary judgment. That is, “[a] fair reading of the [expert affidavit], [and] hospital records . . . compel the conclusion that no material triable issues of fact exist as to the claims of malpractice asserted against the defendant in the amended complaint as amplified by the bill of particulars” (Alvarez v Prospect Hosp., 68 NY2d 320, 325 [1986] [emphasis added]). The affidavit of defendant’s expert explains that no epidemiological studies even link Lipitor or other statins to plaintiff’s injury and that an isolated case report—which, as the expert noted, cannot demonstrate causation (see Cornell v 360 W. 51st St. Realty, LLC, 22 NY3d 762, 783 [2014])—show-ing that Lipitor, in combination with drugs other than azithro-mycin, caused a type of myopathy was not relevant because plaintiff’s medical records revealed that he did not have myopathy. The expert affidavit sufficiently demonstrated, for purposes of making a prima facie case, that plaintiff had no pertinent adverse reaction to Lipitor that could have been exacerbated by the prescription of azithromycin, which was the basis of plaintiff’s claim that the combination of drugs injured him. Contrary to the majority’s conclusion, the expert was not required to further “address the effect of azithromycin administration alone or in conjunction with Lipitor” (majority mem at 1062), which is the converse of plaintiff’s claim, as opposed to his actual claim.

With defendant having made a prima facie showing, the burden shifted to plaintiff to raise a triable issue of fact. Inasmuch as there is simply too great of an analytical gap between the data relied upon by plaintiff’s experts and their conclusion that Lipitor, alone or in conjunction with azithromy-cin, caused plaintiff’s injuries, defendant’s motion for summary judgment was properly granted (see Cornell, 22 NY3d at 781).

Chief Judge DiFiore and Judges Pigott, Fahey and Garcia concur; Judge Fahey in a separate concurring opinion; Judge Stein dissents and votes to affirm in an opinion in which Judges Rivera and Abdus-Salaam concur.

Order reversed, with costs, defendant David A. Silverman, M.D.’s motion for summary judgment denied, and certified question answered in the negative, in a memorandum.

       The issue of the proper medical malpractice summary judgment standard discussed in the concurrence is not before this Court, it was not briefed by the parties, and we do not address it.

       This Court appears to have applied the Stukas standard in our memorandum decision Orsi v Haralabatos (20 NY3d 1079 [2013]), in which defendants, through expert affidavits, met their burden on good and accepted medical practice, but failed to address proximate causation. Holding that plaintiff raised a triable issue of fact as to departure from good and accepted medical practice, we denied so much of defendants’ motion as sought summary judgment dismissing the medical malpractice cause of action against them. We did not require plaintiff to raise a triable issue of fact as to proximate causation as well, in order to withstand summary judgment.


source: Caselaw Access Project

license: Public Domain

text:
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text:
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text:
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Chief Judge DiFiore and Judges Rivera, Abdus-Salaam, Stein and Garcia concur.

Judges Pigott and Fahey taking no part.


text:
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text:
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11/29/16


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text:
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text:
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text:
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denied 11/4/16 (Rivera, J.)


text:
    People v Mujahid
   2d Dept: 142 AD3d 1185 (Kings)

denied 11/28/16 (Fahey, J.)


text:
    People v Nauheimer
   4th Dept: 142 AD3d 760 (Monroe)

denied 11/29/16 (Abdus-Salaam, J.)


text:
    People v Negron
   2d Dept: 142 AD3d 719 (Richmond)

denied 11/29/16 (Abdus-Salaam, J.)


text:
    People v Neree
   2d Dept: 142 AD3d 1026 (Suffolk)

denied 11/28/16 (Garcia, J.)


text:
    People v Ockrey
   2d Dept: 142 AD3d 511 (Kings)

denied 11/29/16 (DiFiore, Ch. J.)


text:
    People v Onikosi
   1st Dept: 140 AD3d 516 (NY)

denied 11/22/16 (Fahey, J.)


text:
    People v Palmer
   4th Dept: 142 AD3d 1381 (Monroe)

denied 11/30/16 (DiFiore, Ch. J.)


text:
    People v Paradiso
   App Div, 3d Dept: 2016 NY Slip Op 82923(U) (Albany)

dismissed 11/1/16 (Pigott, J.)


text:
    People v Peart
   3d Dept: 141 AD3d 939 (Albany)

denied 11/4/16 (Rivera, J.)


text:
    People v Petterson
   2d Dept: 141 AD3d 676 (Queens)

denied 11/30/16 (Fahey, J.)


text:
    People v Pierre
   2d Dept: 142 AD3d 566 (Nassau)

denied 11/23/16 (DiFiore, Ch. J.)


text:
    People v Porter
   App Div, 1st Dept: 2015 NY Slip Op 91553(U) (NY)

denied reconsideration 11/5/16 (Abdus-Salaam, J.)


text:
    People v Powell
   1st Dept: 140 AD3d 401 (Bronx)

denied 11/14/16 (DiFiore, Ch. J.)


text:
    People v Provet
   App Term, 1st Dept: 52 Misc 3d 144(A) (NY)

denied 11/21/16 (Stein, J.)


text:
    People v Ragland
   2d Dept: 136 AD3d 845 (Westchester)

denied 11/22/16 (Pigott, J.)


text:
    People v Ramos
   3d Dept: 142 AD3d 737 (Montgomery)

denied 11/10/16 (Fahey, J.)


text:
    People v Ramsaran
   3d Dept: 141 AD3d 865 (Chenango)

granted 11/28/16 (Pigott, J.)


text:
    People v Rhodes
   2d Dept: 142 AD3d 679 (Queens)

denied 11/21/16 (Stein, J.)


text:
    People v Rivenburgh
   App Div, 3d Dept: 2016 NY Slip Op 63361(U) (Ulster)

dismissed 11/1/16 (Fahey, J.)


text:
    People v Rivera
   2d Dept: 133 AD3d 894 (Nassau)

denied 11/28/16 (Rivera, J.)


text:
    People v Roberts (Kerri)
   1st Dept: 138 AD3d 461 (NY)

denied 11/1/16 (Pigott, J.)


text:
    People v Roberts (Kerri)
   1st Dept: 138 AD3d 461 (NY)

granted 11/1/16 (Pigott, J.)


text:
    People v Sanders
   County Ct, 6/15/16 (Oneida)

denied 11/22/16 (Fahey, J.)


text:
    People v Segura
   App Div, 2d Dept: 2016 NY Slip Op 79994(U) (Nassau)

dismissed 11/9/16 (DiFiore, Ch. J.)


text:
    People v Serrano
   App Term, 2d Dept, 9th & 10th Jud Dists: 53 Misc 3d 67 (Suffolk)

withdrawn 11/30/16 (DiFiore, Ch. J.)


text:
    People v Sherrod
   4th Dept: 136 AD3d 1353 (Erie)

denied reconsideration 11/22/16 (Garcia, J.)


text:
    People v Simmons
   2d Dept: 136 AD3d 640 (Westchester)

denied 11/22/16 (Pigott, J.)


text:
    People v Spann
   2d Dept: 142 AD3d 720 (Queens)

denied 11/21/16 (Pigott, J.)


text:
    People v Sposito
   3d Dept: 140 AD3d 1308 (Albany)

granted 11/10/16 (Pigott, J.)


text:
    People v Stepney
   App Div, 4th Dept, 8/31/16 (Onondaga)

dismissed 11/28/16 (Abdus-Salaam, J.)


text:
    People v Stokes
   3d Dept: 141 AD3d 1032 (Albany)

denied 11/30/16 (DiFiore, Ch. J.)


text:
    People v Sylvester
   App Term, 1st Dept: 52 Misc 3d 144(A) (NY)

denied 11/17/16 (DiFiore, Ch. J.)


text:
    People v Tai
   App Div, 1st Dept: 2016 NY Slip Op 69509(U) (NY)

denied reconsideration 11/4/16 (Rivera, J.)


text:
    People v Tai Chi Chuan
   App Div, 1st Dept: 2016 NY Slip Op 69509(U) (NY)

denied reconsideration 11/4/16 (Rivera, J.)


text:
    People v Taylor
   1st Dept: 134 AD3d 508 (NY)

denied 11/1/16 (Pigott, J.)


text:
    People v Tedesco
   4th Dept: 143 AD3d 1279 (Erie)

denied 11/23/16 (DiFiore, Ch. J.)


text:
    People v Tennessee
   3d Dept: 142 AD3d 739 (Ulster)

denied 11/1/16 (Fahey, J.)


text:
    People v Thomas
   2d Dept: 142 AD3d 511 (Kings)

denied 11/29/16 (DiFiore, Ch. J.)


text:
    People v Thompson
   App Term, 1st Dept: 52 Misc 3d 145(A) (NY)

denied 11/23/16 (DiFiore, Ch. J.)


text:
    People v Uribe
   2d Dept: 142 AD3d 680 (Queens)

denied 11/14/16 (DiFiore, Ch. J.)


text:
    People v Vanterpool
   1st Dept: 142 AD3d 870 (NY)

denied 11/29/16 (DiFiore, Ch. J.)


text:
    People v Vasquez
   1st Dept: 140 AD3d 571 (NY)

denied 11/8/16 (Garcia, J.)


text:
    People v Veliz
   2d Dept: 142 AD3d 630 (Kings)

denied 11/23/16 (DiFiore, Ch. J.)


text:
    People v Victor
   3d Dept: 139 AD3d 1102 (Chenango)

denied 11/10/16 (Garcia, J.)


text:
    People v Washington (Charles)
   2d Dept: 134 AD3d 1137 (Kings)

denied 11/8/16 (Garcia, J.)


text:
    People v Washington (Jarelle)
   2d Dept: 142 AD3d 1110 (Kings)

denied 11/23/16 (DiFiore, Ch. J.)


text:
    People v Weems (Solomon)
   4th Dept: 141 AD3d 1119 (Monroe)

denied 11/23/16 (DiFiore, Ch. J.) (Appeal No. 1)


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

denied 11/23/16 (DiFiore, Ch. J.) (Appeal No. 2)


text:
    People v Welch
   2d Dept: 142 AD3d 567 (Dutchess)

denied 11/1/16 (Pigott, J.)


text:
    People v Williams (DeAndre)
   App Div, 2d Dept: 2016 NY Slip Op 85221(U) (Westchester)

dismissed 11/8/16 (Rivera, J.)


text:
    People v Williams (Jaerue)
   2d Dept: 139 AD3d 885 (Westchester)

denied 11/22/16 (Fahey, J.)


text:
    People v Williams (Jojo)
   County Ct, 8/2/16 (Cortland)

denied 11/29/16 (DiFiore, Ch. J.)


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

denied reconsideration 11/21/16 (Pigott, J.)


text:
    People v Williams (Nicklas)
   3d Dept: 140 AD3d 1526 (Broome)

denied 11/22/16 (Garcia, J.)


text:
    People v Williams (Sean)
   2d Dept: 139 AD3d 766 (Kings)

denied 11/14/16 (DiFiore, Ch. J.)


text:
    People v Woods
   3d Dept: 141 AD3d 954 (Albany)

denied 11/8/16 (Garcia, J.)


text:
    People v Young
   4th Dept: 139 AD3d 1360 (Monroe)

denied 11/16/16 (Rivera, J.)

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


text:
    (November 1, 2016 through
    November 30, 2016)
    People v Perez
   1st Dept: 142 AD3d 410 (Bronx)

granted 11/29/16 (Gische, J.)


author: Rivera, J.

text:
    [66 NE3d 1084, 44 NYS3d 366]
    The People of the State of New York, Respondent, v Wilson J. Tardi, Appellant.
    Argued October 19, 2016;
    decided November 21, 2016
    APPEARANCES OF COUNSEL

      Phil Modrzynski, Buffalo, and Thomas J. Eoannou, Buffalo, for appellant.

      Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (.Matthew B. Powers and Michael J. Hillery of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant contends that the towing and inventory search of his vehicle by law enforcement officers, following his arrest for shoplifting, was unconstitutional. Store security had observed defendant—who was known to them as a shoplifter from prior incidents—park a vehicle in their parking lot, and security personnel had specifically requested that the police officers tow the vehicle upon defendant’s arrest.

Here, the police officers’ decision to tow defendant’s vehicle, which was parked in the same parking lot in which defendant was arrested, was properly made in accordance with “standard criteria” set forth in the police department’s written policy (Colorado v Bertine, 479 US 367, 375 [1987]). Those criteria, among other things, limit an officer’s discretion to tow a vehicle upon a driver’s arrest to situations in which such action is necessary to ensure the safety of the vehicle and its contents and where releasing the vehicle to an owner or designee is not otherwise appropriate. Upon defendant’s arrest, the vehicle would have been left unattended indefinitely in the complainant’s private parking lot, which had a history of vandalism, and the complainant requested that the police remove the vehicle. In our view, the officers’ decision to tow the vehicle was, therefore, consistent with a community caretaking function (see United States v Vladeff, 630 Fed Appx 998, 1000-1001 [11th Cir 2015]; United States v Moskovyan, 618 Fed Appx 331, 331 [9th Cir 2015] [“Police acting in a community caretaking capacity may impound an arrestee’s vehicle when the vehicle, if left unattended, risks being vandalized or stolen”]; United States v Arrocha, 713 F3d 1159, 1163 [8th Cir 2013]; United States v Ramos-Morales, 981 F2d 625, 626-627 [1st Cir 1992]; United States v Staller, 616 F2d 1284, 1289-1290 [5th Cir 1980]). Moreover, there is no indication that the officers suspected that they would discover evidence of further criminal activity in defendant’s vehicle, or that they towed the vehicle for that purpose (see Bertine, 479 US at 376). Under these particular circumstances, the officers’ exercise of their discretion to tow defendant’s vehicle, in accordance with department policy, was reasonable and lawful (see id. at 375 [the availability of less intrusive means does not render police action unreasonable]; People v Walker, 20 NY3d 122, 125 [2012] [law enforcement officials are not required, as a matter of constitutional law, to inquire as to whether an arrested individual can arrange for removal of a vehicle, or to contact the registered owner before impounding the vehicle]; United States v Moore, 655 Fed Appx 531, 532 [9th Cir 2016]; see also South Dakota v Opperman, 428 US 364, 368-369 [1976]).

Defendant’s remaining argument, challenging the propriety of the inventory search of his vehicle, is unpreserved (see People v John, 27 NY3d 294, 303 [2016]; People v Wallace, 27 NY3d 1037, 1038 [2016]).

Rivera, J.

(dissenting). This case asks us to consider whether the warrantless impoundment and inventory search of defendant’s vehicle upon his arrest for shoplifting comports with the Fourth Amendment. The undisputed facts establish that the vehicle’s search and seizure were not attendant to defendant’s arrest or a public safety interest. Defendant was not arrested while operating the vehicle, nor was he arrested for possession of a stolen car or violation of the vehicle and traffic laws. Furthermore, upon his arrest, the vehicle was parked unobtrusively and safely. On these facts, the tow and search of defendant’s vehicle was unreasonable.

The police may impound a vehicle without a warrant “[i]n the interests of public safety and as part of what the [United States Supreme] Court has called community caretaking functions” (South Dakota v Opperman, 428 US 364, 368 [1976] [internal quotation marks and citation omitted]). Specifically, police may “remove and impound automobiles which violate parking ordinances and which thereby jeopardize both the public safety and the efficient movement of vehicular traffic” (id. at 369). However, in order to minimize the potential abuse of what is ostensibly a public safety exception to the Fourth Amendment—under which “automobiles are frequently taken into police custody” (id. at 368)—impoundment of a vehicle must be “completely unrelated to an ongoing criminal investigation” (United States v Duguay, 93 F3d 346, 352 [7th Cir 1996]). Thus, “[a]n officer cannot reasonably order an impoundment in situations where the location of the vehicle does not create any need for the police to protect the vehicle or to avoid a hazard to other drivers” (Miranda v City of Cornelius, 429 F3d 858, 866 [9th Cir 2005]; see also United States v Pappas, 735 F2d 1232, 1234 [10th Cir 1984] [impoundment improper where car parked on private property and there was “no need for the impound and inventory search” since “Opperman cannot be used to justify the automatic inventory of every car upon the arrest of its owner”]).

Supreme Court cases provide examples of the proper limits on the caretaking function. In Opperman, the Court upheld the inventory search and impoundment of an abandoned car where the owner “was not present to make other arrangements for the safekeeping of his belongings” (428 US at 375). In Colorado v Bertine (479 US 367 [1987]), cited by the majority (majority mem at 1078), the car at issue had been impounded upon the driver’s arrest for driving while under the influence of alcohol, and the car was effectively abandoned in the middle of the road after its driver was arrested while driving it. Both cases squarely implicated the public safety and the efficient flow of traffic, neither of which is at issue in defendant’s case.

Here, defendant was arrested outside the store from which he had allegedly shoplifted, in a separate location from where his car was parked, and the car was unrelated to the underlying arrest. Moreover, the car was registered to defendant’s mother, a fact of which officers would have become immediately aware upon checking the license plate. The car’s position in the parking lot, therefore, neither jeopardized the “efficient movement of vehicular traffic,” since the car was stationed in a parking lot not obstructing traffic, nor was it a threat to public safety, since it was not on the side of the road creating a hazard to other drivers. To the extent the majority concludes that defendant left his car “unattended” (majority mem at 1078), this was only insofar as any car is unattended when its driver parks and goes into a store, and as such cannot justify the warrant-less search and seizure of a vehicle. Nor was the defendant’s car a “luxury” car (United States v Moskovyan, 618 Fed Appx 331, 331 [9th Cir 2015]) with an “appreciable risk of vandalism or theft” (United States v Staller, 616 F2d 1284, 1290 [5th Cir 1980]).

There is also no basis to conclude that defendant’s car was abandoned because, unlike in Opperman where the car was illegally parked overnight and collecting parking tickets over the course of many hours, defendant’s car had been in use just before his arrest and there is nothing in the record to suggest that the car would have remained in the lot indefinitely. Indeed, defendant’s mother, to whom the car was registered, or even defendant’s wife, could have come to retrieve the car.

Under these circumstances, there was no community caretak-ing justification for impounding defendant’s car. Absent a legitimate seizure of the car, the warrantless search of its contents was also unconstitutional (see People v Cantor, 36 NY2d 106 [1975]).

The Fourth Amendment cannot tolerate a practice of “impoundment upon arrest.” The community caretaking function must actually mean community caretaking, and cannot authorize police officers to search cars that are neither a threat to public safety nor a problem for members of the public. By failing to recognize this, the majority’s opinion undermines the Fourth Amendment’s protection of individual privacy from the state. I cannot agree to such erosion of this fundamental constitutional guarantee against unwarranted and unreasonable police invasions, and so I would reverse the Appellate Division.

Chief Judge DiFiore and Judges Pigott, Abdus-Salaam, Stein and Garcia concur; Judge Rivera dissents in an opinion; Judge Fahey taking no part.

Order affirmed, in a memorandum.

       Notably, even the local police procedure provided for inventory searches only upon legitimate, police-directed towing (Cheektowaga Police Department General Order 0-5-8 [Towing and Impoundment] at 2).


text:
    Citimortgage, Inc., Respondent, v Neil Baser et al., Appellants, et al., Defendants.
    Submitted August 29, 2016;
    decided November 21, 2016
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the action within the meaning of the Constitution.


text:
    Citimortgage, Inc., Respondent, v George Dulgeroff et al., Defendants. West Fork Capital Equities, LLC, Nonparty Appellant.
    Submitted August 29, 2016;
    decided November 21, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Nella Manko, Appellant, v Lenox Hill Hospital, Respondent.
    Decided November 21, 2016
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.

Judge Abdus-Salaam taking no part.


text:
    Nella Manko, Appellant, v Lenox Hill Hospital, Respondent.
    Submitted August 8, 2016;
    decided November 21, 2016
   Motion for reargument denied [see 27 NY3d 1146 (2016)].

Judge Abdus-Salaam taking no part.


text:
    John K. Renke II, Respondent, v Joyce Kwiecinski, Appellant.
    Submitted September 6, 2016;
    decided November 21, 2016
   Motion for reargument of motion for leave to appeal dismissed as untimely (see 22 NYCRR 500.24 [b]) [see 27 NY3d 1147 (2016)].


text:
    In the Matter of Joelle Savas, Respondent, v Daniel Joseph Bruen, Appellant.
    Submitted November 14, 2016;
    decided November 21, 2016
   Motion, insofar as it seeks leave to appeal from the May 2016 Appellate Division order reversing the June 2015 Supreme Court order and remitting to Supreme Court for a hearing, 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. Motion for poor person relief dismissed as academic. Motion for a stay dismissed as academic.


text:
    David Silverman et al., Appellants, v Gerald A. Doell, Respondent.
    Submitted August 29, 2016;
    decided November 21, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Marc Starr, Appellant, v Fuoco Group LLP et al., Defendants, and Eureka Capital Markets, LLC, et al., Respondents.
    Submitted August 29, 2016;
    decided November 21, 2016
   Motion for leave to appeal dismissed upon the ground that the Appellate Division order sought to be appealed from does not finally determine the action within the meaning of the Constitution and the stipulation does not qualify as a final judgment within the meaning of CPLR 5602 (a).(l) (ii) to bring up for review the prior nonfinal Appellate Division order because it was entered into without prejudice.


text:
    Marc Starr, Appellant, v Fuoco Group LLP et al., Defendants, and Eureka Capital Markets, LLC, et al., Respondents.
    Submitted September 12, 2016;
    decided November 21, 2016
   Motion by Public Investors Arbitration Bar Association for leave to appear amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    [66 NE3d 1088, 44 NYS3d 370]
    Ace Fire Underwriters Insurance Company, Care of Sedgwick CMS, Appellant, v Special Funds Conservation Committee, Respondent.
    Argued October 19, 2016;
    decided November 22, 2016

      APPEARANCES OF COUNSEL

      Stewart, Greenblatt, Manning & Baez, Syosset (Lisa Levine of counsel), for appellant.

      Steven M. Licht, Special Funds Conservation Committee, Albany (Jill B. Singer of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the matter remitted to Supreme Court for further proceedings in accordance with this memorandum.

A Coca-Cola Bottling Company employee sustained a work-related injury in March 2007 and was awarded workers’ compensation benefits. The benefits are payable by petitioner Ace Fire Underwriters Insurance Company, Coca-Cola’s workers’ compensation insurance carrier.

The employee was classified as having a permanent partial disability and the Workers’ Compensation Board held that his claim was subject to Workers’ Compensation Law § 15 (8). Under that provision, when an employee with a preexisting permanent physical injury sustains a compensable work-related injury that leads to a permanent disability significantly greater than that which would have resulted from the subsequent injury alone, the Special Disability Fund is responsible for reimbursing the workers’ compensation carrier for all medical and compensation benefits payable after the first 260 weeks of disability (see Workers’ Compensation Law § 15 [8] [d]). Section 15 (8) was intended to encourage employers to hire disabled employees (see Workers’ Compensation Law § 15 [8] [a]).

Based on section 15 (8), the injured employee’s workers’ compensation benefits in this case were, to the extent payable after the first 260 weeks of disability, reimbursable by the Special Disability Fund. In addition to receiving workers’ compensation benefits, the injured employee commenced a third-party personal injury action in Supreme Court. As relevant here, under Workers’ Compensation Law § 29 (1), if the injured employee elects to bring a third-party action, “the person, association, corporation or insurance carrier” that is liable for workers’ compensation and medical expenses is entitled to “a lien on the proceeds of any recovery” in the third-party action, less reasonable and necessary expenses. The “recovery shall be deemed for the benefit of such . . . person, association, corporation or carrier,” to the extent of the amount payable by the lienor (Workers’ Compensation Law § 29 [1]).

The same statute further provides that, when the third-party settlement is in an amount less than the benefits payable to the injured employee, it “shall be made only . . . with the written approval of the person, association, corporation, or insurance carrier liable to pay the same” (Workers’ Compensation Law § 29 [5]). However, such written approval “need not be obtained if the employee . . . obtain [s] a compromise order from a justice of the court in which the third-party action was pending” (Workers’ Compensation Law § 29 [5]). In other words, although the employee must obtain the written approval of the workers’ compensation carrier prior to entering a settlement, the failure to do so can be cured by the court ordering the carrier’s consent to the personal injury settlement, nunc pro tunc. Notably, neither section 29 (5) nor section 15 (8) specifically requires the carrier to obtain the Special Disability Fund’s approval prior to agreeing to a third-party settlement.

Here, as required by section 29, the injured employee sought and obtained Ace Fire’s approval prior to entering the settlement of the third-party action. Ace Fire, however, did not seek the Special Disability Fund’s written approval prior to settlement. When Ace Fire sought the Special Disability Fund’s retroactive consent, the Fund refused, asserting that Ace Fire had forfeited its right to reimbursement. Ace Fire then commenced this proceeding asking Supreme Court to compel the Special Disability Fund’s consent nunc pro tunc under Workers’ Compensation Law § 29 (5).

We have repeatedly recognized “that a statute . . . must be construed as a whole and that its various sections must be considered together and with reference to each other” (Matter of Shannon, 25 NY3d 345, 351 [2015] [internal quotation marks and citations omitted]). The language in section 29 (1) establishing what entities may be deemed lienors is essentially identical to the language in section 29 (5) referring to the entities whose consent to settlement is required and, if not obtained, can be compelled upon application to the court—i.e., the “person, association, corporation, or insurance carrier liable to pay” compensation benefits. Here, the parties do not dispute that the consent of the Special Disability Fund to settlement of the employee’s third-party action was required. Thus, assuming, for purposes of this appeal, that the Special Disability Fund is a lienor whose consent to settlement is required under Workers’ Compensation Law § 29 (1), we conclude that the carrier may seek to obtain the Fund’s consent from Supreme Court nunc pro tunc under section 29 (5). There is no principled basis for concluding that the Special Disability Fund’s consent is required as a lienor under one portion of the statute, but that the failure to obtain it cannot be cured, as it can for other lienors, under the same statute.

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

Order reversed, with costs, and matter remitted to Supreme Court, New York County, for further proceedings in accordance with the memorandum herein.


text:
    [66 NE3d 1090, 44 NYS3d 372]
    The People of the State of New York, Respondent, v Cristian Morales, Appellant.
    Argued November 17, 2016;
    decided December 15, 2016

      APPEARANCES OF COUNSEL

      Kent V. Moston, Legal Aid Society of Nassau County, Hemp-stead (Dori Cohen and Jeremy L. Goldberg of counsel), for appellant.

      Madeline Singas, District Attorney, Mineóla (Adam S. Charnoff, Tammy J. Smiley and Jason R. Richards of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

In October 2011, defendant was convicted, after a jury trial, of two counts of operating a motor vehicle while intoxicated and other related charges. After filing a notice of appeal and executing an affidavit in support of a motion seeking permission to proceed as a poor person, defendant was deported to Honduras in November 2011. In April 2015, almost 3V2 years later, defendant’s assigned appellate counsel filed a brief for defendant’s direct appeal. Appellate counsel noted in the brief that they had proceeded with defendant’s direct appeal “without his input,” as they were “not in possession of any current contact information for [defendant].”

The People moved to dismiss the appeal on the ground that defendant was deported for a reason unrelated to his conviction and thus, a reversal would have no effect on his ability to return to the jurisdiction to obey the mandate of the court. The People further moved on the additional grounds that defendant had failed to communicate with his assigned appellate counsel during the prosecution of the appeal and his existence and whereabouts were unknown. Defense counsel opposed the People’s motion to dismiss but did not offer any facts to rebut the People’s claims that defendant had failed to communicate with his assigned appellate counsel and that his whereabouts were unknown.

The Appellate Term granted the People’s motion and dismissed defendant’s direct appeal “without prejudice to appellant moving to reinstate the appeal should he return to this court’s jurisdiction” (2015 NY Slip Op 82166 [U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]).

In its order dismissing defendant’s appeal, the Appellate Term duly noted the People’s reliance in their motion on People v Serrano (45 Misc 3d 69 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). We recently reversed the intermediate appellate court’s decision in Serrano and held “that [People v] Ventura [(17 NY3d 675 [2011])] prohibits intermediate appellate courts from dismissing pending direct appeals due to the defendant’s involuntary deportation, regardless of the contentions raised by the defendant on appeal” (People v Harrison [Serrano], 27 NY3d 281, 284 [2016]). We further explained that “[o]ur holding in Ventura did not depend upon any causal relationship between the defendant’s conviction and deportation” {id. at 287).

Here, the Appellate Term erred as a matter of law insofar as it granted the People’s motion to dismiss defendant’s direct appeal from his judgment of conviction because he was involuntarily deported. This error requires reversal. We therefore remit the matter to the Appellate Term for its further consideration {see CPL 470.60 [1]).

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

Order reversed and case remitted to the Appellate Term, Ninth and Tenth Judicial Districts, for further proceedings in accordance with the memorandum herein.


text:
    [68 NE3d 42, 45 NYS3d 317]
    The People of the State of New York, Respondent, v Natalio Pastor, Appellant.
    Decided December 15, 2016

      APPEARANCES OF COUNSEL

      Robert S. Dean, Center for Appellate Litigation, New York City {Robin Nichinsky of counsel), for appellant.

      Darcel D. Clark, District Attorney, Bronx {Emily A. Aldridge of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant’s challenges to the validity of his guilty plea are unpreserved and unreviewable by this Court. Defendant had “an opportunity to seek relief from the sentencing court” by moving to withdraw his plea based on his alleged justification defense, and therefore the “narrow exception to the preservation requirement” does not apply (People v Conceicao, 26 NY3d 375, 381 [2015]). Defendant said nothing during the plea colloquy or the sentencing proceeding that negated an element of the crime or raised the possibility of a justification defense, and therefore People v Lopez (71 NY2d 662, 666 [1988]) is inapplicable.

Defendant’s further contention that the court failed to advise him of the immigration consequences of his plea is also unpreserved for appellate review. The court informed defendant during the plea colloquy that if he was not a citizen, he could face deportation as a result of his guilty plea. Defendant therefore was informed before he pleaded guilty of the possibility that he could be deported as a result of his plea, and if he was confused about that issue, he was obligated to move to withdraw his plea on that ground before the sentencing court (see People v Peque, 22 NY3d 168, 182-183 [2013], cert denied sub nom. Thomas v New York, 574 US —, 135 S Ct 90 [2014]). To the extent defendant contends that his attorney misadvised him about the immigration consequences of his plea, defendant must raise that claim by way of a CPL 440.10 motion.

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

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


text:
    [68 NE3d 43, 45 NYS3d 318]
    The People of the State of New York, Respondent, v Alfred Stewart, Appellant.
    Decided December 15, 2016

      APPEARANCES OF COUNSEL

      Seymour W. James, Jr., The Legal Aid Society, New York City {Ellen Dille of counsel), for appellant.

      Darcel D. Clark, District Attorney, Bronx {Lori Ann Far-rington of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the case remitted to Supreme Court for resentencing.

A defendant has the right to be present at all material stages of trial (see People v Ciaccio, 47 NY2d 431, 436 [1979]), including sentencing {see CPL 380.40 [1]). We recently held that a defendant who has been convicted of a felony may waive his right to be present at sentencing, but must do so “expressly” (People v Rossborough, 27 NY3d 485, 488 [2016]). The same principle applies in resentencing. The People do not contend otherwise, but insist that an inmate who wishes to waive his right to be present at resentencing should not be required to convey that waiver by personal appearance in court, and that defendant properly waived his right to be present by having his counsel speak on his behalf. Here, however, there is no record of any form of express waiver by defendant himself, whether oral or in writing, and, thus, the issue raised by the People is not presented. Nor in this case can waiver or forfeiture of the right to be present be inferred from defendant’s actions or inaction (see generally People v Corley, 67 NY2d 105, 109-110 [1986]; People v Stroman, 36 NY2d 939, 940 [1975]). Accordingly, defendant did not validly waive his right to be present.

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

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


text:
    [68 NE3d 83, 45 NYS3d 357]
    Rafael Batista, Appellant, v Manhattanville College et al., Respondents, et al., Defendant.
    Decided December 20, 2016

      APPEARANCES OF COUNSEL

      Pollack, Pollack, Isaac & DeCicco, LLP, New York City {Brian J. Isaac of counsel), for appellant.

      Lewis Johs Avallone Aviles, LLP, Islandia {Robert A. Lifson of counsel), for Manhattanville College, respondent.

      Burke, Conway, Loccisano & Dillon, White Plains {Thomas J. Burke and Martin Galvin of counsel), for TJR, Inc., 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, insofar as appealed from, modified, without costs, by granting plaintiff’s motion for partial summary judgment on the issue of liability on his Labor Law § 240 (1) claim against defendants Manhattanville College and TJR, Inc. and, as so modified, affirmed, and certified question answered in the negative. Defendants failed to raise a triable issue of fact whether the plaintiff was the sole proximate cause of his accident (see Barreto v Metropolitan Transp. Auth., 25 NY3d 426, 433-434 [2015]).

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


text:
    [68 NE3d 60, 45 NYS3d 335]
    The People of the State of New York, Appellant, v Jeffrey Bryant, Respondent.
    Decided December 20, 2016

      APPEARANCES OF COUNSEL

      Cyrus R. Vance, Jr, District Attorney, New York City (Joshua L. Haber and Hilary Hassler of counsel), for appellant.

      Robert S. Dean, Center for Appellate Litigation, New York City (David J. KLem of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the judgment of Supreme Court reinstated.

In October 2013, defendant was arrested for his involvement in the theft of 15 luxury cars from parking garages across Manhattan. In May 2014, defendant pleaded guilty to four counts of grand larceny in the fourth degree in full satisfaction of the indictment against him. The court accepted the People’s offer of 1 to 3 years’ incarceration per count, to run consecutively, resulting in an aggregate term of 4 to 12 years’ incarceration.

As relevant to this appeal, at the plea proceeding, the court explained that, by pleading guilty, defendant would be waiving certain rights including: the right to go to trial, the right to cross-examine witnesses, the right to testify, and the right to remain silent. The judge then took defendant’s allocution of the crimes. Acknowledging the defense’s receipt of the detailed written waiver, the following colloquy occurred:

“THE COURT: All right. Sir, you understand that also as a part of this you are waiving your right to appeal. You understand that this conviction, or these convictions will be final, that a court will not review what we have done here, other than some residual rights that remain?
“Do you understand that?
“THE DEFENDANT: Yes.
“THE COURT: You have gone over that with your attorney?
“THE DEFENDANT: Yes.
“THE COURT: There is a document entitled waiver of appeal. I see that you executed that document. Do you have any questions about it?
“THE DEFENDANT: No.”

The Appellate Division, with one Justice dissenting, found that “defendant’s waiver of his right to appeal was invalid” (People v Bryant, 137 AD3d 401, 401 [2016]). We disagree.

The allocution in this case was similar in effect to the allocution this Court found sufficient in both People v Nicholson (6 NY3d 248 [2006]) and People v Sanders (25 NY3d 337 [2015]). Here, the court separately explained to defendant the panoply of rights normally forfeited upon a guilty plea. After ensuring that defendant understood those rights, the judge next had defendant allocute to the facts of the crimes. Only after the al-locution did the court turn to the waiver of appeal. During the oral colloquy defendant stated he understood that he was “waiving [his] right to appeal” and “that this conviction, or these convictions will be final, that a court will not review what we have done here.” This verbal waiver was accompanied by a detailed written waiver which stated, among other things, that “the right to appeal is separate and distinct from other rights automatically forfeited upon a plea of guilty.” Thus, the record sufficiently demonstrates that defendant knowingly and intelligently waived his right to appeal.

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

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


text:
    Emil Chambliss, Appellant, v University Group Medical Associates et al., Respondents.
    Submitted September 26, 2016;
    decided December 20, 2016
   Motion, insofar as it seeks leave to appeal as against defendants South Island Medical Associates and Dr. Mark Joseph, dismissed as untimely (see CPLR 5513 [b]), as the prior motion for leave to appeal made at the Appellate Division was untimely as to them (see Arthur Karger, Powers of the New York Court of Appeals § 12:3 at 436-437 [3d ed rev 2005]); motion, insofar as it seeks leave to appeal as against defendants University Group Medical Associates and Dr. Steven Siegel, 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:
    Deborah Etzion, Appellant, v Rafael Etzion et al., Respondents.
    Submitted September 19, 2016;
    decided December 20, 2016
   Motion by Women’s Bar Association of the State of New York for leave to appear amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    In the Matter of Nancy Anastasia Gonos, Appellant, v Emmanuel Hadzipetros, Respondent.
    Submitted October 11, 2016;
    decided December 20, 2016
   Motion for reargument of motion for leave to appeal denied [see 27 NY3d 912 (2016)]. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Michael Grabell, Appellant, v New York City Police Department, Respondent.
    Submitted September 6, 2016;
    decided December 20, 2016
   Motion by Reporters Committee for Freedom of the Press et al. for leave to appear amici curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.

Judge Fahey taking no part.


text:
    In the Matter of Michael Grabell, Appellant, v New York City Police Department, Respondent.
    Submitted September 26, 2016;
    decided December 20, 2016
   Motion by New York Civil Liberties Union et al. for leave to appear amici curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.

Judge Fahey taking no part.


text:
    Johnathan Johnson, Appellant, v Theresa J. Casal, Respondent.
    Submitted October 17, 2016;
    decided December 20, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Johnathan Johnson, Appellant, v Brian Curtis et al., Respondents.
    Submitted October 17, 2016;
    decided December 20, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Johnathan Johnson, Appellant, v Maureen Sienko et al., Respondents.
    Submitted October 17, 2016;
    decided December 20, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Johnathan Johnson, Appellant, v William K. Suter et al., Respondents.
    Submitted October 11, 2016;
    decided December 20, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Donna M. Lattuca, Appellant, v John M. Lattuca, Respondent.
    Submitted August 8, 2016;
    decided December 20, 2016
   Motion for leave to appeal denied. The Court of Appeals takes this occasion to restate the rule that denial of a motion for leave to appeal is not equivalent to an affirmance and has no precedential value (see Matter of Marchant v Mead-Morrison Mfg. Co., 252 NY 284, 297-298 [1929]).


text:
    Donna M. Lattuca, Appellant, v John M. Lattuca, Respondent.
    Submitted August 15, 2016;
    decided December 20, 2016
   Motion by National Center for Law and Economic Justice et al. for leave to appear amici curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    Nella Manko, Appellant, v Dana Mannor et al., Respondents, et al., Defendants.
    Submitted October 11, 2016;
    decided December 20, 2016
   Motion for reargument of motion for leave to appeal dismissed as untimely (see Rules of Ct of Appeals [22 NYCRR] § 500.24 [b]) [see 15 NY3d 707 (2010)]. Motion for poor person relief dismissed as academic.

Judge Abdus-Salaam taking no part.


text:
    Nella Manko, Appellant, v Dana Mannor, et al., Respondents, et al., Defendants.
    Submitted November 7, 2016;
    decided December 20, 2016
   Motion for reconsideration of this Court’s May 11, 2010 dismissal order dismissed as untimely (see Rules of Ct of Appeals [22 NYCRR] § 500.24 [b]) [see 14 NY3d 880 (2010)]. Motion for poor person relief dismissed as academic.

Judge Abdus-Salaam taking no part.


text:
    Colleen F. Mayer, as Trustee on Behalf of Alanna Mayer and Another, Appellant, v Kristen M. Mayer et al., Respondents, et al., Defendants.
    Submitted September 26, 2016;
    decided December 20, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Lizzette Morales, Appellant, v New York City Housing Authority, Respondent.
    Submitted December 12, 2016;
    decided December 20, 2016
   Motion for reargument of motion for leave to appeal denied [see 28 NY3d 1023 (2016)].


text:
    In the Matter of Patricia A. and Others, Infants. Norman A. et al., Appellants; Administration for Children’s Services, Respondent.
    Submitted September 12, 2016;
    decided December 20, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v James Brown, Appellant.
    Submitted February 8, 2016;
    decided December 20, 2016
   Motion to expand the record on appeal denied.


text:
    The People of the State of New York, Appellant, v Dan Evans, Respondent.
    Submitted November 21, 2016;
    decided December 20, 2016
   Motion to dismiss the appeal granted and appeal dismissed upon the ground that the reversal by the Appellate Division was not on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal (CPL 450.90 [2] [a]).


text:
    State Farm and Casualty Company, Respondent, v Jennifer Guzman et al., Defendants, and Dulce Cabrera, Appellant.
    Submitted September 26, 2016;
    decided December 20, 2016
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as resolved the appeal from the Supreme Court order denying reargument and renewal, dismissed upon the ground that such portions of the order do not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Michael C. Weidner, Respondent, v Lisa Fix Weidner, Appellant.
    Submitted September 26, 2016;
    decided December 20, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Amtrust-NP SFR Venture, LLC, Respondent, v James Vazquez, Also Known as James Vasquez, Appellant, et al., Defendants.
    Submitted October 24, 2016;
    decided December 22, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Beltway Capital, LLC, Respondent, v Virginia Gutierrez et al., Defendants, and James Bianco et al., Appellants.
    Submitted October 17, 2016;
    decided December 22, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Consolidated Mortgage, LLC, Appellant, v Westport Golf Investors, LLC, et al., Defendants, and John F. Hall et al., Respondents. (And a Third-Party Action.)
    Submitted October 31, 2016;
    decided December 22, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Frank Garcia, Appellant, v Anthony Annucci, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondent. In the Matter of Frank Garcia, Appellant, v Anthony Annucci, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondent.
    Submitted October 31, 2016;
    decided December 22, 2016
   Reported below, 2016 NY Slip Op 85097(U).

Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Marita E. Hyman, Appellant, v Arthur Schwartz et al., Respondents. Marita E. Hyman, Appellant, v Arthur Schwartz, Respondent.
    Submitted October 24, 2016;
    decided December 22, 2016
   Reported below, 2016 NY Slip Op 74811(U); 2016 NY Slip Op 74812(U).

Motion for reargument of motion for leave to appeal denied [see 28 NY3d 901 (2016)].

Judge Stein taking no part.


text:
    Jack Kelly Partners LLC, Respondent, v Elsa Zegelstein et al., Appellants.
    Submitted October 24, 2016;
    decided December 22, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Constantine Jackson, Appellant, v Anthony Annucci, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondent.
    Submitted October 31, 2016;
    decided December 22, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.

Judge Fahey taking no part.


text:
    Loch Sheldrake Beach and Tennis Inc., Respondent, v Helen Akulich, Appellant.
    Submitted October 17, 2016;
    decided December 22, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Michael B. Oliver, Appellant, v Board of Assessors of the Towns of Champlain et al., Respondents.
    Submitted October 17, 2016;
    decided December 22, 2016
   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:
    The People of the State of New York, Respondent, v Nasean Bonie, Defendant. Dina Sforza, a Representative of News 12 the Bronx, L.L.C., Nonparty Appellant.
    Submitted November 7, 2016;
    decided December 22, 2016
   Motion for reargument denied [see 28 NY3d 956 (2016)].


text:
    The People of the State of New York, Respondent, v Kevin Johnson, Appellant.
    Submitted October 17, 2016;
    decided December 22, 2016
   Motion for leave to appeal dismissed upon the ground that appellant is not a party aggrieved (see CPLR 5511). Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York ex rel. Jesse Luscomb, Appellant, v Susan Kickbush, etc., Respondent.
    Submitted November 14, 2016;
    decided December 22, 2016
   Motion for leave to appeal dismissed upon the ground that it does not lie from the order of an individual Justice of the Appellate Division (see NY Const, art VI, § 3 [b]; CPLR 5602). Motion for poor person relief dismissed as academic.


text:
    Tanaysha T. et al., Appellants, v City of New York et al., Respondents, et al., Defendant.
    Submitted October 17, 2016;
    decided December 22, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Daisy Wright et al., Appellants, v Jewish Home Lifecare, Manhattan, et al., Respondents. (Proceeding No. 1.) In the Matter of Friends of P.S. 163, Inc., Appellant, v Jewish Home Lifecare, Manhattan, et al., Respondents. (Proceeding No. 2.)
    Submitted November 14, 2016;
    decided December 22, 2016
   Reported below, 2016 NY Slip Op 89616(U).

Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceedings within the meaning of the Constitution.


text:
    In the Matter of Jesse Friedman, Appellant, v Kathleen M. Rice, as Nassau County District Attorney, Respondent.
    Submitted December 19, 2016;
    decided January 5, 2017
   Motion by National Association of Criminal Defense Lawyers et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and an original and nine copies filed within seven days.


text:
    In the Matter of Regan U. Lally, Appellant, v Richard E. Aebly, Respondent.
    Submitted October 31, 2016;
    decided January 6, 2017
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York, Respondent, v Otis Boone, Appellant.
    Submitted January 3, 2017;
    decided January 5, 2017
   Motion by Legal Aid Bureau of Buffalo, Inc. for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and an original and nine copies filed within seven days.


text:
    The People of the State of New York, Respondent, v Douglas McCain, Appellant.
    Submitted January 3, 2017;
    decided January 5, 2017
   Motion for assignment of counsel granted and Seymour W. James, Jr., Esq., The Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York ex rel. Diane Word, Appellant, v State of New York et al., Respondents.
    Decided January 5, 2017
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies from an order of an individual Justice of the Appellate Division (see NY Const, art VI, § 3 [b]; CPLR 5601).


text:
    Injah Unique Tafari, Also Known as Richardo Orlando Foust, Appellant, v Lucien LeClaire et al., Respondents.
    Submitted November 21, 2016;
    decided January 5, 2017
   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 Anthony C.M. III. SCO Family of Services, Respondent; Anthony C.M., Also Known as Anthony M. and Others, et al., Respondents. (Proceeding No. 1.) In the Matter of Demarco M., Also Known as Demarco P. SCO Family of Services, Respondent; Anthony C.M., Also Known as Anthony M. and Others, et al., Respondents. (Proceeding No. 2.) In the Matter of Justice R.M., Also Known as Justice M. and Another. SCO Family of Services, Respondent; Anthony C.M., Also Known as Anthony M. and Others, Appellant, et al., Respondents. (Proceeding No. 3.) In the Matter of Samantha V.M., Also Known as Samantha M. and Another. SCO Family of Services, Respondent; Anthony C.M., Also Known as Anthony M. and Others, Appellant, et al., Respondents. (Proceeding No. 4.)
    Submitted September 19, 2016;
    decided December 15, 2016
   Reported below, 141 AD3d 718.

Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    Beechwood POB, LLC, Respondent, v Richard A. Brummell, Appellant, et al., Defendant.
    Decided December 15, 2016
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Jennifer Cangro, Appellant, v Mary V. Rosado, Respondent.
    Decided December 15, 2016
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.

Judge Abdus-Salaam taking no part.


text:
    Veronika Chauca, Appellant, v Jamil Abraham et al., Respondents.
    Decided December 15, 2016

      See 841 F3d 86.
   Certification of question by the United States Court of Appeals for the Second Circuit, pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), accepted and the issues presented are to be considered after briefing and argument.

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


text:
    In the Matter of City of New York et al., Appellants, v New York State Nurses Association et al., Respondents.
    Submitted November 28, 2016;
    decided December 15, 2016
   Motion by Municipal Labor Committee for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and an original and nine copies filed within seven days.


text:
    Contact Chiropractic, P.C., as Assignee of Girtha Butler, Respondent, v New York City Transit Authority, Appellant.
    Submitted December 12, 2016;
    decided December 15, 2016
   Motion by American Transit Insurance Company for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed submission is accepted as filed. One copy of the submission must be served and an original and two copies filed within seven days.


text:
    In the Matter of James Davis, Appellant, v Anthony J. Annucci, as Acting Commissioner of Corrections and Community Supervision, Respondent.
    Decided December 15, 2016
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Karine Gevorkyan et al., Appellants, v Ira Judelson, Respondent.
    Decided December 15, 2016

      See 841 F3d 584.
   Certification of question by the United States Court of Appeals for the Second Circuit, pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), accepted and the issues presented are to be considered after briefing and argument.

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


text:
    In the Matter of Sylvia Golub, Deceased. Norman Golub, Respondent; J. David Golub, Appellant. (Matter No. 1.) Norman Golub, Respondent v Jerry David Golub, Appellant. (Matter No. 2.)
    Submitted December 5, 2016;
    decided December 15, 2016
   Reported below, 2015 NY Slip Op 67154(U).

Motion for a stay and injunctive relief dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion because no appeal or motion for leave to appeal is pending before this Court (see CPLR 5519).

Chief Judge DiFiore and Judge Garcia taking no part.


text:
    Richard Grossman, Respondent, v TCR, Also Known as The Club of Riverdale, Appellant.
    Decided December 15, 2016
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Joseph P. and Others, Children Alleged to be Permanently Neglected. Edwin P., Appellant, et al., Respondent; New Alternatives for Children, Inc., Respondent.
    Submitted November 7, 2016;
    decided December 15, 2016
   Motion for leave to appeal denied. Motion for poor person relief dismissed as academic. Motion for a stay dismissed as academic.


text:
    Sian Maliah-Dupass, Respondent, v Jahiz Dupass, Appellant.
    Submitted October 24, 2016;
    decided December 15, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Nella Manko, Appellant, v Lenox Hill Anesthesiology, PLLC, et al., Respondents.
    Submitted November 7, 2016;
    decided December 15, 2016
   Motion for reconsideration of this Court’s November 21, 2011 dismissal order dismissed as untimely (see Rules of Ct of Appeals [22 NYCRR] § 500.24 [b]) [see 17 NY3d 933 (2011)].

Judge Abdus-Salaam taking no part.


text:
    In the Matter of Nella Manko, Appellant, et al., Petitioner, v New York State Division of Housing and Community Renewal, Office of Rent Administration, Respondent.
    Submitted November 7, 2016;
    decided December 15, 2016
   Motion for reargument of motion for leave to appeal dismissed as untimely (see Rules of Ct of Appeals [22 NYCRR] § 500.24 [b]) [see 17 NY3d 717 (2011)].

Judge Abdus-Salaam taking no part.


text:
    In the Matter of Melvin M. Marin, a Suspended Attorney, Appellant. Committee on Professional Standards, Respondent.
    Submitted September 12, 2016;
    decided December 15, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York, Respondent, v Darrion B. Freeman, Appellant.
    Submitted December 5, 2016;
    decided December 15, 2016
   Motion for assignment of counsel granted and Timothy P. Donaher, Esq., Monroe County Public Defender, 10 N. Fitzhugh Street, Rochester, New York 14614 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Jared Hernandez, Appellant.
    Submitted November 28, 2016;
    decided December 15, 2016
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Isma McGhee, Also Known as Izzy, Appellant.
    Submitted August 22, 2016;
    decided December 15, 2016
   Motion for reargument denied [see 27 NY3d 652 (2016)].


text:
    The People of the State of New York, Respondent, v Gabriel G. Rodriguez, Appellant.
    Submitted November 21, 2016;
    decided December 15, 2016
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    In the Matter of Pat Sica, Respondent, v Thomas P. DiNapoli, as State Comptroller, Appellant.
    Decided December 15, 2016
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of State of New York, Respondent, v Nushawn W., Appellant.
    Submitted September 12, 2016;
    decided December 15, 2016
   Motion by The Center for HIV Law and Policy et al. for leave to appear amici curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.

Judge Fahey taking no part.


text:
    Town of Oyster Bay, Respondent, v Richard A. Brummell, Appellant.
    Decided December 15, 2016
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Norman Woods et al., Respondents, v State University of New York et al., Appellants.
    Submitted October 31, 2015;
    decided December 15, 2016
   Motion to vacate this Court’s October 18, 2016 dismissal order granted.


text:
    Xiu Jian Sun, Appellant, v Dick Bailey Service, Inc., et al., Respondents.
    Decided December 15, 2016
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Xiu Jian Sun, Appellant, v Betty Lam et al., Respondents.
    Decided December 15, 2016
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    [68 NE3d 90, 45 NYS3d 362]
    Estate of Helen Del Terzo et al., Respondents, v 33 Fifth Avenue Owners Corp., Appellant.
    Decided December 20, 2016

      APPEARANCES OF COUNSEL

      Boyd Richards Parker & Colonnelli, P.L., New York City (Bryan J. Mazzola of counsel), for appellant.

      Smith, Buss & Jacobs, LLP, Yonkers (John J. Malley and Nancy Durand of counsel), for respondents.

      Gallet Dreyer & Berkey, LLP, New York City {Marc J. Luxemburg of counsel), for Council of New York Cooperatives and Condominiums, amicus curiae.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, and certified question answered in the affirmative. The Appellate Division did not err in holding defendant 33 Fifth Avenue Owners Corp. breached paragraph 16 (b) of its proprietary lease by unreasonably withholding consent to transfer shares allocated to an apartment and the lease appurtenant thereto from plaintiff Estate of Helen Del Terzo to plaintiffs Michael Del Terzo and Julius Robert Del Terzo. Defendant’s remaining arguments are unavailing.

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