author: Read, J.

text:
    [912 NE2d 54, 884 NYS2d 222]
    In the Matter of the Arbitration between Central Mutual Insurance Company, Respondent, and Beverly Bemiss, Appellant.
    Argued June 3, 2009;
    decided June 25, 2009

      POINTS OF COUNSEL

      Powers & Santola, LLP, Albany (Michael J. Hutter of counsel), and Capasso & Massaroni, LLP, Schenectady, for appellant.
    I. Determination of respondent’s arguments on this appeal in support of her contention that she is entitled to arbitration of her supplementary uninsured/underinsured motorist (SUM) claim pursuant to her SUM coverage in the policy issued to her by petitioner must comport with Regulation 35-D’s stated purpose of maximizing the benefit of SUM coverage to the SUM insured. (Matter of Utica Mut. Ins. Co. [Hurd], 221 AD2d 903; Matter of Prudential Prop. & Cas. Co. v Szeli, 83 NY2d 681; S’Dao v National Grange Mut. Ins. Co., 87 NY2d 853; Matter of Metropolitan Prop. & Cas. Ins. Co. v Mancuso, 93 NY2d 487; Reichel v Government Empls. Ins. Co., 66 NY2d 1000; North Star Reins. Corp. v Continental Ins. Co., 82 NY2d 281; Winkelmann v Excelsior Ins. Co., 85 NY2d 577; Matter of State Farm Mut. Auto. Ins. Co. v Lucano, 11 AD3d 548; New York Cent. Mut. Fire Ins. Co. v Danaher, 290 AD2d 783; Matter of State Farm Mut. Auto. Ins. Co. v Hardina, 225 AD2d 486.) II. Respondent’s settlement in this multiple tortfeasor situation with the first tortfeasor for her policy limits without the written consent of petitioner and a preservation of petitioner’s subrogation rights against the first tortfeasor and without exhaustion of the policy limits of the second tortfeasor was permissible as it was entered into in accordance with the conditions necessary to trigger her supplementary uninsured/underinsured motorist coverage. (Matter of Atlantic Mut. Ins. Co. v Cooper, 247 AD2d 209; Matter of Transportation Ins. Co. [Pecoraro], 270 AD2d 851; Matter of Hertz Claim Mgt. Corp. v Kulakowich, 53 AD3d 578; Matter of Aetna Cas. & Sur. Co. v Crown, 181 AD2d 883; Matter of Poole [State Farm Auto. Ins. Co.], 164 Misc 2d 697; Huth v Nationwide

      Ins. Co., 148 Misc 2d 1003; S’Dao v National Grange Mut. Ins. Co., 87 NY2d 853; Matter of Liberty Mut. Ins. Co. v Doherty, 13 AD 3d 629.) III. Once respondent properly settled in this multiple tortfeasor situation with the first tortfeasor for her policy limits, respondent’s further settlement with the second tortfeasor, which was entered into without obtaining petitioner’s consent and protecting petitioner’s subrogation right as against the second tortfeasor, did not render her supplementary uninsured/underinsured motorist coverage unavailable. (Weinberg v Transamerica Ins. Co., 62 NY2d 379; County of Columbia v Continental Ins. Co., 83 NY2d 618; Hartford Ins. Co. of Midwest v Halt, 223 AD2d 204; S’Dao v National Grange Mut. Ins. Co., 87 NY2d 853; Rekemeyer v State Farm Mut. Auto. Ins. Co., 4 NY3d 468.)

      Goldberg Segalla LLP, Albany (Jonathan M. Bernstein of counsel), for respondent.
    Beverly Bemiss violated the policy by executing a release with John Genski/Progressive Northeastern Insurance Company (Genski/Progressive) without providing notice to, and obtaining approval from, Central Mutual Insurance Company (Central), and waiving Central’s right to subrogation against Genski/Progressive. (Allstate Ins. Co. v Stein, 1 NY3d 416; Ocean Acc. & Guar. Corp. v Hooker Electrochemical Co., 240 NY 37; Weinberg v Transamerica Ins. Co., 62 NY2d 379; Matter of American Home Assur. Co. v Williams, 282 AD2d 674; Matter of State Farm Mut. Auto. Ins. Co. v Lucano, 11 AD3d 548; Matter of Transportation Ins. Co. [Pecoraro], 270 AD2d 851; Matter of Allstate Ins. Co. [Liberati], 280 AD2d 922; Matter of New York Cent. Mut. Fire Ins. Co. [Cavanagh], 265 AD2d 787, 94 NY2d 760; Matter of Nationwide Mut. Ins. Co. [Tarsia], 265 AD2d 936; New York Cent. Mut. Fire Ins. Co. v Danaher, 290 AD2d 783.)

      Fiedelman & McGaw, Jericho (Andrew Zajac, Dawn C. DeSimone, Rona L. Platt, Brendan T. Fitzpatrick and David B. Hamm of counsel), and Thomas J. Maroney for Defense Association of New York, Inc., amicus curiae.
    I. Beverly Bemiss waived Central Mutual Insurance Company’s (Central) right to subrogation and breached her contract with Central when she settled her case with John Genski/Progressive Northeastern Insurance Company and executed a general release without obtaining approval from Central. (Matter of Wallace v 600 Partners Co., 86 NY2d 543; Breed v Insurance Co. of N. Am., 46 NY2d 351; Kaf-Kaf, Inc. v Rodless Decorations, 90 NY2d 654; Weinberg v Transamerica Ins. Co., 62 NY2d 379; Matter of Transportation Ins.

      Co. [Pecoraro], 270 AD2d 851; Matter of Nationwide Mut. Ins. Co. [Tarsia], 265 AD2d 936; New York Cent. Mut. Fire Ins. Co. v Danaher, 290 AD2d 783.) II. The public policy underpinnings of insurers’ long-established and recognized right of subrogation dictate affirmance of the order appealed from. (Propeller Monticello v Mollison, 17 How [58 US] 152; Connecticut Fire Ins. Co. v Erie Ry. Co., 73 NY 399; Ocean Acc. & Guar. Corp. v Hooker Electrochemical Co., 240 NY 37; Weinberg v Transamerica Ins. Co., 62 NY2d 379; Pennsylvania Gen. Ins. Co. v Austin Powder Co., 68 NY2d 465; Federal Ins. Co. v Arthur Andersen & Co., 75 NY2d 366; Winkelmann v Excelsior Ins. Co., 85 NY2d 577; Fasso v Doerr, 12 NY3d 80; Matter of State Farm Mut. Auto. Ins. Co. v Lucano, 11 AD3d 548, 5 NY3d 717; New York Cent. Mut. Fire Ins. Co. v Danaher, 290 AD2d 783.)
   OPINION OF THE COURT

Read, J.

We are asked in this appeal whether consent-to-settle and subrogation-protection provisions in the supplementary uninsured/underinsured motorists (SUM) endorsement in an automobile liability insurance policy fall by the wayside once an insured has exhausted the available policy limits of a single tortfeasor in a multi-tortfeasor accident. We hold that these provisions remain in force and govern any settlements that the insured may subsequently make with other tortfeasors.

I.

During the morning rush hour on April 12, 2005, a chain-reaction automobile accident unspooled in the westbound lane of Interstate 90 in the City of Albany when the first car in the ensuing five-vehicle pileup stopped in traffic to avoid becoming entangled in a two-car collision. The vehicle driven by Beverly Bemiss (the third in line in the pileup) was struck twice in the rear—once by the vehicle driven by Kati Kowalczyk, the fourth in line; and again when the automobile driven by John Genski, the fifth in line, rear-ended Kowalczyk’s vehicle, pushing it into the back of Bemiss’s vehicle a second time. As a consequence of this accident, Bemiss seriously injured her right foot and ankle, which required surgery to repair the Achilles tendon.

Kowalczyk was insured for motor vehicle liability under a policy issued by Government Employees Insurance Company (GEICO), with bodily injury liability limits of $25,000; Genski was insured under a policy issued by Progressive Northeastern Insurance Company, also with bodily injury liability limits of $25,000. Central Mutual Insurance Company was Bemiss’s automobile liability insurance carrier. Her single limit policy provided $100,000 per accident for bodily injury and property damage, and a SUM endorsement for $100,000 per accident. The provisions in her SUM endorsement were prescribed by the New York State Department of Insurance (the Department) in Regulation 35-D (11 NYCRR subpart 60-2). And since both Kowalczyk’s and Genski’s bodily injury liability limits were less than Bemiss’s, her SUM coverage was activated or triggered as to each of them (see Matter of Prudential Prop. & Cas. Co. v Szeli, 83 NY2d 681, 685 n 1, 686-688 [1994]). SUM benefits are not payable, however, until the available policy limits of a single tortfeasor have been exhausted by payment or settlement (see S’Dao v National Grange Mut. Ins. Co., 87 NY2d 853, 854-855 [1995]).

By letter dated July 27, 2006, Bemiss’s attorney informed Central that GEICO, Kowalczyk’s insurance carrier, had tendered the policy limits of $25,000. He further advised that Bemiss intended to accept this offer and execute a release on or after August 27, 2006 unless Central advanced this amount to her in return for her cooperation in any lawsuit on her behalf. Central did not respond to the letter. Bemiss also at some point agreed to settle with Genski and his insurer, Progressive, for $2,500—i.e., less than the $25,000 policy limit. Bemiss never notified Central that she intended to settle with Genski, or solicited Central’s consent.

On December 21, 2006, Bemiss executed a single general release in favor of Kowalczyk, GEICO, Genski, and Progressive in consideration of the sum of $27,500—$25,000 from GEICO and $2,500 from Progressive. The release did not preserve Central’s subrogation rights with respect to any payment that might be made to Bemiss under her SUM coverage. Earlier in December (and therefore before exhausting Kowalczyk’s policy), Bemiss served Central with a request for arbitration, seeking $72,500 in SUM benefits.

On January 9, 2007, Central’s attorney wrote to Bemiss’s attorney to ask whether an action had been filed against Genski. On January 17, 2007, Bemiss’s attorney replied that his client had settled with Genski and his insurance carrier for $2,500, and that Bemiss was seeking $72,500 from Central under the SUM endorsement.

By letter dated January 26, 2007, Central disclaimed liability to Bemiss and denied coverage. Specifically referencing Condition 10 (without waiving any other ground that it might have for disclaimer), Central told Bemiss that she had violated policy conditions by “settling] with both responsible parties [i.e., Kowalczyk and Genski] in this loss, and in signing the release, waived [Central’s] subrogation rights.” Condition 10 allows an insured to collect under SUM coverage in a multiple-tortfeasor accident before exhaustion by settlement or judgment. Specifically, 30 days after having given the insurer notice of a tortfeasor’s offer to settle for the maximum available policy limits, the insured may execute a general release with the tortfeasor and retain SUM eligibility unless, in the meantime, the insurer has agreed to advance the settlement amount in exchange for the insured’s cooperation with its subrogation claim.

In March 2007, Bemiss served Central with another request for arbitration, having withdrawn the December notice after arbitration was temporarily stayed at Central’s behest. She again sought $72,500 in SUM benefits. And Central again successfully moved by order to show cause, entered on March 26, 2007, to stay arbitration temporarily pending disposition of its application for an order permanently staying arbitration and vacating Bemiss’s notice.

Central maintained that Bemiss was not entitled to SUM benefits because she did not protect its subrogation rights, give prior written notice of her intent to settle, or obtain its written consent before settling with Genski/Progressive. In opposition, Bemiss argued that

“[t]he policy . . . reads that when there are multiple tortfeasors, and one of those tortfeasors offers the maximum coverage under its policy, then written notice must be given of the policy tender before execution of a release. The policy [does not contain] any language that requires the insured to provide written notice for a partial tender from a second tortfeasor.”

In May 2007, Supreme Court granted Central’s application and permanently stayed arbitration, reasoning that, under the terms of the SUM endorsement, Central “expressly require[d] that it retain the right to subrogate regardless of the exact nature of the settlement.” Thus, “[e]ven if the Court were to accept [Bemiss’s] argument that once [she] settled for the entire amount of coverage with [GEICO], [she] could settle with Progressive without notice and consent of [Central], this argument does nothing to remedy the fact that [Bemiss] failed to preserve Central’s right to subrogate.” Bemiss appealed.

The Appellate Division, with one Justice dissenting, affirmed. As an initial matter—and contrary to Supreme Court’s assessment—both the majority and the dissenting Justice concluded that Condition 10 in the SUM endorsement “permitted [Be-miss] to settle with the first tortfeasor [Kowalczyk] without preserving [Central’s] subrogation rights” with respect to Kowalczyk (Matter of Central Mut. Ins. Co. [Bemiss], 54 AD3d 499, 500 [3d Dept 2008]). The majority, however, rejected Bemiss’s additional claim that once she qualified for SUM payments by exhausting Kowalczyk’s policy, she was free to settle with Gen-ski without obtaining Central’s prior written consent or safeguarding its subrogation rights. The dissent disagreed, and we granted Bemiss permission to appeal (11 NY3d 711 [2008]). We now affirm.

II.

To decide this appeal, we must examine the interplay of the consent-to-settle (Condition 10), exhaustion (Condition 9), and subrogation-protection (Condition 13) provisions in the standard SUM endorsement prescribed by Regulation 35-D, which the Department designed to “reduce confusion regarding [SUM] coverage, make it easier to collect benefits and, when disputes arise, make it simpler to resolve those disputes” (NY Reg, Apr. 22, 1992, at 21). To put these provisions in perspective, a bit of history is in order.

Insurance Law § 3420 (f) (2) (A) provides that “[a]s a condition precedent to the obligation of the insurer to pay under the [SUM] insurance coverage, the limits of liability of all bodily injury liability bonds or insurance policies applicable at the time of the accident shall be exhausted by payment of judgments or settlements.” And in S’Dao, we concluded that “the exhaustion requirement of section 3420 (f) (2) relates back to the statute’s reference to ‘another motor vehicle’ and indicates that the proper focus is on the underinsured status of each individual tortfeasor” (87 NY2d at 854). As a result, SUM benefits are payable in a multiple-tortfeasor accident once the insured exhausts the bodily injury liability limits applicable to any single tortfeasor. Our decision in S’Dao reversed the Appellate Division, which had interpreted the statute to require a SUM claimant to exhaust the bodily injury liability limits of the policies held by all tortfeasors—i.e., to exhaust the aggregate limits of liability of all applicable policies. Further, in Weinberg v Transamerica Ins. Co. (62 NY2d 379, 381-382 [1984]), we held that in settling personal injury claims arising out of a motor vehicle accident,

“an insured will be held to have prejudiced the subrogation rights of his insurer unless he establishes by express provision in the release ... or by necessary implication arising from the circumstances of the execution of the release that the settling parties reserved the rights of the insurer against the third-party tort-feasor or otherwise limited the extent of their settlement to achieve that result.”

As a corollary, an insured who settles with a tortfeasor without his carrier’s written consent forfeits SUM benefits (see State Farm Mut. Auto. Ins. Co. v Taglianetti, 122 AD2d 40 [2d Dept 1986]).

These principles created what commentators referred to as a “Catch-22” for the SUM claimant (see e.g. Dachs and Dachs, Insurance and No-Fault Law, The Underinsured Motorist, NYLJ, Dec. 11, 1990, at 3, col 1). That is, if the insured’s carrier withheld its consent to an offer of a tortfeasor’s full available policy limits in exchange for a general release (which was naturally always demanded), the insured faced unpalatable options: either refuse the offer and litigate the case to judgment in order to exhaust the tortfeasor’s policy and become eligible to receive SUM benefits, or accept the offer and risk losing SUM coverage on account of having prejudiced the carrier’s subrogation rights. The Department set out to eliminate this dilemma when it formulated Regulation 35-D.

To this end, Regulation 35-D, as initially drafted by the Department, mandated the following in the standard SUM endorsement as Conditions 7 and 8:

“7. Exhaustion Required: Except as provided in Condition 8, we will pay under this SUM coverage only after the limits of liability have been used up under all motor vehicle bodily injury liability insurance policies or bonds applicable at the time of the accident in regard to a person that may be legally liable for the bodily injury sustained by the insured.
“8. Release or Advance: In accidents involving the insured and one or more negligent parties, if such insured settles with all such parties for the aggregate limits of the liability coverage of such parties, release may be executed with such parties after thirty calendar days actual written notice to us, unless within this time period we agree to advance such settlement amounts to the insured in return for the cooperation of the insured in our lawsuit on behalf of the insured.
“We shall have a right to the proceeds of any such lawsuit equal to the amount advanced to the insured and any additional amounts paid under this SUM coverage. Any excess above those amounts shall be paid to the insured.
“An insured shall not otherwise settle with any negligent party, without our written consent, such that our rights would be impaired” (see Dachs and Dachs, The Undersinsured Motorist, NYLJ, Dec. 11, 1990, at 3, col 1 [discussing development of Department’s proposed Regulation 35-D]; Dachs and Dachs, Insurance and No-Fault Law, SUM Regulation Redux, NYLJ, June 9, 1992, at 3, col 1 [comparing text of proposed and final Regulation 35-D]).

Notice of proposed Regulation 35-D was published in the State Register on September 11, 1991.

In response to comments and criticism, Regulation 35-D was subsequently amended and another notice was published in the State Register on April 22, 1992. In the amended version, Conditions 7 and 8 of Regulation 35-D were renumbered Conditions 9 and 10, and provided respectively as follows:

“9. Exhaustion Required: Except as provided in Condition 10, we will pay under this SUM coverage only after the limits of liability have been used up under all motor vehicle bodily injury liability insurance policies or bonds applicable at the time of the accident in regard to any one person who may be legally liable for the bodily injury sustained by the insured.
“10. Release or Advance: In accidents involving the insured and one or more negligent parties, if such insured settles with any such party for the available limit of the motor vehicle bodily injury liability coverage of such party, release may be executed with such party after thirty calendar days actual written notice to us, unless within this time period we agree to advance such settlement amounts to the insured in return for the cooperation of the insured in our lawsuit on behalf of the insured.
“We shall have a right to the proceeds of any such lawsuit equal to the amount advanced to the insured and any additional amounts paid under this SUM coverage. Any excess above those amounts shall be paid to the insured.
“An insured shall not otherwise settle with any negligent party, without our written consent, such that our rights would be impaired” (11 NYCRR 60-2.3 [f]>.

By changing the reference in Condition 9 (former proposed Condition 7) from “a person that” to “any one person who,” eliminating the reference in Condition 10 (former proposed Condition 8) to “aggregate limits” and substituting the singular “party” for the plural “parties,” the Department unambiguously applied the exhaustion requirement in section 3420 (f) to any single tortfeasor, not to all potential tortfeasors. This is exactly how we subsequently interpreted the statute in S’Dao.

Urging us to read Conditions 9 and 10 together, Bemiss contends that “where multiple tortfeasors are involved and the insured has permissibly settled with one tortfeasor for his/her policy limits, . . . the insure[r] has no right under Regulation 35-D to be notified of and withhold consent to a settlement with another tortfeasor for less than his/her policy limit” even though Condition 10 mandates that “[a]n insured shall not otherwise settle with any negligent party, without our written consent, such that our rights would be impaired.” In her view, this restriction “is intended to apply to an insured seeking . . . to settle for the policy limits of [the first] tortfeasor . . . The goal is to allow the settlement to be consummated while giving the insurer the opportunity to protect its subrogation right”— i.e., to remedy the “Catch-22.” Bemiss argues that to read Condition 10 as governing an insured’s settlement with a second tortfeasor would “take away” what Condition 9 and our decision in S’Dao give—i.e., the rule that SUM benefits become payable in a multiple-tortfeasor accident after one tortfeasor’s policy has been exhausted.

As already noted, an insured generally may not settle with a tortfeasor without the SUM insurer’s written consent, and may not prejudice the SUM insurer’s subrogation rights. As to the latter point, Condition 13 of the SUM endorsement specifically states as follows:

“13. Subrogation: If we make a payment under this SUM coverage, we have the right to recover the amount of this payment from any person legally responsible for the bodily injury or loss of the person to whom, or for whose benefit, such payment was made to the extent of the payment. The insured or any person acting on behalf of the insured must do whatever is necessary to transfer this right of recovery to us. Except as permitted by Condition 10, such person shall do nothing to prejudice this right” (11 NYCRR 60-2.3 [f] [emphasis added]).

The final sentence of Condition 10—the crux of Bemiss’s argument—specifies that the insured “shall not otherwise settle with any negligent party, without [the SUM carrier’s] written consent, such that [the SUM carrier’s] rights would be impaired” (emphasis added). Looking at both this language and the structure of Condition 10, “otherwise” refers back to the settlement scenario delineated in the first sentence—i.e., an insured’s 30 days’ written notice to the insurer of a tortfeasor’s offer to settle for the maximum available policy limits. And while Bemiss contends that “any negligent party” refers only to the first tortfeasor whose policy is exhausted so as to make SUM benefits payable, this is not readily apparent from the words used or the regulatory history. In the original version of Condition 10 (former Condition 8), “any negligent party” clearly referred to all the tortfeasors in a multiple-tortfeasor accident. When the Department revised the SUM endorsement to make the exhaustion requirement applicable to any single tortfeasor rather than the aggregate limits of the liability coverage of all tortfeasors, it retained in new Condition 10 the stipulation that the insured could not “otherwise settle with any negligent party” (emphasis added). Bemiss, in effect, asks us to read this provision to mean “otherwise settle with the first party to tender the available limit of his/her motor vehicle bodily injury liability coverage.” Even if Bemiss’s interpretation of “any negligent party” were correct, there is nothing in the SUM endorsement to suggest that the subrogation-protection provisions in Condition 13 become inoperative once an insured has exhausted a single tortfeasor’s policy limits in a multipletortfeasor accident.

In short, Condition 10 delineates the sole situation in which an insured may settle with any tortfeasor in exchange for a general release, thus prejudicing the insurer’s subrogation rights, without the carrier’s written consent. Here, Bemiss violated Condition 10 when she settled with Genski for less than the maximum available policy limits without Central’s written consent, such that its subrogation rights were impaired. Moreover, this result is not inconsistent with our decision in S’Dao or Condition 9 of the SUM endorsement. In this case, Bemiss settled with Kowalczyk in compliance with Condition 10, thereby also fulfilling the exhaustion requirement in Condition 9. At that point, she was entitled to make a claim for $75,000 under her SUM coverage and, if Central disagreed, to proceed to arbitration. That is, she did not have to pursue a claim against Genski in order to become eligible to collect up to the remaining limits of her SUM policy. But once having chosen to resolve her claim against Genski, she was not free under the SUM endorsement to compromise Central’s subrogation rights unilaterally.

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

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

Order affirmed, with costs.

       Trade associations and insurers brought a CPLR article 78 proceeding to challenge Regulation 35-D, which resulted in a stay of enforcement and a delay in implementation (see Matter of National Assn. of Ind. Insurers v Curiale, 190 AD2d 597 [1st Dept 1993], lv denied 81 NY2d 711 [1993]; see also Dachs and Dachs, Insurance and No-Fault Law, The Latest on Regulation 35-D, NYLJ, Nov. 10, 1992, at 3, col 1; Dachs and Dachs, Insurance and No-Fault Law, Regulation 35-D: A Reality at Last, NYLJ, Sept. 14, 1993, at 3, col 1).


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    [912 NE2d 48, 884 NYS2d 216]
    In the Matter of Virginia Parkhouse, Appellant, v Scott M. Stringer, as Borough President of Manhattan, et al., Respondents.
    Argued June 2, 2009;
    decided June 25, 2009

      POINTS OF COUNSEL

      Whitney North Seymour, Jr., New York City, and Gabriel North Seymour, Falls Village, Connecticut, for appellant.
    I. The New York City Department of Investigations subpoena compelling petitioner to explain her public hearing testimony violated her constitutional free speech rights. (Bates v Little Rock, 361 US 516; Garcia v City of Trenton, 348 F3d 726; Terminiello v Chicago, 337 US 1; Whitney v California, 274 US 357; Greenbelt Cooperative Publishing Assn., Inc. v Bresler, 398 US 6.) II. New York City Charter § 803 is unconstitutional as applied to petitioner’s public hearing testimony. (Brown v Socialist Workers ’74 Campaign Comm. [Ohio], 459 US 87; United States v Powell, 379 US 48; Hartman v Moore, 547 US 250; Greenbelt Cooperative Publishing Assn., Inc. v Bresler, 398 US 6.)

      Michael A. Cardozo, Corporation Counsel, New York City (Alan G. Krams and Kristin M. Helmers of counsel), for respondents.
    The order appealed from should be affirmed because petitioner possesses information that is relevant to a lawful investigation by the New York City Department of Investigation. (Myerson v Lentini Bros. Moving & Stor. Co., 33 NY2d 250; Matter of Weintraub v Fraiman, 30 AD2d 784, 24 NY2d 918; Matter of Hirshfield v Hanley, 228 NY 346; Matter of A’Hearn v Committee on Unlawful Practice of Law of N.Y. County Lawyers’ Assn., 23 NY2d 916, 395 US 959; Matter of Levin v Murawski, 59 NY2d 35; Del Vecchio v White Plains Unit, Westchester County Ch., Civ. Serv. Empls. Assn., Local 860, 64 AD2d 975; Virag v Hynes, 54 NY2d 437; New York State Commn. on Govt. Integrity v Congel, 156 AD2d 274, 75 NY2d 836; Greenbelt Cooperative Publishing Assn., Inc. v Bresler, 398 US 6; Herbert v Lando, 441 US 153.)

      Matthew Faiella, New York City, and Arthur Eisenberg for New York Civil Liberties Union, amicus curiae.
    I. Virginia Park-house’s statements at issue here are protected by the First Amendment to the Federal Constitution and article I, § 8 of the New York Constitution. (Mills v Alabama, 384 US 214; 600 W. 115th St. Corp. v Von Gutfeld, 80 NY2d 130, 508 US 910; Brown v Hartlage, 456 US 45; Philadelphia Newspapers, Inc. v Hepps, 475 US 767; New York Times Co. v Sullivan, 376 US 254; Boos v Barry, 485 US 312; Whitney v California, 274 US 357; Abrams v United States, 250 US 616; Riley v National Federation of Blind of N. C, Inc., 487 US 781; Meyer v Grant, 486 US 414.) II. Strict scrutiny applies to subpoenas targeting core political speech. (Sweezy v New Hampshire, 354 US 234; Laird v Tatum, 408 US 1; McIntyre v Ohio Elections Comm’n, 514 US 334; Yancey v Apfel, 145 F3d 106; Police Dept. of Chicago v Mosley, 408 US 92; Perry Ed. Assn. v Perry Local Educators’ Assn., 460 US 37; Simon & Schuster, Inc. v Members of N. Y. State Crime Victims Bd., 502 US 105; R.A.V. v St. Paul, 505 US 377.) III. The subpoena and investigation in this case cannot be found to survive strict scrutiny. (Carey v Brown, 447 US 455; Texas v Johnson, 491 US 397.)
   OPINION OF THE COURT

Smith, J.

Petitioner’s testimony at a public hearing before a New York City agency prompted a complaint by a public official, followed by a subpoena to petitioner from the New York City Department of Investigation (DOI). Petitioner seeks to quash the subpoena, claiming that it exceeds DOI’s investigative authority and interferes with her First Amendment rights.

We recognize the importance of protecting citizens who speak publicly to their government from intrusion and harassment that may result from official displeasure with what they say. In this case, therefore, we apply with special stringency the general rule that an investigative subpoena will be upheld only where sufficient facts are shown to justify the inquiry. We nevertheless hold that DOI has made a sufficient showing here, and that its subpoena is valid.

I

Petitioner is associated with an organization known as “Landmark West!,” which seeks the preservation of historic buildings on the Upper West Side of Manhattan. In 2006, Landmark West supported designating two stable buildings, the Mason/Dakota Stables and the New York Cab Company Stables, as landmarks. On August 14, 2006, the Borough President of Manhattan, Scott Stringer, wrote a letter to the Chair of the New York City Landmarks Preservation Commission (LPC) that was generally favorable to the proposed landmarking. The letter said that the buildings “are historic fixtures of Manhattan’s Upper West Side and should be preserved”; it urged the Chair “to calendar these two important buildings for public hearing by the Landmarks Preservation Commission” and to “protect an important part of the history of the development of the Upper West Side.” The letter did not say in so many words, however, that the Borough President thought the buildings should be landmarked.

The LPC did calendar the buildings for a public hearing, which took place on October 17, 2006. In the two months between the letter and the hearing, the Borough President apparently changed his mind and decided not to support the land-marking of one of the buildings; the record does not show whether petitioner or Landmark West knew of this change. The Borough President sent a representative to monitor the October 17 hearing, but did not seek to express any views at it.

Petitioner attended the October 17 hearing, signing a “speakers’ sign-in sheet” as a representative of Landmark West. Another Landmark West representative, Lindsay Miller, also attended, signing in as a representative of Assemblymember Linda Rosenthal. Assemblymember Rosenthal later asserted, without contradiction, that she never authorized Ms. Miller to represent her. Indeed, the Assemblymember said she sent a member of her own staff to testify, but that person was not allowed to do so because the LPC limits each organization to one speaker, and Ms. Miller had usurped the slot.

Petitioner began her testimony by stating her name and saying “I’m volunteering today to read the statement of Borough President Scott Stringer.” She then read an altered version of the Borough President’s August 14 letter, without mentioning that she had altered it. She omitted the Borough President’s request that the LPC “calendar” the buildings for public hearing, presumably because the LPC had already done so. More important, she added to the letter an express request for land-marking. The last sentence of the letter, as written by the Borough President, said: “I ask that you move to calendar these two buildings and protect an important part of the history of the development of the Upper West Side.” The sentence became, in petitioner’s reading: “I ask that you immediately protect the important part of history of the Upper West Side and landmark these buildings.” Ms. Miller also testified, reading a letter from Assemblymember Rosenthal, which she altered to similar effect.

Borough President Stringer and Assemblymember Rosenthal were unhappy when they heard of these events, and made their displeasure known in letters to the LPC Chair. The more relevant letter for our purposes was written by the Borough President’s Counsel, and focuses on petitioner’s role at the hearing. The letter says that petitioner was not authorized to speak for the Borough President, and adds:

“We are concerned that any person and/or organization may have falsely induced reliance from a public agency based on representations appearing to derive from the authority of an elected official or public servant. Such conduct is highly inappropriate and, if pursued with the intent to mislead, a potential violation of New York Penal Law Section 190.25 proscribing criminal impersonation, an offense that includes acting with intent to cause another to rely upon pretended official authority.”

After receiving the public officials’ letters, the LPC complained to DOI that petitioner and Ms. Miller had made misrepresentations at the public hearing, and DOI began an investigation. DOI asked petitioner to talk to it voluntarily, and when she refused DOI served a subpoena to compel her testimony. Petitioner moved by order to show cause to quash the subpoena; DOI cross-moved to compel compliance. Supreme Court denied the motion to quash and granted the motion to compel (17 Misc 3d 1119[A], 2007 NY Slip Op 52065[U]), and the Appellate Division affirmed (55 AD3d 1 [1st Dept 2008]). Petitioner appeals as of right pursuant to CPLR 5601 (b) (1), and we now affirm.

II

DOI’s powers under the New York City Charter are broad. Section 803 (b) of the Charter says:

“The commissioner [of DOI] is authorized and empowered to make any study or investigation which in his opinion may be in the best interests of the city, including but not limited to investigations of the affairs, functions, accounts, methods, personnel or efficiency of any agency.”

Charter § 803 (d) says:

“the jurisdiction of the commissioner shall extend to any agency, officer, or employee of the city, or any person or entity doing business with the city, or any person or entity who is paid or receives money from or through the city or any agency of the city.”

The latter subdivision has not been read as a limitation on the witnesses DOI may subpoena. Matter of Weintraub v Fraiman (30 AD2d 784 [1st Dept 1968], affd 24 NY2d 918 [1969]) holds that “inquisitorial” power “reaches any person, even though unconnected with city employment, when there are grounds present to sustain a belief such person has information relative to the subject matter of the investigation” (30 AD2d at 784-785 [citation omitted]). We thus reject petitioner’s suggestion that she is immune from subpoena by DOI merely because she is neither a city employee nor a person doing business with the city. The harder question is whether the facts here provide an adequate basis for subpoenaing her.

III

Myerson v Lentini Bros. Moving & Stor. Co. (33 NY2d 250 [1973]) establishes that public agencies do not have carte blanche in issuing investigative subpoenas. In that case, which involved an investigation by the Department of Consumer Affairs into alleged deceptive trade practices, we held “that a witness subject to a ‘non-judicial’ subpoena duces tecum may always challenge the subpoena in court on the ground it . . . subjects the witness to harassment” (id. at 256 [citations omitted]). This holding applies with equal force to a subpoena seeking testimony. In Myerson, we quashed a broad subpoena duces tecum, because of the “slim showing made to support inquisitorial action” (id. at 260). The question here is whether DOI has made a sufficient showing of justification for its “inquisitorial action” in seeking to compel petitioner’s testimony.

In answering this question, we must take account of the unusual subject matter of this investigation: the actions and words of witnesses at a public hearing. Petitioner, and the New York Civil Liberties Union as amicus, point out correctly that speech of citizens to government officials requesting governmental action is at the very core of the freedom of speech protected by the First Amendment. “[T]here is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs” (Mills v Alabama, 384 US 214, 218 [1966]). There is a danger that subpoenas may be used to intimidate or harass participants in such free discussion, and for that reason, we demand more to support a subpoena in a case like this than in one like Myerson, which involved alleged overcharges by a moving company. We said in Myerson that we would not require “a strong and probative basis for investigation” (33 NY2d at 258); we do require it here. But after applying that demanding test, we conclude that the DOI has presented enough facts to justify its subpoena.

IV

As we interpret the record, there are two subjects about which DOI seeks to question petitioner: Ms. Miller’s allegedly deceptive conduct in signing in as a representative of Assemblymember Rosenthal, and petitioner’s misreading of Borough President Stringer’s letter. We hold that DOI may properly ask petitioner about both subjects, though the second presents a closer question.

The information available to DOI indicated that two representatives of Landmark West had spoken at the public hearing— one, petitioner, acknowledging that she was a Landmark West representative and the other, Ms. Miller, claiming falsely to represent Assemblymember Rosenthal. The result was that, though LPC procedures called for one member to speak from each organization, Landmark West got two speakers and Assemblymember Rosenthal got none. This apparent manipulation of the system was a problem plainly within DOI’s jurisdiction, which allows it to investigate the “affairs . . . methods . . . or efficiency of any agency” (NY City Charter § 803 [b]). Nor can it plausibly be argued that, if Landmark West did usurp Assemblymember Rosenthal’s right to have a representative speak at the hearing, that conduct was protected by the First Amendment. Whether or not the incident could be a basis for action against anyone, DOI could reasonably investigate whether it showed a need for improvement in LPC procedures.

There is no evidence that petitioner was at fault for the way in which Ms. Miller signed in at the hearing, but DOI had a reasonable basis for asking petitioner what she knew about that subject. There are obvious questions—Did petitioner discuss with Ms. Miller how she would sign in? Did they discuss finding a way by which both of them would be allowed to speak?—to which petitioner could be expected to know the answer. If the sole purpose of DOI’s subpoena was to ask questions along these lines, we would have no difficulty in holding it to be proper.

DOI’s investigation of petitioner’s own role at the hearing is more troublesome. DOI argues that in petitioner’s case, as in Ms. Miller’s, it is investigating not the content of testimony, but only an alleged misrepresentation of authority—whether petitioner falsely claimed to represent Borough President Stringer. The Appellate Division apparently accepted this argument, finding that “DOI is not conducting a content-based inquiry by investigating or condemning the actual words spoken by petitioner or other participants at the hearing” (55 AD3d at 7). But this finding is not supported by the record. There is no evidence that petitioner claimed to be authorized to speak on Borough President Stringer’s behalf. She signed in as a representative of Landmark West, and said that she was “volunteering” to read the Borough President’s letter.

DOI is plainly investigating the content of petitioner’s statement at the hearing. The affidavit of DOI’s First Deputy Commissioner, submitted to explain the basis for the investigation, quotes petitioner’s testimony and attaches an audio recording of it. In fact, the only acts or words of petitioner that appear to provide any reason to investigate are her words at the hearing—specifically, her inaccurate reading of the Borough President’s letter.

We tread with great care in holding that a city agency may investigate testimony given at a public hearing. The idea is troubling in itself, and all the more so when the investigation was apparently prompted by the complaint of a public official whom the person testifying had annoyed. If the facts here were slightly different—if, for example, petitioner had not claimed to read the letter, but to summarize it, even if her summary was a gross distortion—there would be a strong argument for quashing the subpoena. A government investigation should not be allowed to trespass on the principle that “debate on public issues should be uninhibited, robust, and wide-open” (New York Times Co. v Sullivan, 376 US 254, 270 [1964]).

But petitioner did claim to read the letter verbatim, and she did not do so. She changed it in a way that arguably made a significant difference. We cannot say that DOI is forbidden to investigate what seems to have been a knowingly false statement of fact to a city agency, even one made at a public hearing. “Spreading false information in and of itself carries no First Amendment credentials. ‘[T]here is no constitutional value in false statements of fact.’ ” (Herbert v Lando, 441 US 153, 171 [1979], quoting Gertz v Robert Welch, Inc., 418 US 323, 340 [1974].) What, if any, action might be taken against petitioner for her statement is a different question, but DOI was entitled to subpoena her and question her about it. Of course, as to any question she is asked, petitioner may if she wishes assert any applicable privilege.

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

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

Order affirmed, with costs.


text:
    [904 NE2d 495, 876 NYS2d 341]
    In the Matter of the Ancillary Receivership of Reliance Insurance Company. The Yale Club of New York City, Inc., Respondent, v Reliance Insurance Company, by the Superintendent of Insurance, as Ancillary Receiver, Appellant.
    Decided February 11, 2009

      APPEARANCES OF COUNSEL

      Herzfeld & Rubin, P.C., New York City (David B. Hamm of counsel), for appellant.

      Cone & Kilbourn, Mount Kisco (Joseph A. Kilbourn of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs. Based on the arguments presented, the Appellate Division did not err in concluding that the insurance company could not rely on the August 1993 letter as the basis to avoid coverage under the claims-made policy.

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


text:
    [905 NE2d 605, 877 NYS2d 731]
    The People of the State of New York, Respondent, v Riley Williams, Appellant.
    Argued January 15, 2009;
    decided February 11, 2009

      APPEARANCES OF COUNSEL

      Lynn W.L. Fahey, New York City, and Jonathan Garvin for appellant.

      Charles J. Hynes, District Attorney, Brooklyn (Maria Park and Leonard Jdblove of counsel), for respondent.
   OPINION OF THE COURT

Memorandum .

The order of the Appellate Division should be affirmed.

We have repeatedly held that the extent to which the prosecution may use prior convictions to impeach a defendant’s testimony “is ‘largely, if not completely’ a discretionary determination for the trial courts and fact-reviewing intermediate appellate courts, and that generally no further review by this Court is warranted” (People v Mattiace, 77 NY2d 269, 274 [1990], quoting People v Shields, 46 NY2d 764, 765 [1978]). Here, Supreme Court’s Sandoval ruling (People v Sandoval, 34 NY2d 371 [1974]) permitted the People to elicit from the defendant that he had one felony conviction and 45 misdemeanor convictions, but not to go into the underlying facts or circumstances of the convictions. We conclude here, as we did in People v Walker (83 NY2d 455, 458 [1994]), that “the trial court might have been more discriminating,” but that there is “no legal reason to upset the court’s exercise of its discretion.”

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

Order affirmed in a memorandum.


text:
    [904 NE2d 495, 876 NYS2d 341]
    The People of the State of New York, Respondent, v Michelle Rouse, Appellant.
    Argued January 7, 2009;
    decided February 11, 2009
    APPEARANCES OF COUNSEL

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

      Robert T Johnson, District Attorney, Bronx (Jennifer Marinaccio, Joseph N. Ferdenzi and Stanley R. Kaplan of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the indictment dismissed.

When a defendant is accused of a felony offense, CPL 30.30 requires the People to be ready for trial within six months of the commencement of the criminal action (CPL 30.30 [1] [a]). CPL 30.30 (4) (f) excludes from the readiness time “the period during which the defendant is without counsel through no fault of the court; except when the defendant is proceeding as his own attorney with the permission of the court.”

The People contend that the 30-day time period from October 5, 2004 to November 4, 2004 was properly chargeable to defendant because her codefendant was “without counsel.” We disagree. Substitute counsel was appointed to codefendant at the conclusion of the October 5, 2004 calendar call, and thus codefendant had counsel during the adjournment period requested by the People. Nor does CPL 30.30 (4) (f) require the court to determine whether counsel was sufficiently familiar with the case in order for a defendant to be considered with legal representation for purposes of the statute.

Accordingly, because the People did not satisfy their statutory readiness obligation, the motion to dismiss the indictment pursuant to CPL 30.30 should have been granted.

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

Order reversed, etc.


text:
    G & T Terminal Packaging Co., Inc., et al., Appellants, v Western Growers Association et al., Respondents.
    Submitted December 22, 2008;
    decided February 11, 2009
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Golden Gate Yacht Club, Appellant, v Société Nautique de Genève, Respondent, and Club Nautico Español de Vela, Intervenor-Defendant.
    Submitted January 20, 2009;
    decided February 11, 2009
   Motion by Royal Thames Yacht Club Limited et al. for leave to file a brief amici curiae on the appeal herein dismissed as untimely (see Rules of Ct of Appeals [22 NYCRR] § 500.23).


text:
    The People of the State of New York, Respondent, v Quentin Abney, Appellant.
    Submitted January 20, 2009;
    decided February 11, 2009
   Motion for assignment of counsel granted and Steven Banks, Esq., the Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Michael Dennis, Appellant.
    Submitted January 20, 2009;
    decided February 11, 2009
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Donald France, Appellant.
    Submitted November 24, 2008;
    decided February 11, 2009
   Motion to vacate this Court’s November 7, 2008 preclusion order granted.


text:
    The People of the State of New York, Respondent, v Douglas Payton, Appellant.
    Submitted January 20, 2009;
    decided February 11, 2009
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    [904 NE2d 812, 876 NYS2d 676]
    The People of the State of New York, Respondent, v Tyrone Maye, Appellant.
    Decided February 12, 2009
    APPEARANCES OF COUNSEL

      Matthew C. Hug, North Greenbush, for appellant.
    Respondent precluded.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by granting defendant’s motion to suppress the cocaine recovered and remitting to County Court for farther proceedings in accordance with this memorandum and, as so modified, affirmed.

Defendant seeks suppression of evidence including cocaine found in a “baggie” during a manual body cavity search performed at a police station, without a warrant. The officer who carried out the search testified that he saw the “baggie” protruding from defendant’s rectum, and removed it. Since no exigent circumstances prevented the police from seeking prior judicial authorization for the search, defendant’s motion to suppress should be granted to the extent of suppressing the cocaine recovered (see People v Hall, 10 NY3d 303, 311 [2008]).

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

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


text:
    [904 NE2d 811, 876 NYS2d 675]
    The People of the State of New York, Respondent, v Andrew C. Small, Appellant.
    Argued January 14, 2009;
    decided February 12, 2009
    APPEARANCES OF COUNSEL

      Timothy P. Donaher, Public Defender, Rochester (William Clauss of counsel), for appellant.

      Michael C. Green, District Attorney, Rochester (Wendy Evans Lehmann and Kelly Christine Wolford of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

While a defendant is not entitled as a matter of law to pretrial notice of the People’s intention to offer evidence pursuant to People v Molineux (168 NY 264 [1901]) or to a pretrial hearing on the admissibility of such evidence (see generally People v Ventimiglia, 52 NY2d 350, 362 [1981]; People v Torres, 300 AD2d 46, 46-47 [1st Dept 2002]; cf. CPL 240.43), we outlined in People v Ventimiglia a procedure to be followed in order to avoid unfairness to the defendant. We noted that a prosecutor seeking to introduce Molineux evidence “should ask for a ruling out of the presence of the jury” (Ventimiglia, 52 NY2d at 362), and that any hearing with respect to the admissibility of such evidence should occur either before trial or, at the latest, “just before the witness testifies” (id.). Contrary to defendant’s contention, there is no requirement that such inquiry or ruling occur before trial commences.

Here, County Court granted the People’s application to allow the Molineux evidence midtrial in response to defendant’s attempt to establish an agency defense. Moreover, the court provided a proper limiting instruction, telling the jury that the evidence was “no proof whatsoever that [defendant] possessed a propensity or disposition to commit the crime charged in the indictment” but was offered “solely for rebutting the defense of agency on the issue of intent.” In these circumstances, County Court did not abuse its discretion in permitting the People to present Molineux evidence.

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

Order affirmed in a memorandum.


text:
    In the Matter of William Coke, Appellant, v Green Haven Correctional Facility et al., Respondents.
    Submitted January 5, 2009;
    decided February 12, 2009
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.

Chief Judge Lippman taking no part.


text:
    Sierra Frank, Appellant, v William H. Eaton et al., Respondents.
    Submitted December 15, 2008;
    decided February 12, 2009
   Motion for leave to appeal dismissed as untimely {see CPLR 5513 [b]).

Chief Judge Lippman taking no part.


text:
    In the Matter of Town of Montauk, Appellant, v George E. Pataki et al., Respondents.
    Submitted January 12, 2009;
    decided February 12, 2009
   Motion for reargument denied [see 10 NY3d 823 (2008)].

Chief Judge Lippman taking no part.


text:
    John Nelson, Respondent, v Shaner Cable, Inc., Doing Business as El-Mar Communications Co., Appellant.
    Submitted January 5, 2009;
    decided February 12, 2009
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the action within the meaning of the Constitution.

Chief Judge Lippman taking no part.


text:
    The People of the State of New York, Respondent, v Rigoberto Benitez, Appellant.
    Submitted January 5, 2009;
    decided February 12, 2009
   Motion to dismiss the appeal herein granted and appeal dismissed, without prejudice to defendant making a motion to reinstate the appeal should he return to this Court’s jurisdiction (see People v Diaz, 7 NY3d 831 [2006]).

Chief Judge Lippman taking no part.


text:
    In the Matter of Jose Rivera, Appellant, v Lucien J. Leclaire, Jr., as Commissioner of Correctional Services, et al., Respondents.
    Decided February 12, 2009
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (see CPLR 5601).

Chief Judge Lippman taking no part.


text:
    [904 NE2d 816, 876 NYS2d 680]
    In the Matter of Aspen Creek Estates, Ltd., Appellant, v Town of Brookhaven et al., Respondents.
    Argued January 14, 2009;
    decided February 17, 2009

      APPEARANCES OF COUNSEL

      Ruskin Moscou Faltischek, P.C., Uniondale (Mark S. Mulholland, Christine Mclnerney and Jonathan C. Sullivan of counsel), for appellant.

      Harvey B. Besunder, P.C., Islandia (Harvey B. Besunder and Zachary D. Dubey of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be affirmed, with costs. The certified question should not be answered upon the ground that it is unnecessary.

Petitioner contends that the United States Supreme Court’s decision in Kelo v New London (545 US 469 [2005]), which dealt with takings for purposes of economic development, requires a preexisting farmland preservation plan to justify the taking of its property as a public use within the meaning of the Fifth Amendment (see US Const Amend V [“nor shall private property be taken for public use, without just compensation”]). We need not, and do not, reach the issue whether petitioner’s interpretation of Kelo is correct, since the challenged taking was constitutionally proper even assuming that a preexisting farmland preservation plan was necessary. Petitioner’s property was taken pursuant to a legislatively-declared public policy in favor of farmland preservation and as part of the Town of Brookhaven’s master plans endorsing farmland preservation. In furtherance of these plans, Town voters passed three bond acts providing $130 million to acquire development rights or fee interests in undeveloped land in the Town; among the areas specifically designated for preservation was the 500-acre tract of farmland in which petitioner’s parcel is located.

In short, the public benefits of the taking in this case were not incidental or pretextual in comparison with benefits to particular, favored private entities; petitioner’s remaining arguments likewise lack merit. Finally, the parties have not argued, and we do not decide, whether the New York Constitution (see NY Const, art I, § 7 [a]) imposes a more stringent standard for takings than does the Fifth Amendment as interpreted by Kelo.

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

Judgment affirmed, etc.


text:
    [904 NE2d 499, 876 NYS2d 345]
    The People of the State of New York, Respondent, v Dwayne Middleton, Appellant.
    Decided February 17, 2009

      APPEARANCES OF COUNSEL

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

      Charles J. Hynes, District Attorney, Brooklyn (Maria Park of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Defendant’s constitutional arguments are unpreserved. The record supports the determination of the courts below that defendant is a level three sex offender.

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

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


text:
    Lillian Arias, Appellant, v New York City Health and Hospitals Corporation (Kings County Hospital Center), Respondent.
    Submitted December 22, 2008;
    decided February 17, 2009
   Motion, insofar as it seeks leave to appeal from the April 2008 Appellate Division order, dismissed as untimely (see CPLR 5513 [b]); motion, insofar as it seeks leave to appeal from the October 2008 Supreme Court judgment, dismissed upon the ground that it is not a final judgment within the meaning of CPLR 5602 (a) (1) (ii) to bring up for review the April 2008 Appellate Division order that finally determined a separate special proceeding (see Karger, Powers of the New York Court of Appeals § 5:28, at 187-188 [3d ed rev]).


text:
    In the Matter of John W. Broderick, Appellant, v Felix J. Catena, as Montgomery County Court Judge, et al., Respondents.
    Submitted January 5, 2009;
    decided February 17, 2009
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of John W. Broderick, Appellant, v Felix J. Catena, as Montgomery County Court Judge, et al., Respondents.
    Submitted January 5, 2009;
    decided February 17, 2009
   Motion by John Mazzarella for leave to file an affidavit amicus curiae on the motion for leave to appeal herein denied.


text:
    In the Matter of Raymond F. Mulhaul, Petitioner, v Debra H. Levine, Respondent. Samantha Mulhaul, Nonparty Appellant.
    Submitted December 29, 2008;
    decided February 17, 2009
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Louis R. Rosenthal, an Attorney, Appellant. Committee on Professional Standards, Respondent.
    Submitted January 20, 2009;
    decided February 17, 2009
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    Constandina M. Roux, Appellant.
    Submitted December 22, 2008;
    decided February 17, 2009
   Motion for leave to appeal dismissed upon the ground that the paper sought to be appealed from was not issued in an action or proceeding and the Court of Appeals does not have jurisdiction to entertain the motion (see CPLR 5602).


text:
    [904 NE2d 832, 876 NYS2d 696]
    The People of the State of New York, Respondent, v Dwight Furet, Also Known as Ira Morsby, Appellant.
    Decided February 19, 2009
    APPEARANCES OF COUNSEL

      Center for Appellate Litigation, New York City (William A. Loeb of counsel), for appellant.

      Robert M. Morgenthau, District Attorney, New York City (Dana Poole of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed. The mandatory surcharge, crime victim assistance fee and DNA databank fee need not be pronounced by the court at sentencing (see People v Guerrero, 12 NY3d 45 [2009] [decided today]). The lower courts’ determinations regarding reasonable suspicion and probable cause, which are mixed questions of law and fact, have support in the record and are thus beyond our further review.

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


text:
    [904 NE2d 832, 876 NYS2d 696]
    The People of the State of New York, Respondent, v Christopher Harris, Appellant.
    Decided February 19, 2009
    APPEARANCES OF COUNSEL

      Center for Appellate Litigation, New York City (William A. Loeb of counsel), for appellant.

      Robert M. Morgenthau, District Attorney, New York City (Richard Nahas of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed (see People v Guerrero, 12 NY3d 45 [2009] [decided today]).

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


text:
    [906 NE2d 373, 878 NYS2d 645]
    The People of the State of New York, Respondent, v Bajro Hoti, Appellant.
    Decided February 19, 2009
    APPEARANCES OF COUNSEL

      Center for Appellate Litigation, New York City (Mark W. Zeno of counsel), for appellant.

      Robert M. Morgenthau, District Attorney, New York City (Richard Nahas of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed. The mandatory surcharge, crime victim assistance fee and DNA databank fee are not components of a defendant’s sentence (see People v Guerrero, 12 NY3d 45 [2009] [decided today]). Accordingly, the court’s failure to pronounce the surcharge and fees prior to the entry of defendant’s plea did not deprive the defendant of the opportunity to knowingly, voluntarily and intelligently choose among alternative courses of action (cf. People v Catu, 4 NY3d 242, 245 [2005]).

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


text:
    [907 NE2d 267, 879 NYS2d 354]
    The People of the State of New York, Appellant, v Ronald Moye, Respondent.
    Argued January 15, 2009;
    decided February 19, 2009

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney, New York City (Mark Dwyer of counsel), for appellant.

      Anthony L. Ricco, New York City, and Steven Z. Legón for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

An attorney may not “mak[e] himself an unsworn witness” by “supporting his case by his own” or anyone else’s “veracity and position” (People v Lovello, 1 NY2d 436, 439 [1956]). While we do not fault the prosecutor for remarks made at sidebar, in his summation he concededly became an unsworn witness by “vouching] for the witness with the most favorable testimony for the prosecution by reference to his own pretrial conduct and . . . credibility by virtue of his position in the District Attorney’s office” (People v Moye, 52 AD3d 1, 8 [1st Dept 2008]). We agree with the majority below that the prosecutor’s vouching remarks in summation may not be excused as fair response to defense provocation. Further, they were prejudicial to defendant, and, in this case, the trial court’s limiting instruction failed to eliminate the prejudicial effect.

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

Order affirmed in a memorandum.


text:
    [904 NE2d 832, 876 NYS2d 696]
    The People of the State of New York, Respondent, v Lorraine Washington, Appellant.
    Decided February 19, 2009

      APPEARANCES OF COUNSEL

      Center for Appellate Litigation, New York City (William A. Loeb of counsel), for appellant.

      Robert M. Morgenthau, District Attorney, New York City (Richard Nahas of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed (see People v Guerrero, 12 NY3d 45 [2009] [decided today]).

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


text:
    Morris I. Gletzer, Also Known as Morris I. Glecer, Plaintiff, v Amos Harris, Defendant. Greenpoint Mortgage Funding, Inc., et al., Respondents, v Morris I. Gletzer, Also Known as Morris I. Glecer, Appellant, et al., Respondents.
    Submitted February 17, 2009;
    decided February 19, 2009
   Motion by New York State Land Title Association for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and 24 copies filed within seven days.

Chief Judge Lippman taking no part.


text:
    In the Matter of George Infante, as Administrator of the Estate of Rosemary A. Infante, Deceased, Respondent, v Caroline R. Dignan, M.D., as Medical Examiner of Monroe County, et al., Appellants.
    Submitted February 17, 2009;
    decided February 19, 2009
   Motion by Most Reverand Howard J. Hubbard, D.D. for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    Boris Khrapunskiy et al., Respondents, v Robert Doar, as Commissioner of the New York State Office of Temporary and Disability Assistance, Appellant.
    Submitted February 17, 2009;
    decided February 19, 2009
   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.


text:
    Igor Misicki, Appellant, v Salvatore Caradonna, Defendant, and 430-50 Shore Road Corporation, Respondent. (And a Third-Party Action.)
    Submitted February 17, 2009;
    decided February 19, 2009
   Motion by New York State Trial Lawyers’ Association for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    In the Matter of Paolo W. and Another, Children Alleged to be Neglected. Schenectady County Department of Social Services, Respondent; Paul W., Appellant.
    Submitted January 5, 2009;
    decided February 19, 2009
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v William L. Hilts, Also Known as T and True, Appellant.
    Submitted December 1, 2008;
    decided February 19, 2009
   Motion to vacate this Court’s July 14, 2008 dismissal order granted [see 10 NY3d 954 (2008)]. Motion for assignment of counsel granted and David Lazer, Esq., care of Lazer, Aptheker, Rosella & Yedid, P.C., Melville Law Center, 225 Old Country Road, Melville, New York 11747-2712 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Scott C. Weaver, Appellant.
    Submitted February 17, 2009;
    decided February 19, 2009
   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.


text:
    The People of the State of New York, Respondent, v Scott C. Weaver, Appellant.
    Submitted February 17, 2009;
    decided February 19, 2009
   Motion by New York Civil Liberties Union for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    Pioneer Tower Owners Association, Respondent, v State Farm Fire & Casualty Company et al., Appellants.
    Submitted February 17, 2009;
    decided February 19, 2009
   Motion by New York Insurance Association, 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:
    Sigurd A. Sorenson, Appellant, v Bridge Capital Corp. et al., Respondents.
    Submitted December 22, 2008;
    decided February 19, 2009
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.

Chief Judge Lippman taking no part.


text:
    In the Matter of Susan H. Wiley, Respondent, v Roger Dawson, Appellant.
    Submitted December 1, 2008;
    decided February 19, 2009
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief etc. dismissed as academic. Cross motion for the imposition of sanctions denied.


text:
    [904 NE2d 837, 876 NYS2d 700]
    The People of the State of New York, Respondent, v Kristerfer Passino, Appellant.
    Decided February 24, 2009

      APPEARANCES OF COUNSEL

      Jones Ferradino, Saratoga Springs (M. Elizabeth Coreno of counsel), and Alfred O’Connor, Albany, for appellant.

      Kevin C. Kortright, District Attorney, Fort Edward (Michael R. Stern of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed. The issues raised on appeal were not preserved for this Court’s review. Defendant did not raise any issue under Miranda v Arizona (384 US 436 [1966]) at County Court, and that court’s ruling on the Miranda issue did not address any of the arguments defendant now makes.

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


text:
    [904 NE2d 837, 876 NYS2d 700]
    Carolyn Charley, Appellant, v Margaret E. Goss et al., Respondents.
    Decided February 24, 2009
    APPEARANCES OF COUNSEL

      Kahn Gordon Timko & Rodriques P.C., New York City (Thomas B. Grunfeld of counsel), for appellant.

      Law Offices of Brian J. McGovern LLC, New York City (Alison M.K. Lee of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Defendants Howard Conroy and Margaret Goss presented prima facie evidence, including plaintiffs deposition testimony and medical records, that plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]). In opposition, plaintiff failed to raise a triable issue of fact.

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

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


text:
    [908 NE2d 868, 880 NYS2d 878]
    Linda Smalley, Appellant, v Matthew J. Bemben, Respondent.
    Decided February 24, 2009

      APPEARANCES OF COUNSEL

      Law Offices of Michael G. Dwyer, PLLC, Williamsville (Michael G. Dwyer of counsel), for appellant.

      Barth Sullivan Behr, Buffalo (Laurence D. Behr of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Unless a statute or ordinance “clearly imposes liability upon” an abutting landowner, only a municipality may be held liable for the negligent failure to remove snow and ice from a public sidewalk (Roark v Hunting, 24 NY2d 470, 475 [1969] [emphasis added]; Jacobs v Pasquale, 281 AD2d 891, 892 [4th Dept 2001]). In 1997, the City of Buffalo amended section 413-50 (A) of its City Code to impose two duties on landowners: (1) removing snow and ice on abutting sidewalks before 9:00 a.m. and (2) making, maintaining and repairing abutting sidewalks. The plain language of section 413-50 (A) only imposes liability with respect to the second duty. While the legislative history of the 1997 amendment may also be read as indicating that the amendment was intended to impose liability on landowners for failing to remove snow and ice from city sidewalks abutting their property (see Montes v City of Buffalo, 295 AD2d 896, 897 [4th Dept 2002], lv denied 99 NY2d 504 [2002]), the terms of the Code do not clearly subject landowners to such liability.

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

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


text:
    Charles DeMartino, Appellant, v Metropolitan Life Insurance Company et al., Respondents.
    Submitted January 12, 2009;
    decided February 24, 2009
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion to seal denied as unnecessary (see Rules of Ct of Appeals [22 NYCRR] § 500.5 [b]).

Chief Judge Lippman taking no part.


text:
    In the Matter of General Electric Company, Appellant, v Assessor of the Town of Rotterdam et al., Respondents. (And Another Related Proceeding.)
    Submitted January 12, 2009;
    decided February 24, 2009
   Motion for reargument of motion for leave to appeal denied [see 11 NY3d 711 (2008)].

Chief Judge Lippman and Judge Read taking no part.


text:
    In the Matter of General Electric Company, Appellant, v Assessor of the Town of Rotterdam et al., Respondents. (And Another Related Proceeding.)
    Submitted January 12, 2009;
    decided February 24, 2009
   Motion by the Institute for Professionals in Taxation for leave to file a brief amicus curiae on the motion for reargument herein granted and the brief is accepted as filed [see 11 NY3d 711 (2008)].

Chief Judge Lippman and Judge Read taking no part.


text:
    In the Matter of General Electric Company, Appellant, v Assessor of the Town of Rotterdam et al., Respondents. (And Another Related Proceeding.)
    Submitted January 12, 2009;
    decided February 24, 2009
   Motion by the Council on State Taxation for leave to file a brief amicus curiae on the motion for reargument herein granted and the brief is accepted as filed [see 11 NY3d 711 (2008)].

Chief Judge Lippman and Judge Read taking no part.


text:
    In the Matter of Peter C. Irvine, Appellant, v Kathleen M. Rogers, as Acting Judge of St. Lawrence County Court, et al., Respondents.
    Decided February 24, 2009
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Edward Koehl, Appellant, v Dale Artus, as Superintendent of Clinton Correctional Facility, Respondent.
    Submitted January 12, 2009;
    decided February 24, 2009
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    In the Matter of Elvin Lebron, Appellant, v Brion D. Travis, as Chair of the New York State Division of Parole, Respondent.
    Submitted January 12, 2009;
    decided February 24, 2009
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of RSM West Lake Road LLC et al., Respondents, v Town of Canandaigua Zoning Board of Appeals et al., Respondents, and East Shore Association of Canandaigua Lake, Inc., et al., Appellants.
    Submitted December 22, 2008;
    decided February 24, 2009
   Motion to dismiss the appeal herein denied.


text:
    Snyder Fulton Street, LLC, Respondent, v Fulton Interest, LLC, Appellant.
    Submitted January 12, 2009;
    decided February 24, 2009
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (see Karger, Powers of the New York Court of Appeals § 5:3, at 109 [3d ed rev]). Motion for a stay dismissed as academic.


text:
    [907 NE2d 683, 879 NYS2d 805]
    Jane Doe et al., Respondents, v Roman Catholic Diocese of Rochester et al., Appellants.
    Argued February 12, 2009;
    decided March 26, 2009

      APPEARANCES OF COUNSEL

      Harris Beach PLLC, Pittsford (Philip G. Spellane, A. Vincent Buzará and Laura W. Smalley of counsel), for Bishop Matthew H. Clark and another, appellants.

      Christopher S. Ciaccio, Rochester, for Peter M. DeBellis, appellant.

      Christina A. Agola, Attorneys and Counselors at Law, PLLC, Rochester (Christina A. Agola of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be reversed, with costs, defendants’ motions to dismiss the complaint in the entirety should be granted and the certified question should be answered in the negative.

Plaintiffs were congregants of Our Mother of Sorrows Church, where defendant Father Peter DeBellis was a priest. Plaintiff Jane Doe alleges that in November 2000, she began counseling with Father DeBellis. Soon thereafter, plaintiff maintains that they began a sexual relationship that lasted for more than three years. Both the counseling and the sexual relationship continued despite repeated complaints to the Diocese by plaintiff husband, John Doe, and DeBellis’s subsequent transfer to another church. Plaintiffs commenced this action asserting, as relevant here, a breach of fiduciary duty claim against Father DeBellis, and claims for negligent supervision and retention against the Diocese.

As we recently reaffirmed, a fiduciary relationship must exhibit the characteristics of “de facto control and dominance” (Marmelstein v Kehillat New Hempstead: The Rav Aron Jofen Community Synagogue, 11 NY3d 15, 21 [2008] [internal quotation marks and citation omitted]). Specifically, we held that in order to demonstrate the existence of a fiduciary duty between a cleric and a congregant involved in a formal counseling relationship, “a congregant must set forth facts and. circumstances in the complaint demonstrating that the congregant became uniquely vulnerable and incapable of self-protection regarding the matter at issue” (Marmelstein, 11 NY3d at 22).

The complaint in this case, although drafted prior to our decision in Marmelstein, falls short of what is necessary to state a claim for breach of fiduciary duty. The bare allegation that Jane Doe was “a vulnerable congregant” is insufficient to establish that plaintiff was particularly susceptible to Father De-Bellis’s influence. Nor does the complaint provide any other allegations to show that the parties had a relationship characterized by control and dominance.

Plaintiffs’ claims for negligent supervision and retention against the Diocese likewise fail.

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

Order, insofar as appealed from, reversed, etc.


text:
    [906 NE2d 1057, 879 NYS2d 25]
    In the Matter of Francis M. Alessandro.
    Decided March 26, 2009
    APPEARANCES OF COUNSEL

      Robert E Roche for petitioner.

      Robert H. Tembeckjian for respondent.
   OPINION OF THE COURT

On the Court’s own motion, it is determined that Honorable Francis M. Alessandro is suspended, with pay, effective immediately, from the office of Judge of the New York City Civil Court, Bronx County, pending disposition of his request for review of a determination by the State Commission on Judicial Conduct.

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


text:
    [906 NE2d 1057, 879 NYS2d 25]
    In the Matter of Joseph S. Alessandro.
    Decided March 26, 2009
    APPEARANCES OF COUNSEL

      Paul DerOhannesian for petitioner.

      Robert H. Tembeckjian for respondent.
   OPINION OF THE COURT

On the Court’s own motion, it is determined that Honorable Joseph S. Alessandro is suspended, with pay, effective immediately, from the office of Justice of the Supreme Court, Westchester County, pending disposition of his request for review of a determination by the State Commission on Judicial Conduct.

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


text:
    [906 NE2d 1057, 879 NYS2d 25]
    The People of the State of New York, Respondent, v Richard Lowe, Appellant.
    Argued February 19, 2009;
    decided March 26, 2009
    APPEARANCES OF COUNSEL

      Legal Aid Society, New York City (Amy Donner and Steven Banks of counsel), for appellant.

      Robert M. Morgenthau, District Attorney, New York City (Marc Krupnick and Alan Gadlin of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The lower courts’ determinations of probable cause, a mixed question of law and fact, are supported by the minutes of the in camera hearing conducted pursuant to People v Darden (34 NY2d 177 [1974]), and are thus beyond our further review. Accordingly, defendant’s motion to suppress was properly denied.

We have considered defendant’s remaining contentions and find them to be without merit.

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

Order affirmed in a memorandum.


text:
    Frank Adamo, as Executor of Norma Rose, Deceased, et al., Appellants, v Brown & Williamson Tobacco Corporation, as Successor in Interest to The American Tobacco Company, et al., Respondents, et al., Defendant.
    Submitted February 9, 2009;
    decided March 26, 2009
   Motion for reargument denied with $100 costs and necessary reproduction disbursements [see 11 NY3d 545 (2008)].

Chief Judge Lippman taking no part.


text:
    In the Matter of Virginia Adams et al., Appellants, v Richard S. Schoenstadt et al., as Board of Assessors of the Town of Schroon, Respondents.
    Submitted February 2, 2009;
    decided March 26, 2009
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Judith Askin et al., Respondents, v City of New York et al., Defendants, and New York City Health and Hospitals Corporation, Appellant.
    Submitted January 20, 2009;
    decided March 26, 2009
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of George Infante, as Administrator of the Estate of Rosemary A. Infante, Deceased, Respondent, v Caroline R. Dignan, M.D., as Medical Examiner of Monroe County, et al., Appellants.
    Submitted March 2, 2009;
    decided March 26, 2009
   Motion by Office of the Chief Medical Examiner of the 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.

Judge Graffeo taking no part.


text:
    In the Matter of Jazmone S., a Child Alleged to be Neglected. Administration for Children’s Services, Respondent; Philip J., Appellant. (Proceeding No. 1.) In the Matter of Ashley J., a Child Alleged to be Neglected. Administration for Children’s Services, Respondent; Philip J., Appellant. (Proceeding No. 2.) In the Matter of Zalika J., a Child Alleged to be Neglected. Administration for Children’s Services, Respondent; Philip J., Appellant. (Proceeding No. 3.) In the Matter of Ethan J., a Child Alleged to be Neglected. Administration for Children’s Services, Respondent; Philip J., Appellant. (Proceeding No. 4.)
    Submitted November 26, 2008;
    decided March 26, 2009
   Motion for reargument of motion for leave to appeal denied [see 11 NY3d 809 (2008)].

Chief Judge Lippman taking no part.


text:
    In the Matter of Lavountae A. and Others, Infants. Monroe County Department of Human Services, Respondent; Laticia A., Appellant.
    Submitted March 9, 2009;
    decided March 26, 2009
   Motion for assignment of counsel granted and Timothy E Donaher, Esq., Monroe County Public Defender, 10 N. Fitzhugh Street, Rochester, New York 14614 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Roberto Castellano, Also Known as Roberto Castelan, Appellant.
    Submitted January 12, 2009;
    decided March 26, 2009
   Motion for reargument denied [see 11 NY3d 850 (2008)]. Chief Judge Lippman taking no part.


text:
    The People of the State of New York, Respondent, v George Davis, Appellant.
    Submitted March 9, 2009;
    decided March 26, 2009
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Robert C. Felton, Appellant.
    Submitted March 23, 2009;
    decided March 26, 2009
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Collier Gillyard, Appellant.
    Submitted March 9, 2009;
    decided March 26, 2009
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.

Chief Judge Lippman taking no part.


text:
    The People of the State of New York, Respondent, v Shawn Green, Appellant.
    Submitted February 23, 2009;
    decided March 26, 2009
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Brian Henderson, Appellant.
    Submitted February 23, 2009;
    decided March 26, 2009
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v George Konstantinides, Appellant.
    Submitted March 23, 2009;
    decided March 26, 2009
   Motion for assignment of counsel granted and Lynn W.L. Fahey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Rashad McNair, Appellant.
    Submitted February 23, 2009;
    decided March 26, 2009
   Motion for assignment of counsel granted and Steven Banks, Esq., the Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.

Chief Judge Lippman taking no part.


text:
    The People of the State of New York, Respondent, v Claudell Pena, Also Known as Claudell Espinal, Appellant.
    Submitted March 16, 2009;
    decided March 26, 2009
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v William Taylor, Appellant.
    Submitted March 9, 2009;
    decided March 26, 2009
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.

Chief Judge Lippman taking no part.


text:
    The People of the State of New York, Appellant, v Juwanna Wrotten, Respondent.
    Submitted March 16, 2009;
    decided March 26, 2009
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the respondent on the appeal herein.


text:
    Lylane Sum, Appellant, v Tishman Speyer Properties, Inc., et al., Respondents.
    Submitted February 23, 2009;
    decided March 26, 2009
   Motion by Service Employees International Union, Local 32BJ for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Superior Ice Rink, Inc., Respondent, v Nescon Contracting Corp., Doing Business as A1 Discount Painting, et al., Defendants, and Merchants Mutual Marine Insurance Company, Appellant.
    Submitted January 26, 2009;
    decided March 26, 2009
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Wallkill Medical Development, LLC, et al., Appellants, v Sweet Constructors, LLC, Respondent.
    Submitted January 20, 2009;
    decided March 26, 2009
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Awilda Cortez, as Administratrix of the Estate of Juan Cortez, Deceased, Appellant, v Delmar Realty Co., Inc., et al., Respondents.
    Submitted February 2, 2009;
    decided March 31, 2009
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed the denial of appellant’s motion to amend the complaint, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Samuel Cosentino, Appellant, v Sullivan Papain Block McGrath & Cannavo, P.C., Respondent.
    Submitted February 2, 2009;
    decided March 31, 2009
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    George Eremeyev et al., Appellants, v Manhattan Eye, Ear & Throat Hospital, et al., Respondents.
    Submitted March 2, 2009;
    decided March 31, 2009
   Motion for reargument of motion for leave to appeal etc. denied [see 11 NY3d 903 (2009)]. Motion for poor person relief dismissed as academic.

Chief Judge Lippman taking no part.


text:
    In the Matter of Friendly Car Wash Main Street, Inc., et al., Appellants. Commissioner of Labor, Respondent.
    Decided March 31, 2009
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Gerald BB. and Others, Children Alleged to be Permanently Neglected. Schenectady County Department of Social Services, Respondent; Sheila CC., Appellant. (And Other Proceedings.)
    Submitted March 2, 2009;
    decided March 31, 2009
   Motion for reargument of motion for leave to appeal denied [see 11 NY3d 703 (2008)].

Chief Judge Lippman taking no part.


text:
    In the Matter of Michael S. Hale, Appellant, v Donald Selsky, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
    Decided March 31, 2009
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies as of right from the unanimous judgment of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601).


text:
    In the Matter of John D. Justice, Appellant, v George B. Alexander, as Chairman of the New York State Division of Parole, Respondent.
    Submitted January 26, 2009;
    decided March 31, 2009
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York, Respondent, v Michael J. Brown, Appellant.
    Submitted March 9, 2009;
    decided March 31, 2009
   Motion to vacate this Court’s February 10, 2009 preclusion order granted.


text:
    The People of the State of New York ex rel. James Brown, Appellant, v James Conway, as Superintendent of Attica Correctional Facility, Respondent.
    Submitted February 23, 2009;
    decided March 31, 2009
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no appeal lies to the Court of Appeals from the order of the individual Justice of the Appellate Division (see NY Const, art VI, § 3 [b]; CPLR 5601). Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York ex rel. Ernest Smith, Appellant, v Fransisco Rivera, as Superintendent of Wallkill Correctional Facility, Respondent.
    Submitted February 9, 2009;
    decided March 31, 2009
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


text:
    In the Matter of the Claim of Barbara Peterson, Respondent, v Faculty Student Association et al., Appellants. Workers' Compensation Board, Respondent.
    Submitted January 26, 2009;
    decided March 31, 2009
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Lorraine Chanin Rachimi, Appellant, v Peter Rachimi, Respondent.
    Submitted February 23, 2009;
    decided March 31, 2009
   Motion by the American Academy of Matrimonial Lawyers, New York Chapter, for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    In the Matter of Seann Patrick Riley, on Behalf of Paul Germain, Appellant, v Ralph Fabrizio et al., Respondents.
    Submitted January 26, 2009;
    decided March 31, 2009
   Motion to vacate this Court’s January 5, 2009 order dismissing the appeal for failure to prosecute granted, and appeal reinstated [see 11 NY3d 921 (2009)]. On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved.

Chief Judge Lippman taking no part.


text:
    In the Matter of Julius R. Ruggiere et al., Appellants, v Michael Bloomberg et al., Respondents.
    Submitted March 9, 2009;
    decided March 31, 2009
   Motion for reargument of motion for leave to appeal denied [see 11 NY3d 716 (2009)].

Chief Judge Lippman taking no part.


text:
    Howard Rukeyser, Appellant, v Leacroft Richardson, Respondent, et al., Defendant.
    Submitted February 2, 2009;
    decided March 31, 2009
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for a stay dismissed as academic.


text:
    In the Matter of Thomas D., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Submitted January 20, 2009;
    decided March 31, 2009
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    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.
    Decided March 31, 2009
   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, Smith, Pigott and Jones.


text:
    David Wadler, Appellant, v City of New York et al., Respondents.
    Submitted January 26, 2009;
    decided March 31, 2009
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that dismissed the appeal from Supreme Court’s order denying appellant’s motion for reargument, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise granted.

Chief Judge Lippman taking no part.


text:
    [906 NE2d 1070, 879 NYS2d 36]
    The People of the State of New York, Respondent, v Donald France, Appellant.
    Decided April 2, 2009
    APPEARANCES OF COUNSEL

      Legal Aid Society, New York City (Kristina Schwarz and Steven Banks of counsel), for appellant.

      Robert M. Morgenthau, District Attorney, New York City (Susan Axelrod and Eleanor Ostrow of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Under CPL 710.60 (1), a defendant is entitled to a hearing on a suppression motion only if there is an issue of fact that must be resolved before it can be determined whether suppression is required. Here, evaluating (1) the face of the pleadings, (2) the context of the motion, and (3) the defendant’s access to information (see People v Mendoza, 82 NY2d 415, 426 [1993]; see also People v Lopez, 5 NY3d 753, 754 [2005]), the motion was properly denied without a hearing. Despite having sufficient information from the felony complaint and the voluntary disclosure form concerning the factual predicate for his arrest, defendant failed to dispute that the victim told the police that he had been robbed by defendant, that the victim identified him to the police and that defendant admitted possessing a pawnshop receipt for the stolen goods (cf. People v Bryant, 8 NY3d 530 [2007]). These uncontested facts provide support for the Appellate Division’s conclusion that there was probable cause for the arrest, and thus the Appellate Division correctly concluded that a hearing was unnecessary.

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.