text:
    In the Matter of Israel Martinez, Appellant, v Frederic M. Umane et al., Respondents, and Grisela Laraja, Respondent. In the Matter of Grisela Laraja, Petitioner, v Israel Martinez et al., Respondents.
    Submitted August 25, 2009;
    decided August 25, 2009
    Reported below, 65 AD3d 480.
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the two-Justice dissent at the Appellate Division is not on a question of law (CPLR 5601 [a]). Motion for leave to appeal denied.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Anthony Peluso et al., Appellants, v Erie County Independence Party et al., Respondents, and New York State Committee of the Independence Party et al., Appellants, et al., Respondents.
    Submitted August 25, 2009;
    decided August 25, 2009
    Reported below, 65 AD3d 820.
   Motion for leave to appeal by Anthony Peluso et al. and New York State Committee of the Independence Party et al. granted. Motion for leave to appeal by Erie County Independence Party et al. dismissed upon the ground that such parties are not aggrieved.


text:
    [914 NE2d 141, 885 NYS2d 449]
    In the Matter of Flora Fasoldt et al., Respondents, v Lawrence Bugbee et al., Constituting the Rensselaer County Board of Elections, et al., Respondents, and Christopher N. Consuello et al., Appellants. (Proceeding No. 1.) In the Matter of James Brearton et al., Respondents, v Lawrence Bugbee et al., Constituting the Rensselaer County Board of Elections, et al., Respondents, and Christopher N. Consuello et al., Appellants. (Proceeding No. 2.)
    Argued August 25, 2009;
    decided August 26, 2009

      APPEARANCES OF COUNSEL

      David L. Gruenberg, Troy, for appellants in the first and second above-entitled proceedings.

      Thomas V. Kenney, Jr., Troy, for respondents in the first and second above-entitled proceedings.
   OPINION OF THE COURT

Order reversed and proceedings dismissed (see Matter of Cass v Krakower, 13 NY3d 118 [2009] [decided today]).

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


text:
    [914 NE2d 141, 885 NYS2d 449]
    In the Matter of Patricia Myers, Appellant, v Jon Baisley, Respondent, et al., Respondents.
    Argued August 25, 2009;
    decided August 26, 2009

      APPEARANCES OF COUNSEL

      David A. Sears, Poughkeepsie, for appellant.

      John Ciampoli, Albany, for respondent.
   OPINION OF THE COURT

Order affirmed (see Matter of Cass v Krakower, 13 NY3d 118 [2009] [decided today]).

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


author: Memorandum.

text:
    [914 NE2d 142, 885 NYS2d 450]
    In the Matter of John Gebbie, Respondent, v David Mammina et al., Appellants.
    Decided August 27, 2009

      APPEARANCES OF COUNSEL

      Richard S. Finkel, Town Attorney, Manhasset (Christopher G. Senior and Simone Marie Freeman of counsel), for appellants.

      William A. DiConza, Oyster Bay, for respondent.
   OPINION OF THE COURT

Memorandum.

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

In view of the broad discretion afforded zoning boards considering applications for area variances (see Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d 608, 612-613 [2004]), the denial of petitioner’s application for area variances to subdivide his lot to create two nonconforming lots had a rational basis and was not arbitrary and capricious. The Board of Zoning Appeals rationally balanced and weighed the requisite statutory factors, and the Appellate Division erroneously substituted its judgment for that of the agency (see Town Law § 267-b [3] [b]).

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:
    In the Matter of the Arbitration between Buffalo Professional Firefighters Association, Inc., Local 282, IAFF, AFL-CIO-CLC, Respondent, and Anthony Masiello, as Mayor of the City of Buffalo, et al., Appellants.
    Submitted July 13, 2009;
    decided August 27, 2009
    Reported below, 50 AD3d 106.
   Motion by New York Public Employment Relations Board for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    In the Matter of Danny Echevarria, Appellant, v Patricia D. Marks, Monroe County Court Judge, Respondent.
    Submitted July 13, 2009;
    decided August 27, 2009
    Reported below, 57 AD3d 1479.
   Motion for poor person relief granted.


text:
    Executive Risk Indemnity Inc., Appellant, v Pepper Hamilton LLP et al., Respondents and Third-Party Plaintiffs-Respondents. Continental Casualty Company et al., Third-Party Defendants-Appellants.
    Submitted August 3, 2009;
    decided August 27, 2009
    Reported below, 56 AD3d 196.
   Motion by Philadelphia Bar Association for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Kenneth J. Lewis et al., Appellants, v New York State Department of Civil Service et al., Respondents.
    Submitted August 3, 2009;
    decided August 27, 2009
    Reported below, 60 AD3d 216.
   Motion by New York State Catholic Conference for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Kenneth J. Lewis et al., Appellants, v New York State Department of Civil Service et al., Respondents.
    Submitted August 10, 2009;
    decided August 27, 2009
    Reported below, 60 AD3d 216.
   Motion by Family Watch International for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and 24 copies filed within seven days.


text:
    The People of the State of New York, Respondent, v Quentin Abney, Appellant.
    Submitted August 3, 2009;
    decided August 27, 2009
    Reported below, 57 AD3d 35.
   Motion by the Innocence Project for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    The People of the State of New York, Respondent, v Steven Acevedo, Appellant.
    Submitted July 27, 2009;
    decided August 27, 2009
    Reported below, 61 AD3d 692.
   Motion for assignment of counsel granted and David L. Stein-berg, Esq. care of Law Offices of Mickey A. Steiman, 4419 Albany Post Road, Hyde Park, New York 12538 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Mazin Assi, Appellant.
    Submitted July 13, 2009;
    decided August 27, 2009
    Reported below, 63 AD3d 19.
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Appellant-Respondent, v Daniel J. Ballman, Respondent-Appellant.
    Submitted August 3, 2009;
    decided August 27, 2009
    Reported below, 64 AD3d 9.
   Motion for assignment of counsel granted and Shirley A. Gorman, Esq., 12 East Bank Street, Albion, New York 14411 assigned as counsel to the respondent-appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v James F. Bruno, Appellant.
    Submitted August 17, 2009;
    decided August 27, 2009
    Reported below, 63 AD3d 1297.
   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, Appellant, v Lynette Caban, Respondent.
    Submitted July 27, 2009;
    decided August 27, 2009
    Reported below, 51 AD3d 455.
   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 respondent on the appeal herein.


text:
    The People of the State of New York, Respondent, v Teofilo Diaz, Appellant.
    Submitted August 24, 2009;
    decided August 27, 2009
    Reported below, 62 AD3d 157.
   Motion for assignment of counsel granted and Lynn WL. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v James Dreyden, Appellant.
    Submitted August 17, 2009;
    decided August 27, 2009
    Reported below, 23 Misc 3d 34.
   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 Jerry Francois, Appellant.
    Submitted August 24, 2009;
    decided August 27, 2009
    Reported below, 61 AD3d 524.
   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 Trevor Frederick, Appellant.
    Submitted August 24, 2009;
    decided August 27, 2009
    Reported below, 62 AD3d 612.
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.

Chief Judge Lippman taking no part.


text:
    The People of the State of New York, Respondent, v Tara Gravino, Appellant.
    Submitted August 17, 2009;
    decided August 27, 2009
    Reported below, 62 AD3d 1259.
   Motion for assignment of counsel granted and Kathleen P Reardon, Esq., 40 Humboldt Street, Rochester, New York 14609 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Raul Izaguirre, Appellant.
    Submitted July 16, 2009;
    decided August 27, 2009
    Reported below, 51 AD3d 946.
   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 Dorita Jackson, Appellant.
    Submitted July 13, 2009;
    decided August 27, 2009
    Reported below, 59 AD3d 268.
   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 Terrance Johnson, Appellant.
    Submitted June 29, 2009;
    decided August 27, 2009
    Reported below, 60 AD3d 1396.
   Motion for assignment of counsel granted and David C. Schopp, Esq., Legal Aid Bureau of Buffalo, 237 Main Street, Suite 1602, Buffalo, New York 14203 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Bernardo Martinaj, Appellant.
    Submitted July 27, 2009;
    decided August 27, 2009
    Reported below, 56 AD3d 349.
   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 Norman McBride, Appellant.
    Submitted July 6, 2009;
    decided August 27, 2009
    Reported below, 59 AD3d 151.
   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 Samuel McLean, Appellant.
    Submitted August 24, 2009;
    decided August 27, 2009
    Reported below, 59 AD3d 861.
   Motion for assignment of counsel granted and Danielle Neroni Reilly, Esq. care of Law Offices of Danielle Neroni, EO. Box 8446, Albany, New York 12208 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Kezine Murray, Appellant.
    Submitted June 29, 2009;
    decided August 27, 2009
    Reported below, 57 AD3d 921.
   Motion for assignment of counsel granted and Mark Diamond, Esq., Box 287356, Yorkville Station, New York, NY 10128 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Nayshawn Perkins, Appellant.
    Submitted August 24, 2009;
    decided August 27, 2009
    Reported below, 61 AD3d 780.
   Motion for assignment of counsel granted and Lynn WL. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Alex Rivera, Appellant.
    Submitted June 29, 2009;
    decided August 27, 2009
    Reported below, 60 AD3d 788.
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Edwin Rodriguez, Appellant.
    Submitted August 17, 2009;
    decided August 27, 2009
    Reported below, 60 AD3d 452.
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Range P. Scully, Appellant.
    Submitted August 10, 2009;
    decided August 27, 2009
    Reported below, 61 AD3d 1364.
   Motion for assignment of counsel granted and Frank J. Nebush, Jr., Esq., Oneida County Public Defender, Union Station, 321 Main Street, Utica, New York 13501 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Carl Squitieri, Appellant.
    Submitted August 17, 2009;
    decided August 27, 2009
    Reported below, 60 AD3d 1208.
   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 Steven Thomas, Appellant.
    Submitted August 10, 2009;
    decided August 27, 2009
    Reported below, 62 AD3d 530.
   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 Desirie Wilson, Appellant.
    Submitted July 6, 2009;
    decided August 27, 2009
    Reported below, 59 AD3d 153.
   Motion for assignment of counsel denied.


text:
    Amy L. Roberts et al., on Behalf of Themselves and All Others Similarly Situated, Respondents, v Tishman Speyer Properties, L.P., et al., Appellants.
    Submitted July 20, 2009;
    decided August 27, 2009
    Reported below, 62 AD3d 71.
   Motion by the Legal Aid Society for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Amy L. Roberts et al., on Behalf of Themselves and All Others Similarly Situated, Respondents, v Tishman Speyer Properties, L.P., et al., Appellants.
    Submitted August 3, 2009;
    decided August 27, 2009
    Reported below, 62 AD3d 71.
   Motion by Real Estate Board of New York for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Amy L. Roberts et al., on Behalf of Themselves and All Others Similarly Situated, Respondents, v Tishman Speyer Properties, L.P., et al., Appellants.
    Submitted August 3, 2009;
    decided August 27, 2009
    Reported below, 62 AD3d 71.
   Motion by New York State Tenants and Neighbors Coalition, 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.


text:
    Amy L. Roberts et al., on Behalf of Themselves and All Others Similarly Situated, Respondents, v Tishman Speyer Properties, L.P., et al., Appellants.
    Submitted August 3, 2009;
    decided August 27, 2009
    Reported below, 62 AD3d 71.
   Motion by Community Housing Improvement Program 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 24 copies filed within seven days.


text:
    Amy L. Roberts et al., on Behalf of Themselves and All Others Similarly Situated, Respondents, v Tishman Speyer Properties, L.P., et al., Appellants.
    Submitted August 3, 2009;
    decided August 27, 2009
    Reported below, 62 AD3d 71.
   Motion by New York City Council Members Maria del Carmen Arroyo 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 24 copies filed within seven days.


text:
    Amy L. Roberts et al., on Behalf of Themselves and All Others Similarly Situated, Respondents, v Tishman Speyer Properties, L.P., et al., Appellants.
    Submitted August 3, 2009;
    decided August 27, 2009
    Reported below, 62 AD3d 71.
   Motion by Rent Stabilization Association of New York City, Inc. for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Amy L. Roberts et al., on Behalf of Themselves and All Others Similarly Situated, Respondents, v Tishman Speyer Properties, L.P., et al., Appellants.
    Submitted August 3, 2009;
    decided August 27, 2009
    Reported below, 62 AD3d 71.
   Motion by Office of the Manhattan Borough President for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Amy L. Roberts et al., on Behalf of Themselves and All Others Similarly Situated, Respondents, v Tishman Speyer Properties, L.P., et al., Appellants.
    Submitted August 10, 2009;
    decided August 27, 2009
    Reported below, 62 AD3d 71.
   Motion by Urban Justice Center for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Amy L. Roberts et al., on Behalf of Themselves and All Others Similarly Situated, Respondents, v Tishman Speyer Properties, L.P., et al., Appellants.
    Submitted August 3, 2009;
    decided August 27, 2009
    Reported below, 62 AD3d 71.
   Motion by Mitchell-Lama Residents Coalition for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and 24 copies filed within seven days.


text:
    In the Matter of Save the Pine Bush, Inc., et al., Respondents, v Common Council of the City of Albany, Appellant, et al., Respondent.
    Submitted August 3, 2009;
    decided August 27, 2009
    Reported below, 56 AD3d 32.
   Motion by Sierra Club Atlantic Chapter 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. Three copies of the brief must be served and an original and 24 copies filed within seven days.


text:
    In the Matter of Transitional Services of New York for Long Island, Inc., Respondent-Appellant, v New York State Office of Mental Health et al., Appellants-Respondents.
    Submitted August 3, 2009;
    decided August 27, 2009
    Reported below, 44 AD3d 673.
   Motion by Association for Community Living for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Trust for the Certificate Holders of the Merrill Lynch Mortgage Investors, Inc. Mortgage Pass-Through Certificates, Series 1999-C1, by and through Orix Capital Markets, LLC as Master Servicer and Special Servicer, Appellant, v Love Funding Corporation, Respondent.
    Submitted August 3, 2009;
    decided August 27, 2009
   Motion by Loan Syndications & Trading Association, Inc. for leave to file a brief amicus curiae on consideration of the certified question herein granted and the proposed brief is accepted as filed.


text:
    Trust for the Certificate Holders of the Merrill Lynch Mortgage Investors, Inc. Mortgage Pass-Through Certificates, Series 1999-C1, by and through Orix Capital Markets, LLC as Master Servicer and Special Servicer, Appellant, v Love Funding Corporation, Respondent.
    Submitted August 3, 2009;
    decided August 27, 2009
   Motion by Northern Manhattan Improvement Corporation et al. for leave to appear amici curiae on consideration of the certifled question herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    [914 NE2d 1005, 886 NYS2d 88]
    The People of the State of New York, Respondent, v Jermar McDaniel, Appellant.
    Decided September 1, 2009

      APPEARANCES OF COUNSEL

      Legal Aid Society, Criminal Appeals Bureau, New York City (Arthur H. Hopkirk and Steven Banks of counsel), for appellant.

      Robert T. Johnson, District Attorney, Bronx (Kayonia L. Whetstone of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Because defense counsel’s decision not to seek dismissal of the robbery in the first degree charge for insufficient evidence would not have resulted in a dismissal of that charge (see People v Lopez, 73 NY2d 214, 219-220 [1989]; People v Baskerville, 60 NY2d 374, 380-381 [1983]), defendant’s claim of ineffective assistance of counsel is meritless. Furthermore, the attorney’s conduct did not consist of “ ‘egregious and prejudicial’ error such that defendant did not receive a fair trial” (People v Benevento, 91 NY2d 708, 713 [1998], citing People v Flores, 84 NY2d 184, 188-189 [1994]), but rather “viewed in totality and as of the time of the representation, reveal[s] that the attorney provided meaningful representation” (People v Baldi, 54 NY2d 137, 147 [1981]).

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

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


text:
    Virginia Albizu, Respondent, v Jose Duval, Appellant.
    Submitted May 26, 2009;
    decided September 1, 2009
    Reported below, 57 AD3d 384.
   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:
    Citibank, N.A., Respondent, v Angst, Inc., et al., Defendants, and John M. McNamara, Appellant.
    Submitted June 1, 2009;
    decided September 1, 2009
    Reported below, 61 AD3d 484.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (see Karger, Powers of the New York Court of Appeals § 4:11, at 83-85 [3d ed rev]).


text:
    Debra H., Appellant, v Janice R., Respondent.
    Submitted July 20, 2009;
    decided September 1, 2009
    Reported below, 61 AD3d 460.
   Motions for a stay of the Appellate Division order reversing Supreme Court’s October 2, 2008 order granted to the extent of reinstating and permitting enforcement of so much of Supreme Court’s order as allowed appellant Sunday visitation with the child.


text:
    Debra H., Appellant, v Janice R., Respondent.
    Submitted August 10, 2009;
    decided September 1, 2009
    Reported below, 61 AD3d 460.
   Motion by National Association of Social Workers et al. for leave to file a brief amici curiae on the motion for leave to appeal herein granted and the brief is accepted as filed, and for leave to file a brief amici curiae on the appeal herein granted, and the brief is accepted as filed.


text:
    Debra H., Appellant, v Janice R., Respondent.
    Submitted August 17, 2009;
    decided September 1, 2009
    Reported below, 61 AD3d 460.
   Motion by Richard Allen et al. for leave to file a brief amici curiae on the motion for leave to appeal herein granted and the brief is accepted as filed, and for leave to file a brief amici curiae on the appeal herein granted, three copies of the brief to be served and an original and 24 copies filed within 30 days.


text:
    Debra H., Appellant, v Janice R., Respondent.
    Submitted August 10, 2009;
    decided September 1, 2009
    Reported below, 61 AD3d 460.
   Motion by New York Civil Liberties Union et al. for leave to file a brief amici curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    Debra H., Appellant, v Janice R., Respondent.
    Submitted August 10, 2009;
    decided September 1, 2009
    Reported below, 61 AD3d 460.
   Motion by Citizens’ Committee for Children of New York et al. for leave to file a brief amici curiae on the motion for leave to appeal herein granted and the brief is accepted as filed, and for leave to file a brief amici curiae on the appeal herein granted, three copies of the brief to be served and an original and 24 copies filed within 30 days.


text:
    Debra H., Appellant, v Janice R., Respondent.
    Submitted August 10, 2009;
    decided September 1, 2009
    Reported below, 61 AD3d 460.
   Motion by the New York State Bar Association for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed, and for leave to file a brief amicus curiae on the appeal herein granted, three copies of the brief to be served and an original and 24 copies filed within 30 days.


text:
    Debra H., Appellant, v Janice R., Respondent.
    Submitted August 10, 2009;
    decided September 1, 2009
    Reported below, 61 AD3d 460.
   Motion by the New York City Bar Association for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed, and for leave to file a brief amicus curiae on the appeal herein granted, three copies of the brief to be served and an original and 24 copies filed within 30 days.


text:
    In the Matter of Robie J. Drake, Appellant, v Richard C. Kloch, Sr., Acting Justice of the Supreme Court of the State of New York, Niagara County, et al., Respondents.
    Submitted May 26, 2009;
    decided September 1, 2009
    Reported below, 2009 NY Slip Op 69151(U).
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    In the Matter of Anthony Ettari, Respondent, v Brian Fischer, as Commissioner of Correctional Services, et al., Appellants.
    Submitted July 20, 2009;
    decided September 1, 2009
    Reported below, 54 AD3d 460.
   Motion to vacate this Court’s June 25, 2009 dismissal order granted [see 12 NY3d 911 (2009)].


text:
    In the Matter of 47 Ave. B. East Inc., Respondent, v New York State Liquor Authority, Appellant.
    Submitted July 29, 2009;
    decided September 1, 2009
    Reported below, 65 AD3d 33.
   Motion to vacate stay granted.

Chief Judge Lippman taking no part.


text:
    The People of the State of New York ex rel. Howard Glenn Blake, Alleged to be Larry Wayne Barnett, Appellant, v George E. Pataki, as Governor of the State of New York, Respondent.
    Submitted June 22, 2009;
    decided September 1, 2009
    Reported below, 57 AD3d 583.
   Motion to vacate this Court’s June 2, 2009 dismissal order granted [see 12 NY3d 911 (2009)].


text:
    Kirk Smith, Appellant, v Garo Enterprises, Inc., et al., Defendants. Carol Radin et al., Nonparty Respondents.
    Submitted June 1, 2009;
    decided September 1, 2009
    Reported below, 60 AD3d 751.
   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:
    Donald G. Strader, Respondent, v John J. Ashley, Jr., et al., Appellants, et al., Defendant.
    Submitted June 15, 2009;
    decided September 1, 2009
    Reported below, 61 AD3d 1244.
   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:
    [915 NE2d 288, 886 NYS2d 363]
    The People of the State of New York, Respondent, v Peter J. Maliszewski, Appellant.
    Decided September 3, 2009

      APPEARANCES OF COUNSEL

      Davison Law Office, Canandaigua (Mary P. Davison of counsel), for appellant.

      Donald H. Dodd, District Attorney, Oswego (Michael G. Cianfaraño of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant pleaded guilty to burglary and was sentenced pursuant to a plea agreement the Appellate Division found in a prior order to be illegal. He was offered the chance to withdraw his plea by the sentencing court, and chose not to do so. The sentencing court was not required to offer defendant the option of a lesser sentence, where plea withdrawal can put the defendant in the position he was in prior to admitting guilt (compare People v Selikoff, 35 NY2d 227 [1974], with People v McConnell, 49 NY2d 340 [1980]).

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

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


text:
    Ruby Emanuel, Plaintiff, v Sheridan Transportation Corp. et al., Defendants. Kenneth Heller, Appellant, v Jacoby & Meyers, LLP, Respondent.
    Submitted June 22, 2009;
    decided September 3, 2009
    Reported below, 58 AD3d 583.
   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 by Andrew M. Cuomo, Attorney General of the State of New York, Respondent, v Coventry First LLC et al., Appellants.
    Submitted August 10, 2009;
    decided September 3, 2009
    Reported below, 52 AD3d 345.
   Motion for reargument denied [see 13 NY3d 108 (2009)].

Chief Judge Lippman taking no part.


text:
    Superior Ice Rink, Inc., Respondent, v Nescon Contracting Corp., Doing Business as Al Discount Painting, et al., Defendants, and Merchants Mutual Marine Insurance Company, Appellant.
    Submitted June 15, 2009;
    decided September 3, 2009
    Reported below, 52 AD3d 688.
   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 Yovino, Appellant, v New York City Civil Service Commission, Respondent.
    Submitted June 15, 2009;
    decided September 3, 2009
    Reported below, 2009 NY Slip Op 61617ÍU).
   Motion for reargument of motion for leave to appeal denied [see 12 NY3d 813 (2009)].


text:
    [915 NE2d 1158, 886 NYS2d 862]
    Edward Koehl, Appellant, v S. Mirza et al., Respondents.
    Decided September 8, 2009
    APPEARANCES OF COUNSEL

      Edward Koehl, appellant pro se.

      Andrew M. Cuomo, Attorney General, Albany {Robert M. Goldfarb, Barbara D. Underwood and Andrea Oser of counsel), for respondents.
   OPINION OF THE COURT

Upon reargument, following remand by the Supreme Court of the United States, this Court’s November 27, 2007 dismissal order vacated and appeal reinstated (see Koehl u Mirza, 556 US —, 129 S Ct 2734 [2009]; Haywood v Drown, 556 US —, 129 S Ct 2108 [2009]).

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


text:
    [915 NE2d 1158, 886 NYS2d 862]
    Keith Haywood, Appellant, v Curtis Drown, Respondent. (Action No. 1.) Keith Haywood, Appellant, v Pat Smith et al., Respondents. (Action No. 2.)
    Decided September 8, 2009

      APPEARANCES OF COUNSEL

      Dechert LLP, New York City (Gary J. Mennitt of counsel), for appellant.

      Andrew M. Cuomo, Attorney General, Albany (Robert M. Goldfarb, Barbara D. Underwood and Andrea Oser of counsel), for respondents.
   OPINION OF THE COURT

Upon reargument, following remand by the Supreme Court of the United States, order in Haywood v Drown reversed, with costs, motion to dismiss denied and case remitted to Supreme Court, Wyoming County, for further proceedings, and order in Haywood v Smith modified, without costs, by denying the motion to dismiss the cause of action predicated on 42 USC § 1983 and remitting to Supreme Court, Wyoming County, for further proceedings on that cause of action and, as so modified, affirmed (see Haywood v Drown, 556 US —, 129 S Ct 2108 [2009]).

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


text:
    Arts4All, Ltd., Appellant, et al., Plaintiff, v Judith L. Hancock, Respondent and Counterclaim Plaintiff-Respondent, et al., Additional Counterclaim Defendants.
    Submitted July 6, 2009;
    decided September 8, 2009
    Reported below, 54 AD3d 286.
   Motion for reargument denied with $100 costs and necessary reproduction disbursements [see 12 NY3d 846 (2009)].

Chief Judge Lippman taking no part.


text:
    Arrello Barnes, Appellant, v State of New York, Respondent.
    Submitted July 6, 2009;
    decided September 8, 2009
    Reported below, 2008 NY Slip Op 85094(U); 2009 NY Slip Op 63023(11).
   Motion for reargument denied [see 11 NY3d 883 (2008)]. Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.

Chief Judge Lippman taking no part.


text:
    Susan Cambizaca, Appellant, v New York City Transit Authority, Respondent.
    Submitted August 3, 2009;
    decided September 8, 2009
    Reported below, 57 AD3d 701.
   Motion for reargument of motion for leave to appeal denied with $100 costs and necessary reproduction disbursements [see 12 NY3d 715 (2009)].


text:
    Mary Ann DiDomenico et al., Appellants, v Long Beach Plaza Corp. et al., Respondents, et al., Defendants.
    Submitted July 6, 2009;
    decided September 8, 2009
    Reported below, 60 AD3d 615, 618.
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    Ruchama Gamiel, Appellant, v Curtis & Reiss-Curtis, RC., et al., Respondents. (And a Third-Party Action.)
    Submitted July 13, 2009;
    decided September 8, 2009
    Reported below, 60 AD3d 473.
   Motion, insofar as it seeks leave to appeal from the March 10, 2009 Appellate Division order, dismissed as untimely (see CPLR 5513 [b]); motion, insofar as it seeks leave to appeal from the Supreme Court judgment entered on the Appellate Division order, dismissed upon the ground that the judgment is not the final paper from which leave to appeal may be sought (see CPLR 5611). Motion for a stay dismissed as academic.


text:
    Wendy Goldin et al., Appellants, v Engineers Country Club et al., Respondents.
    Submitted June 22, 2009;
    decided September 8, 2009
    Reported below, 54 AD3d 658.
   Motion, insofar as it seeks leave to appeal against defendant Engineers Country Club, dismissed as untimely (see CPLR 5513 [b]); motion for leave to appeal otherwise denied.


text:
    Robert E. Judge, Appellant, v New York College of Professional Health, Respondent.
    Submitted June 15, 2009;
    decided September 8, 2009
    Reported below, 2008 NY Slip Op 68025(U); 2008 NY Slip Op 82157(U); 2008 NY Slip Op 88405(0).
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that it does not lie (see CPLR 5601). Motion for leave to appeal dismissed upon the ground that it does not lie (see CPLR 5602). Motion for poor person relief dismissed as academic.


text:
    Leon R. Koziol, Appellant, v Kelly Hawse Koziol, Respondent.
    Decided September 8, 2009
    Reported below, 60 AD3d 1433 (Appeal No. 1).
   Appeal from order of the Appellate Division dismissing the appeal from an order of Supreme Court, among other things, denying appellant’s motion for custody and suspension of his support obligations pending determination of the action, dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution.


text:
    Leon R. Koziol, Appellant, v Kelly Hawse Koziol, Respondent.
    Decided September 8, 2009
    Reported below, 60 AD3d 1435 (Appeal No. 2).
   Appeal from order of the Appellate Division dismissing the appeal from a judgment of divorce, dismissed upon the ground that appellant is not a party aggrieved.


text:
    Leon R. Koziol, Appellant, v Kelly Hawse Koziol, Respondent.
    Decided September 8, 2009
    Reported below, 60 AD3d 1435 (Appeal No. 3).
   Appeal from order of the Appellate Division affirming so much of an order of Supreme Court as denied appellant’s motion to amend the caption, dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution.


text:
    Leon R. Koziol, Appellant, v Kelly Hawse Koziol, Respondent.
    Decided September 8, 2009
    Reported below, 60 AD3d 1435 (Appeal No. 4).
   Appeal from order of the Appellate Division affirming so much of an order of Supreme Court as denied appellant’s postjudgment motion for a change in custody and/or parenting time dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of William Kyle et al., Appellants, v Gerald Lebovits et al., Respondents.
    Submitted June 29, 2009;
    decided September 8, 2009
    Reported below, 58 AD3d 521.
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that dismissed the appeal from that portion of Supreme Court’s order that imposed sanctions upon appellants’ counsel, dismissed upon the ground that as to said part of the order appellants are not parties aggrieved within the meaning of CPLR 5511; motion for leave to appeal otherwise denied.


text:
    Maurice Oparaji, Appellant, v The New York Mortgage Company, LLC, Respondent.
    Submitted July 13, 2009;
    decided September 8, 2009
    Reported below, 55 AD3d 429.
   Motion for reargument of motion for leave to appeal denied [see 12 NY3d 881 (2009)].

Chief Judge Lippman taking no part.


text:
    In the Matter of Virginia Parkhouse, Appellant, v Scott M. Stringer, as Borough President of Manhattan, et al., Respondents.
    Submitted July 20, 2009;
    decided September 8, 2009
    Reported below, 55 AD3d 1.
   Motion for reargument denied with $100 costs and necessary reproduction disbursements [see 12 NY3d 660 (2009)].

Chief Judge Lippman taking no part.


text:
    The People of the State of New York, Respondent, v Reginald Bellot, Appellant.
    Submitted June 22, 2009;
    decided September 8, 2009
    Reported below, 23 Misc 3d 138(A).
   Motion for leave to appeal from the Appellate Term order dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion (see CPLR 5602). Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York, Respondent, v Jesus Cano, Appellant.
    Submitted July 6, 2009;
    decided September 8, 2009
    Reported below, 54 AD3d 684.
   Motion for reargument denied [see 12 NY3d 876 (2009)].


text:
    The People of the State of New York, Respondent, v Jose Fuentes, Appellant.
    Submitted July 13, 2009;
    decided September 8, 2009
    Reported below, 48 AD3d 479.
   Motion for reargument denied [see 12 NY3d 259 (2009)].


text:
    The People of the State of New York ex rel. James Curry, Appellant, v James Conway, Superintendent of Attica Correctional Facility, Respondent.
    Submitted June 15, 2009;
    decided September 8, 2009
   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; CPLR 5602).


text:
    The People of the State of New York ex rel. Alvin Fulton Jr., Appellant, v William Lape, as Superintendent of Coxsackie Correctional Facility, Respondent.
    Decided September 8, 2009
    Reported below, 61 AD3d 1227.
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    State of New York ex rel. Barbara D., Appellant, v Francis D., Respondent. Francis D., Respondent, v Barbara D., Appellant.
    Submitted July 13, 2009;
    decided September 8, 2009
    Reported below, 58 AD3d 436.
   Motion for reconsideration of this Court’s June 9, 2009 dismissal order denied [see 12 NY3d 872 (2009)].


text:
    [915 NE2d 1165, 886 NYS2d 867]
    The People of the State of New York, Respondent, v Raheem Mayo, Appellant.
    Decided September 15, 2009
    APPEARANCES OF COUNSEL

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

      Robert M. Morgenthau, District Attorney, New York City {Justin K. Wechsler of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. The evidence presented to the grand jury was legally sufficient to establish that defendant constructively possessed 96 glassine bags containing crack/cocaine recovered from underneath clothing on an apartment’s bedroom floor. Specifically, there was evidence that when the police unexpectedly arrived at the apartment, defendant was getting dressed in the apartment’s small 8 foot by 10 foot bedroom; that his 18-month-old child was present in the apartment; that a plastic bag containing 47 small glassine bags containing crack/cocaine was in plain view on the bedroom dresser; that the additional 96 glassine bags containing crack/ cocaine recovered from the bedroom floor were packaged similarly to the drugs recovered from the dresser; and that defendant was in close proximity to the drugs on both the dresser and the floor. Further, the grand jury could have reasonably inferred that the drugs did not belong to the apartment’s lessee by virtue of the fact that she volunteered the location of the additional drugs in a manner that prevented the defendant and his accomplice from overhearing. This evidence, considered together, made out a prima facie case that defendant exercised dominion and control over the contraband {People v Manini, 79 NY2d 561, 573-575 [1992]).

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

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


text:
    [915 NE2d 1165, 886 NYS2d 868]
    Michael Jaglom et al., Respondents, v Insurance Company of Greater New York, Appellant.
    Decided September 15, 2009

      APPEARANCES OF COUNSEL

      Thomas D. Hughes, New York City, for appellant.

      Ohrenstein & Brown, LLP, Garden City (Michael D. Brown of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative. Questions of fact exist whether plaintiffs had a reasonable good-faith belief that the tenants in an underlying libel action against them would not seek to hold them liable, precluding dismissal of their action against the insurer (see Argentina v Otsego Mut. Fire Ins. Co., 86 NY2d 748, 750 [1995]).

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 affirmed, etc.


text:
    In the Matter of Amir J.-L., an Infant. Administration for Children’s Services, Respondent; Phillip J.-L., Appellant.
    Submitted August 17, 2009;
    decided September 15, 2009
    Reported below, 57 AD3d 669.
   Motion for reargument of motion for leave to appeal denied [see 12 NY3d 905 (2009)].


text:
    In the Matter of Delano Brown, Appellant, v New York State Board of Parole, Respondent.
    Submitted July 13, 2009;
    decided September 15, 2009
    Reported below, 2009 NY Slip Op 74919(11).
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Kim M. Cagle, as Administrator of the Estate of John R. Cagle, Deceased, Appellant, v Judge Motor Corporation et al., Respondents. Workers’ Compensation Board, Respondent.
    Submitted June 29, 2009;
    decided September 15, 2009
    Reported below, 60 AD3d 1118.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Robert Verle Case, Appellant, v Cayuga County et al., Respondents, et al., Defendants.
    Submitted July 6, 2009;
    decided September 15, 2009
    Reported below, 60 AD3d 1426.
   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 Daniel Goldstein et al., Appellants, v New York State Urban Development Corporation, Doing Business as Empire State Development Corporation, Respondent.
    Submitted September 8, 2009;
    decided September 15, 2009
    Reported below, 64 AD3d 168.
   Motion by Willets Point United, Inc. for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Law Offices of K.C. Okoli, P.C., Plaintiff, and Kenechukwu C. Okoli, Respondent, v Samuel O. Maduegbuna, Appellant, and Maduegbuna Cooper LLP, Respondent.
    Submitted June 29, 2009;
    decided September 15, 2009
    Reported below, 62 AD3d 477.
   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 Richard Lazzari, Appellant, v Town of Eastchester et al., Respondents.
    Submitted July 20, 2009;
    decided September 15, 2009
    Reported below, 62 AD3d 1002.
   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 and is not an order of the type provided for in CPLR 5602 (a) (2).


text:
    The People of the State of New York, Respondent, v Angel L. Cruz, Appellant.
    Submitted August 31, 2009;
    decided September 15, 2009
    Reported below, 57 AD3d 1453.
   Motion for assignment of counsel granted and Timothy E Donaher, Esq., Monroe County Public Defender, 10 N. Fitzhugh Street, Rochester, New York 14614 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Robert W Ellsworth, Appellant.
    Submitted August 24, 2009;
    decided September 15, 2009
    Reported below, 59 AD3d 989.
   Motion for assignment of counsel granted and R. Thomas Rankin, Esq., care of Goodell & Rankin, 617 Washington Street, Jamestown, New York 14701 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Appellant-Respondent, v Charles Frazier, Respondent-Appellant.
    Submitted August 31, 2009;
    decided September 15, 2009
    Reported below, 58 AD3d 468.
   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 Van Griffin, Appellant.
    Submitted August 24, 2009;
    decided September 15, 2009
    Reported below, 44 AD3d 682.
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 dismissed as untimely.


text:
    The People of the State of New York, Respondent, v Scott G. Mitchell, Appellant.
    Submitted September 8, 2009;
    decided September 15, 2009
    Reported below, 62 AD3d 1045.
   Motion for assignment of counsel granted and Livingston L. Hatch, Esq., Essex County Public Defender, 7551 Court Street, PO Box 217, Elizabethtown, New York 12932 assigned as counsel to the appellant on the appeal herein.


text:
    Ronald V. Pomerance, Appellant, v Roger Paul McTiernan, Jr., et al., Respondents.
    Submitted June 29, 2009;
    decided September 15, 2009
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine an action or proceeding within the meaning of the Constitution.

Chief Judge Lippman taking no part.


text:
    Dean G. Skelos et al., as Duly Elected Members of the New York State Senate, Respondents, v David Paterson, as Governor of the State of New York, et al., Appellants.
    Submitted September 8, 2009;
    decided September 15, 2009
    Reported below, 65 AD3d 339.
   Motion by Gerald Benjamin et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    Dean G. Skelos et al., as Duly Elected Members of the New York State Senate, Respondents, v David Paterson, as Governor of the State of New York, et al., Appellants.
    Submitted September 8, 2009;
    decided September 15, 2009
    Reported below, 65 AD3d 339.
   Motion by Ricardo Montano 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 24 copies filed forthwith.


text:
    Dean G. Skelos et al., as Duly Elected Members of the New York State Senate, Respondents, v David Paterson, as Governor of the State of New York, et al., Appellants.
    Submitted September 8, 2009;
    decided September 15, 2009
    Reported below, 65 AD3d 339.
   Motion by New York Civil Liberties Union for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Dean G. Skelos et al., as Duly Elected Members of the New York State Senate, Respondents, v David Paterson, as Governor of the State of New York, et al., Appellants.
    Submitted September 8, 2009;
    decided September 15, 2009
    Reported below, 65 AD3d 339.
   Motion by Partnership for New York City, Inc. for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Dean G. Skelos et al., as Duly Elected Members of the New York State Senate, Respondents, v David Paterson, as Governor of the State of New York, et al., Appellants.
    Submitted September 8, 2009;
    decided September 15, 2009
    Reported below, 65 AD3d 339.
   Motion by Citizens Union of the City of New York et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Dean G. Skelos et al., as Duly Elected Members of the New York State Senate, Respondents, v David Paterson, as Governor of the State of New York, et al., Appellants.
    Submitted September 8, 2009;
    decided September 15, 2009
    Reported below, 65 AD3d 339.
   Motion by United Federation of Teachers et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    [915 NE2d 1140, 886 NYS2d 845]
    Joseph I. Rosenzweig, Appellant, v Radiah K. Givens, Respondent.
    Decided September 17, 2009

      APPEARANCES OF COUNSEL

      Marc E. Elliott, EC., New York City (Marc E. Elliott of counsel), for appellant.

      Law Offices of Barbara H. Katsos, EC., New York City (Barbara H. Katsos of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

In connection with the mortgage foreclosure action, defendant has alleged sufficient facts to warrant denial of plaintiffs prediscovery motion for summary judgment, having asserted that plaintiff, an attorney who was then her paramour, secured the mortgage through fraud and overreaching and by exploiting a fiduciary relationship with her (see generally Matter of Greiff, 92 NY2d 341, 345 [1998]). She contends that, under the guise of buying her a condominium, he induced her to enter into a mortgage arrangement whereby he was the lender and she the borrower. Furthermore, plaintiff hired a friend to represent them both at the closing. Defendant claims that plaintiff paid all expenses related to the condominium and did not seek mortgage payments or any other contribution from defendant until three years later— after their marriage and defendant’s subsequent discovery that plaintiff already had a wife and two children, rendering their marriage bigamous. Plaintiff then demanded payment, accelerated the loan and pursued foreclosure against defendant. We also conclude that defendant has stated a prima facie case of fraudulent inducement to marriage (see Blossom v Barrett, 37 NY 434 [1868]; see also Tuck v Tuck, 14 NY2d 341, 344 [1964]).

Chief Judge Lippman and Judges Ciparick, Grapfeo, 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 affirmed, etc.


text:
    In the Matter of Barker Central School District et al., Respondents, v Niagara County Industrial Development Agency et al., Appellants, et al., Respondents. In the Matter of Town of Somerset et al., Respondents, v Niagara County Industrial Development Agency et al., Appellants. (And Another Proceeding).
    Submitted August 17, 2009;
    decided September 17, 2009
    Reported below, 62 AD3d 1239.
   Motion by New York State Economic Development Council for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed, and for leave to file a brief amicus curiae on the appeal herein granted, three copies of the brief to be served and an original and 24 copies filed within 30 days.

Judge Read taking no part.


text:
    In the Matter of Barker Central School District et al., Respondents, v Niagara County Industrial Development Agency et al., Appellants, et al., Respondents. In the Matter of Town of Somerset et al., Respondents, v Niagara County Industrial Development Agency et al., Appellants. (And Another Proceeding).
    Submitted August 17, 2009;
    decided September 17, 2009
    Reported below, 62 AD3d 1239.
   Motion by Independent Power Producers 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 24 copies filed within 30 days.

Judge Read taking no part.


text:
    Leonard Eidlisz, Respondent, v New York University et al., Appellants.
    Submitted July 21, 2009;
    decided September 17, 2009
    Reported below, 61 AD3d 473.
   Motion for a stay granted.


text:
    Marvin Gibbs, Respondent, v St. Barnabas Hospital, Respondent, and Fausto Vinces, M.D., Appellant, et al., Defendants.
    Submitted August 10, 2009;
    decided September 17, 2009
    Reported below, 61 AD3d 599.
   Motion to dismiss the appeal herein denied.


text:
    Margaret Godfrey et al., Appellants, v Andrew J. Spano et al., Respondents. New York State Comptroller, Intervenor-Respondent.
    Submitted September 14, 2009;
    decided September 17, 2009
    Reported below, 57 AD3d 941.
   Motion by New York State Association of Counties for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Margaret Godfrey et al., Appellants, v Andrew J. Spano et al., Respondents. New York State Comptroller, Intervenor-Respondent.
    Submitted September 14, 2009;
    decided September 17, 2009
    Reported below, 57 AD3d 941.
   Motion by New Yorkers for Constitutional Freedoms for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    In the Matter of Daniel Goldstein et al., Appellants, v New York State Urban Development Corporation, Doing Business as Empire State Development Corporation, Respondent.
    Submitted September 14, 2009;
    decided September 17, 2009
    Reported below, 64 AD3d 168.
   Motion by Institute for Justice for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    In the Matter of Daniel Goldstein et al., Appellants, v New York State Urban Development Corporation, Doing Business as Empire State Development Corporation, Respondent.
    Submitted September 14, 2009;
    decided September 17, 2009
    Reported below, 64 AD3d 168.
   Motion by City of New York for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    In the Matter of Daniel Goldstein et al., Appellants, v New York State Urban Development Corporation, Doing Business as Empire State Development Corporation, Respondent.
    Submitted September 14, 2009;
    decided September 17, 2009
    Reported below, 64 AD3d 168.
   Motion by Fifth Avenue Committee 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 24 copies filed within seven days.


text:
    Eugenia Brennan Heslin, as Administrator of the Estate of Egypt A. Phillips, Deceased, Appellant, v County of Greene et al., Respondents, et al., Defendants.
    Submitted July 13, 2009;
    decided September 17, 2009
    Reported below, 53 AD3d 996.
   Motion, insofar as it seeks to strike the brief and appendix of the County of Greene Department of Social Services and County of Greene Child Protective Services, denied; motion, insofar as it seeks to expand the record to include the responsive documentation submitted by appellant, granted; motion, insofar as it seeks an enlargement of time to submit a reply brief, denied.


text:
    Eugenia Brennan Heslin, as Administrator of the Estate of Egypt A. Phillips, Deceased, Appellant, v County of Greene et al., Respondents, et al., Defendants.
    Submitted July 27, 2009;
    decided September 17, 2009
    Reported below, 53 AD3d 996.
   Motion to vacate this Court’s July 6, 2009 preclusion order granted, and the County of Greene’s brief is accepted as filed, except to the extent that the January 12, 2005 letter attached as part of the appendix to the County’s brief is deemed stricken.


text:
    Kenneth J. Lewis et al., Appellants, v New York State Department of Civil Service et al., Respondents. Margaret Godfrey et al., Appellants, v Andrew J. Spano et al., Respondents. New York State Comptroller, Intervenor-Respondent.
    Submitted September 14, 2009;
    decided September 17, 2009
    Reported below, 60 AD3d 216; 57 AD3d 941.
   Motion by New York State United Teachers for leave to file a brief amicus curiae on the appeals herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Kenneth J. Lewis et al., Appellants, v New York State Department of Civil Service et al., Respondents. Margaret Godfrey et al., Appellants, v Andrew J. Spano et al., Respondents. New York State Comptroller, Intervenor-Respondent.
    Submitted September 14, 2009;
    decided September 17, 2009
    Reported below, 60 AD3d 216; 57 AD3d 941.
   Motion by City of New York for leave to file a brief amicus curiae on the appeals herein granted and the proposed brief is accepted as filed.


text:
    Kenneth J. Lewis et al., Appellants, v New York State Department of Civil Service et al., Respondents. Margaret Godfrey et al., Appellants, v Andrew J. Spano et al., Respondents. New York State Comptroller, Intervenor-Respondent.
    Submitted September 14, 2009;
    decided September 17, 2009
    Reported below, 60 AD3d 216; 57 AD3d 941.
   Motion by New York City Bar Association for leave to appear amicus curiae on the appeals herein granted only to the extent that the proposed brief is accepted as filed.


text:
    Kenneth J. Lewis et al., Appellants, v New York State Department of Civil Service et al., Respondents. Margaret Godfrey et al., Appellants, v Andrew J. Spano et al., Respondents. New York State Comptroller, Intervenor-Respondent.
    Submitted September 14, 2009;
    decided September 17, 2009
    Reported below, 60 AD3d 216; 57 AD3d 941.
   Motion by Tobias Barrington Wolff et al. for leave to appear amici curiae on the appeals herein granted only to the extent that the proposed brief is accepted as filed.


text:
    Kenneth J. Lewis et al., Appellants, v New York State Department of Civil Service et al., Respondents.
    Submitted September 14, 2009;
    decided September 17, 2009
    Reported below, 60 AD3d 216.
   Motion by New York State Bar Association for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Kenneth J. Lewis et al., Appellants, v New York State Department of Civil Service et al., Respondents. Margaret Godfrey et al., Appellants, v Andrew J. Spano et al., Respondents. New York State Comptroller, Intervenor-Respondent.
    Submitted September 14, 2009;
    decided September 17, 2009
    Reported below, 60 AD3d 216; 57 AD3d 941.
   Motion by New York Civil Liberties Union et al. for leave to file a brief amici curiae on the appeals herein granted and the proposed brief is accepted as filed.


text:
    In the Matter of Raymond C. Miller Sr., Appellant, v Patricia A. Miller, Respondent.
    Submitted July 13, 2009;
    decided September 17, 2009
    Reported below, 63 AD3d 1323.
   Motion for leave to appeal dismissed upon the ground that the appellant is not a party aggrieved.


text:
    In the Matter of Osbourne S., Respondent, v Regina S., Appellant.
    Submitted July 13, 2009;
    decided September 17, 2009
    Reported below, 55 AD3d 465.
   Motion for leave to appeal dismissed upon the ground that it does not lie (see NY Const, art VI, § 3 [b]; CPLR 5602).


text:
    The People of the State of New York, Respondent, v Danny Colon, Appellant. The People of the State of New York, Respondent, v Anthony Ortiz, Appellant.
    Submitted September 14, 2009;
    decided September 17, 2009
    Reported below, 55 AD3d 444.
   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 24 copies filed within seven days.

Chief Judge Lippman taking no part.


text:
    The People of the State of New York, Respondent, v Danny Colon, Appellant. The People of the State of New York, Respondent, v Anthony Ortiz, Appellant.
    Submitted September 14, 2009;
    decided September 17, 2009
    Reported below, 55 AD3d 444.
   Motion by Center on the Administration of Criminal Law for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.

Chief Judge Lippman taking no part.


text:
    The People of the State of New York, Respondent, v Christopher A. Doku, Appellant.
    Decided September 17, 2009
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no civil appeal lies from an order of City Court entered in a criminal action or proceeding (see NY Const, art VI, § 3 [b]; CPLR 5601; CPL 450.90).


text:
    The People of the State of New York, Respondent, v Nathan J. Reome, Appellant.
    Submitted September 14, 2009;
    decided September 17, 2009
    Reported below, 64 AD3d 1201.
   Motion for assignment of counsel granted and Frank H. His-cock Legal Aid Society, 351 S. Warren Street, Syracuse, New York 13202 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Charles Smith, Appellant.
    Submitted September 14, 2009;
    decided September 17, 2009
    Reported below, 62 AD3d 411.
   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 Rahjeem Williams, Appellant.
    Submitted September 14, 2009;
    decided September 17, 2009
    Reported below, 61 AD3d 470.
   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 Anthony Wise, Appellant.
    Decided September 17, 2009
    Reported below, 61 AD3d 900.
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no civil appeal lies from the order of the Appellate Division entered in this criminal proceeding {see NY Const, art VI, § 3 [b]; CPLR 5601; CPL 450.90).


text:
    The People of the State of New York ex rel. Gregory Boomer, Appellant, v James Conway, Respondent.
    Submitted July 13, 2009;
    decided September 17, 2009
   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; CPLR 5602).


text:
    The People of the State of New York ex rel. David Kae, Appellant, v James T. Conway, Superintendent, Attica Correctional Facility, Respondent.
    Submitted July 13, 2009;
    decided September 17, 2009
    Reported below, 2009 NY Slip Op 70296(U).
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    In the Matter of Robert Santagata, Appellant, v Lori Currier Woods, Respondent.
    Decided September 17, 2009
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Second Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).


text:
    Richard E. Snyder, Appellant, v Edgar M. Bronfman, Jr., Respondent.
    Submitted September 14, 2009;
    decided September 17, 2009
    Reported below, 57 AD3d 393.
   Motion by Business Council of New York State, 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 24 copies filed within seven days.


text:
    In the Matter of Ivey Walton et al., Appellants, v New York State Department of Correctional Services, Respondent, et al., Respondent.
    Submitted September 14, 2009;
    decided September 17, 2009
    Reported below, 57 AD3d 1180.
   Motion by the Sentencing Project 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 24 copies filed within seven days.


text:
    In the Matter of Ivey Walton et al., Appellants, v New York State Department of Correctional Services, Respondent, et al., Respondent.
    Submitted September 14, 2009;
    decided September 17, 2009
    Reported below, 57 AD3d 1180.
   Motion by the Legal Aid Society for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    In the Matter of Ivey Walton et al., Appellants, v New York State Department of Correctional Services, Respondent, et al., Respondent.
    Submitted September 14, 2009;
    decided September 17, 2009
    Reported below, 57 AD3d 1180.
   Motion by the Innocence Project 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 24 copies filed within seven days.


author: Memorandum. Smith, J. (concurring).

text:
    [916 NE2d 430, 887 NYS2d 536]
    The People of the State of New York, Respondent, v Shannon M. Kolupa, Appellant.
    Decided September 22, 2009
    APPEARANCES OF COUNSEL

      Frank J. Nebush, Jr., Public Defender, Criminal Division, Utica {Esther Cohen Lee of counsel), for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant failed to preserve his argument that the People introduced insufficient evidence to corroborate the child victim’s testimony. At the close of the People’s case, the trial court denied defendant’s motion to dismiss and defendant proceeded to present his own evidence. He did not thereafter renew the motion to dismiss at the close of his proof or specifically argue that there was not sufficient corroboration of the victim’s statements. As a result, this issue is not reviewable (see e.g. People v Lane, 7 NY3d 888, 889 [2006]; People v Payne, 3 NY3d 266, 273 [2004]; People v Hines, 97 NY2d 56, 61-62 [2001]). Defendant’s remaining contention is without merit.

Smith, J. (concurring).

Today’s decision correctly applies People v Hines (97 NY2d 56, 61-62 [2001]). I have expressed my unhappiness with Hines before (People v Payne, 3 NY3d 266, 273 [2004, R.S. Smith, J., concurring]), but this case, in which the Appellate Division did not mention preservation, defendant does not argue the issue, and the Appellate Division’s decision on the merits seems clearly correct, is not the right one for further examination of the Hines rule.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur; Judge Smith concurs in a separate concurring opinion.

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:
    Robin Adair et al., Respondents, v Municipal Utility Commission of the Village of Bath, Doing Business as Bath Electric, Gas and Water Systems, et al., Appellants.
    Decided September 22, 2009
    Reported below, 63 AD3d 1606.
   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. CPLR 5602 (a) (2) does not apply to appeals filed as of right.


text:
    In the Matter of Tommy Alejandro, an Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Decided September 22, 2009
    Reported below, 65 AD3d 63.
   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 Benson Point Realty Corporation, Appellant, v Town of East Hampton, Respondent.
    Submitted July 27, 2009;
    decided September 22, 2009
    Reported below, 62 AD3d 989.
   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 and is not an order of the type provided for in CPLR 5602 (a) (2).


text:
    In the Matter of Winford Kent Bishop, an Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted August 10, 2009;
    decided September 22, 2009
    Reported below, 54 AD3d 1.
   Motion for reargument of motion for leave to appeal denied [see 12 NY3d 715 (2009)].

Chief Judge Lippman taking no part.


text:
    Christopher Caraballo et al., Respondents, v City of Yonkers, Appellant.
    Submitted July 20, 2009;
    decided September 22, 2009
    Reported below, 54 AD3d 796.
   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:
    Commissioner of Social Services of the City of New York, as Assignee of Lorraine C., Respondent, v Irving H., Appellant.
    Decided September 22, 2009
    Reported below, 60 AD3d 452.
   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.


text:
    In the Matter of Salvatore Cristiano, Doing Business as L & S Tailor, Appellant. Commissioner of Labor, Respondent.
    Submitted July 20, 2009;
    decided September 22, 2009
    Reported below, 62 AD3d 1219.
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the nonfinal order sought to be reviewed on appeal does not necessarily affect the Appellate Division order affirming the final order, as required by CPLR 5601 (d), and thus cannot provide a constitutional predicate for the appeal. Motion for leave to appeal denied.


text:
    Estate of James Brown et al., Respondents, v The Pullman Group, Appellant.
    Submitted July 27, 2009;
    decided September 22, 2009
    Reported below, 60 AD3d 481.
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Supreme Court’s order denying appellant’s motion for leave to renew and to amend its answer, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Bernard H. Glatzer, Appellant, v Bear, Stearns & Co., Inc., et al., Respondents. Bernard H. Glatzer, Appellant, v Michael A. Cardozo et al., Respondents.
    Decided September 22, 2009
    Reported below, 2009 NY Slip Op 70935(U).
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.

Chief Judge Lippman taking no part.


text:
    In the Matter of Ernest A. Hunter, Appellant, v Commissioner of the Division of Housing and Community Renewal, Respondent.
    Decided September 22, 2009
    Reported below, 2009 NY Slip Op 72456(U).
   Appeal, insofar as taken from that part of the Appellate Division order that denied appellant’s motion for reargument, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that such portion of the order does not finally determine the proceeding within the meaning of the Constitution; appeal otherwise dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.

Chief Judge Lippman taking no part.


text:
    In the Matter of Joshua H. Grace N., Nonparty Appellant; Christopher R. et al., Respondents.
    Submitted July 27, 2009;
    decided September 22, 2009
    Reported below, 62 AD3d 795.
   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. Motion for leave to appeal denied.


text:
    Paul Kuhne, Appellant, v Cohen & Slamowitz, LLP, et al., Respondents.
    Decided September 22, 2009

      See 579 F3d 189.
   Certification of questions by the United States Court of Appeals for the Second Circuit, pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), accepted and the issues presented are to be considered after briefing and argument.

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


text:
    Frederick Lawrence et al., Individually and on Behalf of Alexander A. Lawrence, an Infant, Plaintiff, and Marion Lawrence, Appellant, v Albany County Department for Children, Youth and Families, Respondent. (And Other Related Actions.)
    Submitted July 27, 2009;
    decided September 22, 2009
    Reported below, 61 AD3d 1126.
   On the Court’s own motion, appeal, insofar as taken from that part of the Appellate Division order that affirmed the dismissal of the complaint, dismissed, without costs, upon the ground that no appeal lies as of right from that part of the unanimous Appellate Division order absent the direct involvement of a substantial constitutional question; appeal otherwise dismissed, without costs, upon the ground that the remainder of the Appellate Division order does not finally determine the action within the meaning of the Constitution. Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed the dismissal of the complaint, denied; motion, insofar as it seeks leave to appeal from the remainder of the Appellate Division order, dismissed upon the ground that it 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 Diane Word, Appellant.
    Submitted August 3, 2009;
    decided September 22, 2009
    Reported below, 43 AD3d 773.
   Motion to vacate this Court’s July 13, 2009 dismissal order denied [see 12 NY3d 922 (2009)].


text:
    The People of the State of New York ex rel. Charles A. Dingle, Appellant, v James T. Conway, Superintendent, Attica Correctional Facility, Respondent.
    Submitted August 3, 2009;
    decided September 22, 2009
    Reported below, 60 AD3d 1440.
   Motion for reargument of motion for leave to appeal denied [see 12 NY3d 714 (2009)].


text:
    John V. Ribis, Appellant, v East Irondequoit Central School District et al., Respondents.
    Decided September 22, 2009
    Reported below, 61 AD3d 1386.
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Seneca Pipe & Paving Co., Inc., Appellant, v South Seneca Central School District et al., Respondents, et al., Defendant. (And Two Other Actions.)
    Submitted July 27, 2009;
    decided September 22, 2009
    Reported below, 63 AD3d 1556, 1558.
   Motion, insofar as it seeks leave to appeal from the Appellate Division order in the action bearing index Number 34140, dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Anselmo Soto, Jr., Appellant, v Brian Fischer, Respondent.
    Submitted August 17, 2009;
    decided September 22, 2009
    Reported below, 60 AD3d 1074.
   Motion for reconsideration of this Court’s June 25, 2009 dismissal order denied [see 12 NY3d 900 (2009)].


text:
    In the Matter of Diane Word, Appellant, v Superintendent of Bedford Hills Correctional Facility et al., Respondents.
    Decided September 22, 2009
    Reported below, 2009 NY Slip Op 73917(U).
   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:
    Dominika Zakrzewska, Respondent, v The New School, Appellant, et al., Defendant.
    Decided September 22, 2009

      See 574 F3d 24.
   Certification of a question by the United States Court of Appeals for the Second Circuit, pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), accepted and the issues presented are to be considered after briefing and argument.

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


text:
    [918 NE2d 885, 890 NYS2d 373]
    In the Matter of Transitional Services of New York for Long Island, Inc., Respondent-Appellant, v New York State Office of Mental Health et al., Appellants-Respondents.
    Argued September 15, 2009;
    decided October 15, 2009

      APPEARANCES OF COUNSEL

      Andrew M. Cuomo, Attorney General, New York City (.Benjamin N. Gutman, Barbara D. Underwood and Carol Fischer of counsel), for appellants-respondents.

      Garfunkel, Wild & Travis, EC., Great Neck (Roy W. Breitenbach of counsel), and Law Office of Bruno La Spina, Brent-wood, for respondent-appellant.

      Manatí, Phelps & Phillips, LLP, Albany (James W. Lytle of counsel), for Association for Community Living, amicus curiae.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and the petition, insofar as it seeks to annul the determination of the New York State Office of Mental Health dated April 19, 2004, dismissed.

Transitional Services of New York for Long Island, Inc. (TSLI) is a private not-for-profit entity that provides housing and care to individuals with mental illness. Pursuant to statute (see Mental Hygiene Law §§ 41.38, 41.44), the New York State Office of Mental Health (OMH) works with and provides state aid to entities like TSLI. TSLI commenced this CPLR article 78 proceeding to challenge two OMH determinations.

It is well settled that when an agency acts within its area of expertise in interpreting statutes it is responsible for administering, its construction of those statutes is to be upheld if its decision is not irrational or unreasonable (see e.g. Matter of Brooklyn Assembly Halls of Jehovah’s Witnesses, Inc. v Department of Envtl. Protection of City of N.Y., 11 NY3d 327, 334 [2008]). It was not irrational or unreasonable for OMH to determine that, for reimbursement purposes, under the Mental Hygiene Law and the regulations promulgated thereunder (see Mental Hygiene Law § 41.38; 14 NYCRR 595.12), the expenses TSLI incurred in leasing residential apartments it used as offices must be accounted for as operating costs rather than as housing costs. The Appellate Division’s order to the contrary should be reversed.

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

Order, insofar as appealed from, reversed, etc.

        TSLI cross-appealed from the portion of the Appellate Division order that obligated TSLI to remit the amount of $563,820 to OMH, representing half of the income TSLI received from Medicaid funds above the amount of Medicaid income budgeted for the years 1996 through 2002. However, after TSLI took its cross appeal, OMH waived liability under its turnover policy as to all providers, including TSLI, for the years 1996 through 2002. OMH moved to dismiss the cross appeal for mootness and by motion, decided with this appeal, the cross appeal is being dismissed (13 NY3d 810 [2009] [decided today]). There being no live controversy with respect to the turnover determination challenged, TSLI’s cross appeal is moot (Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801, 810-811 [2003]).


text:
    [918 NE2d 887, 890 NYS2d 375]
    In the Matter of the Arbitration between Buffalo Professional Firefighters Association, Inc., Local 282, IAFF, AFL-CIO-CLC, Respondent, and Anthony Masiello, as Mayor of the City of Buffalo, et al., Appellants.
    Argued September 10, 2009;
    decided October 15, 2009

      APPEARANCES OF COUNSEL

      Hodgson Russ LLP, Buffalo (Jeffrey F. Swiatek, Jason E. Market and Joshua Feinstein of counsel), for appellants.

      Creighton, Pearce, Johnsen & Giroux, Buffalo (E. Joseph Giroux, Jr., and Jonathan G. Johnsen of counsel), and Sammarco, Mattacola & Sammarco for respondent.

      David P. Quinn, Albany, for State of New York Public Employment Relations Board, amicus curiae.
   OPINION OF THE COURT

Memorandum.

The Appellate Division order should be modified, without costs, by vacating the arbitration award in its entirety and, as so modified, affirmed.

Recognizing that stalled collective bargaining negotiations between municipalities and police or firefighters’ unions could jeopardize public safety, the Legislature created a system whereby impasses in such negotiations are first submitted to mediation and then, if they remain unresolved, proceed to compulsory public interest arbitration (see Civil Service Law § 209 [4]). There, an arbitration panel selected by the parties— one member by the city, one by the union and a third by both—is required to make “a just and reasonable determination of the matters in dispute,” taking into account certain enumerated factors (id. § 209 [4] [c] [v]). A party may commence a CPLR article 75 proceeding to challenge a compulsory public interest arbitration award (Caso v Coffey, 41 NY2d 153, 156 [1976]); on such a proceeding, the reviewing court examines the award to determine whether it is rational (see id. at 158). Here, the Appellate Division appropriately concluded that the issue of health insurance was not an issue before the arbitration panel, inasmuch as the parties agreed, as part of their memorandum of agreement on health insurance, that the City would withdraw its sole health insurance proposal from the panel’s consideration. Thus, the Appellate Division appropriately vacated that part of the award.

However, the Appellate Division erred in vacating only the health insurance portion of the arbitration award. The arbitration panel did not consider the issue of wages in isolation. Indeed, the arbitration panel explained that it was rejecting the City’s wage proposal, but that it would generate savings for the City on the health insurance portion of the arbitration award. As the parties agree, the separate portions of the arbitration award were so interdependent, no part thereof could be vacated without affecting the merits of the remainder of the award. While the parties debate whether CPLR 7511 (c) is applicable here, we need not reach the issue.

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

Order modified, etc.

       While this determination appears to award affirmative relief to a nonappellant, the appellant to this Court stated that if this Court agrees with the Appellate Division rationale on the issue of health insurance, a total vacatur of the award is required.


text:
    [918 NE2d 884, 890 NYS2d 372]
    The People of the State of New York, Respondent, v J.W. Hardy, Jr., Appellant.
    Argued September 17, 2009;
    decided October 15, 2009
    APPEARANCES OF COUNSEL

      James S. Hinman, Rochester, for appellant.

      Joseph V. Cardone, District Attorney, Albion (.Katherine Bogan of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. At issue is whether defendant was properly convicted of escape in the second degree (see Penal Law § 205.10 [2]). We hold that he was.

On December 6, 2004, defendant pleaded guilty to a class D felony (criminal possession of a controlled substance in the fifth degree) in the Orleans County Court. The matter was adjourned to February 14, 2005 for sentencing. Defendant was free on bail during this period. On February 14th, after the parties appeared, there was an off-the-record discussion between the court and counsel which resulted in a two-week adjournment. The court then stated that it was going to increase defendant’s bail from $10,000 to $20,000. At this time, the court told defendant:

“Should you post bail [and] not appear in court, I will assume you’ve given up your rights and breached your obligation to be here. If that occurs, I will proceed without you and get a warrant for your arrest and consider forfeiting your bond.”

After the court issued its order increasing bail, deputies handcuffed defendant behind his back, seated him in a public hallway in the courthouse (there was no holding cell in the courthouse) and told him to remain there. Shortly thereafter, while the deputies waited for the court clerk to prepare a securing order committing defendant to custody, defendant, with his hands still handcuffed behind his back, made his way down to the basement, held the back door open for an employee of the County Clerk’s Office to enter, and left the courthouse. He was apprehended in a nearby apartment about 20 minutes later.

Defendant was charged with escape in the second degree. After a jury trial, defendant was convicted of that crime and sentenced to an indeterminate prison term of 2 to 4 years. The Appellate Division affirmed.

Defendant argues that because there was no signed securing order or stated direction by the court that defendant be taken into custody, the evidence presented at trial was not legally and factually sufficient to support his conviction for second degree escape. We disagree.

Under the Penal Law, “a person is guilty of escape in the second degree when . . . [h]aving been arrested for, charged with or convicted of a class C, class D or class E felony, he escapes from custody” (Penal Law § 205.10 [2]). “Custody” is defined as “restraint by a public servant pursuant to an authorized arrest or an order of a court” (Penal Law § 205.00 [2] [emphasis added]). Discussing Penal Law § 205.10 (2), this Court stated:

“[W]e are concerned with whether defendant escaped the realm of custody—the restraint imposed by the public servant (see Penal Law § 205.00 [2]). Such escape, as defined by the New York Criminal Jury Instructions, ‘means to get away, break away, get free or get clear, with the conscious purpose to evade custody’ (CJI 2d [NY] Penal Law § 205.10 [2]). Indeed, as we explained in People v Hutchinson (56 NY2d 868, 870 [1982]), ‘[t]he commonly understood definition of the verb “escape” is “to get away (as by flight or conscious effort): break away, get free or get clear” ’ ” (People v Antwine, 8 NY3d 671, 674 [2007]).

To make out escape in the second degree, the People were required to establish that defendant broke free or got away from the restraint or control of the deputies. Here, such restraint or control was authorized pursuant to County Court’s order increasing bail which, along with the court’s statements following the bail increase and defendant’s immediately being placed in handcuffs, made it clear that defendant was not free to just leave. Because the People proved that defendant removed himself from the lawful custody of the deputies without authorization, they met their burden and the elements of Penal Law § 205.10 (2) were satisfied.

Defendant’s remaining contentions are either not reviewable or meritless.

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

Order affirmed in a memorandum.

       It appears that defendant’s bail was to be increased due to the possibility of new charges being filed against him.


text:
    Miguel Andrade, Appellant, v New York City Police Department, Respondent.
    Submitted August 3, 2009;
    decided October 15, 2009
    Reported below, 2009 NY Slip Op 75789(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:
    Astoria Federal Savings & Loan Association/Fidelity New York FSB, Respondent, v Marilyn Lane, Appellant, and Frances Turner et al., Intervenors-Respondents.
    Submitted August 17, 2009;
    decided October 15, 2009
    Reported below, 64 AD3d 454.
   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:
    Buffalo Crushed Stone, Inc., Appellant, v Town of Cheektowaga, Respondent.
    Submitted August 17, 2009;
    decided October 15, 2009
    Reported below, 55 AD3d 1228.
   Motion for reargument denied [see 13 NY3d 88 (2009)].


text:
    The People of the State of New York, Respondent, v Leonard A. Leopold, Appellant.
    Submitted October 13, 2009;
    decided October 15, 2009
    Reported below, 63 AD3d 1631.
   Motion for poor person relief granted.


text:
    The People of the State of New York, Respondent, v Ramon Ramos, Appellant.
    Submitted October 5, 2009;
    decided October 15, 2009
    Reported below, 61 AD3d 783.
   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 Roland Ramos, Appellant.
    Submitted September 28, 2009;
    decided October 15, 2009
    Reported below, 60 AD3d 1091.
   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 Juan Rivera, Appellant.
    Submitted September 21, 2009;
    decided October 15, 2009
    Reported below, 2009 NY Slip Op 67638(U).
   Motion by Appellate Courts Committee of the New York County Lawyers’ Association for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    The People of the State of New York, Respondent, v Paris Simmons, Appellant.
    Submitted October 13, 2009;
    decided October 15, 2009
    Reported below, 66 AD3d 292.
   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 Christian Tabb, Appellant.
    Submitted September 21, 2009;
    decided October 15, 2009
    Reported below, 59 AD3d 1080.
   Motion for assignment of counsel granted and David C. Schopp, Esq., Legal Aid Bureau of Buffalo, Inc., 237 Main Street, Suite 1602, Buffalo, New York 14203 assigned as counsel to the appellant on the appeal herein.


text:
    In the Matter of the Claim of Vadim Takser, Appellant. New York Compensation Insurance Rating Board, Respondent; Commissioner of Labor, Respondent.
    Submitted August 3, 2009;
    decided October 15, 2009
    Reported below, 63 AD3d 1478.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Tasha M., an Infant. Monroe County Department of Human Services, Respondent; Tracy G.-O., Appellant, et al., Respondent.
    Submitted August 3, 2009;
    decided October 15, 2009
    Reported below, 63 AD3d 1628.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Transitional Services of New York for Long Island, Inc., Respondent-Appellant, v New York State Office of Mental Health et al., Appellants-Respondents.
    Submitted August 24, 2009;
    decided October 15, 2009
    Reported below, 44 AD3d 673.
   Motion to dismiss the cross appeal by petitioner herein granted, without costs, and cross appeal dismissed as moot.


text:
    Sharon Wechsler, Appellant, v Norman Wechsler, Respondent.
    Submitted July 27, 2009;
    decided October 15, 2009
    Reported below, 58 AD3d 62.
   Motion for reconsideration of this Court’s June 11, 2009 dismissal order denied [see 12 NY3d 883 (2009)].

Chief Judge Lippman taking no part.


text:
    [918 NE2d 944, 890 NYS2d 432]
    Eva Flores, Appellant, v Langsam Property Services Corp. et al., Respondents.
    Decided October 20, 2009
    APPEARANCES OF COUNSEL

      Raymond Schwartzberg & Associates, PLLC, New York City (Steven I. Brizel of counsel), for appellant.

      McMahon, Martine & Gallagher, LLP, Brooklyn {Patrick W. Brophy of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff failed to raise a triable issue of fact regarding defendants’ actual or constructive notice of the particular dangerous condition that allegedly caused her injuries (see Gordon v American Museum of Natural History, 67 NY2d 836, 838 [1986]).

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.