text:
    Jeana Barenboim et al., on Behalf of Themselves and All Others Similarly Situated, Appellants, v Starbucks Corporation, Respondent. Eugene Winans et al., on Behalf of Themselves and All Others Similarly Situated, Appellants, v Starbucks Corporation, Respondent.
    Decided November 27, 2012

      See 698 F3d 104.
   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 and Pigott.


source: Caselaw Access Project

license: Public Domain

text:
    Roger A. Campfield, Respondent, v Sharlene M. Campfield, Appellant.
    Submitted September 17, 2012;
    decided November 27, 2012
   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:
    Jennifer Cangro, Appellant, v Park South Towers Associates et al., Respondents.
    Submitted October 1, 2012;
    decided November 27, 2012
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the orders appealed from do not finally determine the action within the meaning of the Constitution. Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of the Claim of Tuhin S. Dutta, Appellant. Commissioner of Labor, Respondent.
    Submitted September 17, 2012;
    decided November 27, 2012
   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:
    Richard George, Appellant, v Yoma Development Group, Inc., et al., Defendants, and Jennifer E. Lozana Luna et al., Respondents.
    Submitted October 1, 2012;
    decided November 27, 2012
   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 the Claim of Georgiana H. Jungels, Appellant, v SUNY Buffalo, Respondent. Workers’ Compensation Board, Respondent.
    Submitted September 10, 2012;
    decided November 27, 2012
   Motion, insofar as it seeks leave to appeal from that part of the April 2012 Appellate Division order as dismissed the appeal from the October 2009 Workers’ Compensation Board decision, denied; motion for leave to appeal otherwise dismissed upon the ground that the remaining portions of the orders sought to be appealed from do not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Edward Koehl, Appellant, v Brian S. Fischer, as Commissioner of Corrections and Community Supervision, Respondent.
    Submitted October 1, 2012;
    decided November 27, 2012
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (see CPLR 5601). Motion for poor person relief dismissed as academic.


text:
    Frederick J. Platek et al., Respondents, v Town of Hamburg et al., Defendants, and Allstate Indemnity Company, Appellant.
    Decided November 27, 2012
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Dolores Stewart, Respondent, v Sandy Marte et al., Appellants.
    Submitted September 17, 2012;
    decided November 27, 2012
   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:
    Jose Torres, Appellant, v Gamma Taxi Corp. et al., Respondents.
    Decided November 27, 2012
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Tribeca Lending Corp., Respondent, v Linda Crawford, Appellant, et al., Defendants.
    Submitted September 24, 2012;
    decided November 27, 2012
   Motion for leave to appeal dismissed upon the ground that it does not lie.


text:
    [980 NE2d 531, 956 NYS2d 482]
    In the Matter of Robert P. Apple.
    Decided November 29, 2012
    APPEARANCES OF COUNSEL

      Thomas F. Purcell, Mahopac, for Hon. Robert P Apple.

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

On consideration of the continuation of this Court’s October 23, 2012 suspension, with pay, of Honorable Robert P Apple from his office of Justice of the Pawling Village Court, Dutchess County (see 19 NY3d 1045 [2012]), it is determined that the suspension continue, with pay, effective immediately.

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


text:
    [980 NE2d 532, 956 NYS2d 482]
    Kayla James, an Infant, by Her Mother and Natural Guardian, Atara James, et al., Appellants, v Loran Realty V Corp., Defendant, and Frank Palazzolo et al., Respondents.
    Decided November 29, 2012
    APPEARANCES OF COUNSEL

      Sullivan Papain Block McGrath & Cannavo P.C., New York City (Brian J. Shoot of counsel), for appellants.

      Hass & Gottlieb, Scarsdale (Lawrence M. Gottlieb of counsel), for Frank Palazzolo, respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiffs, as the party seeking to pierce the corporate veil, had the burden to show that the individual defendants “abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice against” them (Matter of Morris v New York State Dept. of Taxation & Fin., 82 NY2d 135, 142 [1993]). Plaintiffs did not meet this burden, inasmuch as they failed to produce evidence that the individual defendants took steps to render the corporate defendant insolvent in order to avoid plaintiffs’ claim for damages or otherwise defraud plaintiffs.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith and Pigott 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, and the certified question answered in the affirmative, in a memorandum.


text:
    [980 NE2d 532, 956 NYS2d 483]
    In the Matter of Weeks Woodlands Association, Inc., et al., Appellants, v Dormitory Authority of the State of New York et al., Respondents.
    Decided November 29, 2012

      APPEARANCES OF COUNSEL

      Albert K. Butzel Law Offices, New York City (Albert K. Butzel and Michael S. Gruen of counsel), for appellants.

      Wachtel Masyr & Missry LLP, New York City (Karen Binder of counsel), for Dormitory Authority of the State of New York and another, respondents.

      Michael A. Cardozo, Corporation Counsel, New York City (Edward F.X. Hart of counsel), for New York City Department of Buildings, 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. Under the particular circumstances of this case, we agree with the Appellate Division majority that the challenged project is substantially complete and that the proper course of action was to dismiss the appeals taken to that Court as moot.

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


text:
    [982 NE2d 74, 958 NYS2d 312]
    Kristin Kahkonen Dupree, Respondent-Appellant, v James E. Giugliano, Appellant-Respondent.
    Argued October 17, 2012;
    decided November 29, 2012

      APPEARANCES OF COUNSEL

      Shayne, Dachs, Corker, Sauer & Dachs, LLP, Mineola (Norman H. Dachs of counsel), for appellant-respondent.

      Kenneth S. Cooperstein, Centerport, for respondent-appellant.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, without costs, by vacating the award for punitive damages and, as so modified, affirmed, and the certified question not answered upon the ground it is unnecessary.

In January 2000, plaintiff Kristin Kahkonen Dupree sought and obtained treatment for depression and stress from defendant James E. Giugliano, a licensed family physician with a concentration in osteopathic medicine. Defendant prescribed antidepressant drugs for plaintiff, and suggested that she get more exercise or take warm baths to relieve stress. He also referred her to a therapist for counseling. In June 2001, plaintiff and defendant became involved in an adulterous relationship. Their first sexual encounter occurred at a gym where defendant was showing plaintiff exercises to alleviate stress and anxiety; these encounters continued several times a week for nine months before plaintiff and defendant mutually decided to end their affair. Plaintiff confessed the adultery to her husband, who subsequently sued for divorce. The divorce proceeding was contentious and protracted, lasting five years before a settlement was reached.

Plaintiff commenced suit for medical malpractice in February 2005. At trial, plaintiff offered testimony that she felt the affair was wrong, but was unable to control herself. Her expert testified that plaintiffs “romantic” feelings towards defendant were the result of “eroticized transference,” a medical phenomenon in which the patient experiences “near psychotic attraction” to a treating physician, which the patient is powerless to resist. Plaintiff also introduced evidence of general and special damages. Her claimed general damages consisted of mental distress—i.e., 12 years of anguish proximately caused by defendant’s malpractice. She asked for special damages of $435,600 for loss of her husband’s financial support, and $155,000 for legal fees incurred in connection with the divorce.

The trial court charged comparative fault, and the jury found malpractice with plaintiffs conduct a substantial factor, setting her fault at 25%. The jury awarded plaintiff $150,000 for past mental distress, $50,000 for future mental distress, $134,000 for past loss of income, $0 for future lost income, $0 for expenses of divorce, and $166,000 in punitive damages. Defendant appealed the malpractice finding; plaintiff cross-appealed, arguing that comparative fault should not have been charged because of the “inherent compulsion doctrine,” and that the legal fees were proved by her unrebutted testimony. The Appellate Division affirmed the judgment on the jury verdict, with one Justice dissenting (87 AD3d 975 [2d Dept 2011]). Both parties asked the Appellate Division for leave to appeal, which was granted in December 2011.

Plaintiff sought out defendant for medical treatment for depression and anxiety. Defendant prescribed antidepressant medication for plaintiff, even switching medications in response to her concerns about diminished libido; he referred her to a therapist. Further, the jury heard considerable testimony about the “transference” phenomenon, and defendant’s professional duty to manage this once he began treating plaintiffs mental health problems. The standard for medical malpractice is that “the challenged conduct constitute[ ] medical treatment or bear[ ] a substantial relationship” to the physician’s treatment of the patient (1B NY PJI3d 2:150 at 47-48 [2012] [emphasis added]; see also Scott v Uljanov, 74 NY2d 673, 675 [1989]). Here, where defendant was prescribing a course of treatment for plaintiffs mental health problems, including medication and counseling, a jury might reasonably conclude that the sexual relationship was substantially related to and, in fact, interfered with the treatment so as to constitute medical malpractice. That defendant mismanaged plaintiffs medical condition does not, however, negate comparative fault. The affair continued for nine months, during which time both plaintiff and defendant clearly sought out repeated sexual encounters. The jury might, as it obviously did, reasonably discount the expert’s testimony that plaintiff was wholly without volition in the matter.

Finally, punitive damages were improperly charged as a matter of law. The standard for an award of punitive damages is that a defendant manifest evil or malicious conduct beyond any breach of professional duty. There must be

“ ‘aggravation or outrage, such as spite or “malice,” or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that the conduct may be called wilful or wanton’ ” (see Prozeralik v Capital Cities Communications, 82 NY2d 466, 479 [1993], quoting Prosser and Keeton, Torts § 2 at 9-10 [5th ed 1984]).

The circumstances here do not measure up to this standard: there is no evidence the doctor willfully caused plaintiff’s “transference” or harm.

We consider the remaining issues raised on the appeal and cross appeal to be without merit.

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

Order modified, etc.


author: Pigott, J. (dissenting).

text:
    [981 NE2d 281, 957 NYS2d 685]
    Kendra Cividanes, Respondent, v City of New York, Defendant, and Manhattan and Bronx Surface Transit Operating Authority et al., Appellants.
    Decided November 29, 2012
    APPEARANCES OF COUNSEL

      Lawrence A. Silver, Brooklyn, and Wallace D. Gossett, for appellants.

      Burns & Harris, New York City (Blake G. Goldfarb of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff Kendra Cividanes testified at a General Municipal Law § 50-h hearing that she injured her left ankle when she “stepped off the last step into a hole and fell” as she exited the rear of a bus owned and operated by defendants New York City Transit Authority and Manhattan and Bronx Surface Transit Operating Authority. The Appellate Division properly held that the No-Fault Insurance Law is inapplicable because plaintiffs injury did not arise out of the “use or operation” of a motor vehicle (Insurance Law § 5104 [a]). The “use or operation” of the bus was neither a “proximate cause” nor an “instrumentality” that produced plaintiffs injury (see Walton v Lumbermens Mut. Cas. Co., 88 NY2d 211, 214 [1996] [noting that the No-Fault Insurance Law’s scope of coverage should be interpreted to “reflect the Legislature’s intent to draw a line between motor vehicle accidents and all other types of torts and to remove only the former from the domain of common-law tort litigation”]). Manuel v New York City Tr. Auth. (82 AD3d 1059 [2d Dept 2011]), which held on similar facts that the No-Fault Insurance Law’s restrictions on tort liability were applicable, should not be followed.

Pigott, J. (dissenting).

Plaintiff sued the City of New York, the Manhattan and Bronx Surface Transit Operating Authority and the New York City Transit Authority in negligence, after she stepped in a pothole while alighting from a bus, injuring her ankle. The case against the City of New York was dismissed based upon plaintiffs failure to show prior written notice of the defect. Plaintiffs claim against the Authorities is based upon alleged breach of the duty to stop at a place where she could safely disembark.

The majority, in affirming the Appellate Division’s order, holds that the No-Fault Insurance Law is inapplicable because plaintiffs injury did not arise out of the use or operation of a motor vehicle. I disagree and therefore respectfully dissent.

Under the No-Fault Insurance Law, a person is entitled to first-party benefits, from the insurer of the vehicle, for personal injury “arising out of the use or operation” of a motor vehicle in New York (Insurance Law § 5103 [a] [1]; see also Insurance Law § 5104 [a]). “The vehicle must be a proximate cause of the injury before the absolute liability imposed by the statute arises” (Walton v Lumbermens Mut. Cas. Co., 88 NY2d 211, 215 [1996]). Where, on the other hand, “the plaintiffs injury was caused by an instrumentality other than the insured vehicle” (id. at 214), plaintiffs recourse is tort litigation. Here, plaintiffs theory against the Authorities is that her injuries resulted from the bus driver’s positioning of the bus next to a hole in the street, when stopping the vehicle. In other words, she alleges that her loss was caused by “negligence in the . . . operation of a motor vehicle” (Insurance Law § 5104 [a]). That, in my view, triggers no-fault coverage.

The majority cites—and the Appellate Division relied upon— our decision in Walton v Lumbermens Mut. Cas. Co. There, a worker was injured when a “levelator” that he was standing on tipped over. The worker was transferring goods from the bed of his employer’s truck to a loading dock that he had backed up to for the purpose of unloading. The levelator was a device, separate from both the truck and the dock, that formed a height-adjustable bridge between the two. There was no allegation that the truck was negligently parked or was in any way a cause of the accident. In fact, the worker “never disputed that the truck itself did not cause his injuries or that the failure of the levelator was the proximate cause of his injuries” (Walton, 88 NY2d at 214). We held that if

“the plaintiffs injury was caused by an instrumentality other than the insured vehicle, liability for the losses sustained are more properly addressed outside the area of no-fault motor vehicle insurance. . . .
“The mere fortuity that plaintiffs injury occurred while he was engaged in unloading the truck does not support a claim for no-fault benefits because the vehicle itself was not a cause of the damage” {id. at 214-215).

The present case is clearly distinguishable from Walton. In Walton, the plaintiff conceded that the cause of his injuries was not the truck, but nevertheless tried to recover on the theory that, in unloading the truck, he was using or operating it within the meaning of the No-Fault Insurance Law. Here, by contrast, plaintiff alleges that a proximate cause of her injuries was the bus, i.e., the commonsense position that the bus driver, by stopping where he did, caused her accident. The majority’s citation of Walton is therefore inapposite. In my view, the correct precedent to apply to the present case is Manuel v New York City Tr. Auth. (82 AD3d 1059 [2d Dept 2011]), which held that the no-fault statute applies where, as here, “[t]he plaintiffs theory of liability is that her injuries resulted from the manner in which the bus driver operated the bus, specifically his positioning of the bus next to a hole in the street when he pulled over at the bus stop” (id. at 1061).

I disagree with the majority’s position that “[t]he ‘use or operation’ of the bus was neither a ‘proximate cause’ nor an ‘instrumentality’ that produced plaintiff’s injury” (majority mem at 926). A bus driver’s negligent operation of a bus is regarded as a proximate cause of plaintiffs injury if it was a substantial factor in bringing about that injury. Here, it can be concluded as a matter of law that the operation of the bus was a proximate cause of plaintiff’s fall (see generally Argentina v Emery World Wide Delivery Corp., 93 NY2d 554, 560 n 2 [1999], citing Forte v City of Albany, 279 NY 416, 422 [1939], and PJI 2:71).

To me, the analysis of this case is straightforward. Plaintiff alleges that her accident was proximately caused by the use or operation of a motor vehicle. Her allegation cannot be refuted as a matter of law. She is therefore entitled to seek basic economic loss coverage under the No-Fault Insurance Law and must prove serious injury as defined in that statute in order to recover for noneconomic loss (Insurance Law § 5104 [a]).

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

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


text:
    Susan Aranoff, Respondent, v Gerald Aranoff, Appellant.
    Submitted October 15, 2012;
    decided November 29, 2012
   Motion for reargument of motion for leave to appeal denied [see 19 NY3d 1004 (2012)].


text:
    Victor Barocas, Respondent, v Deborah Barocas, Appellant.
    Submitted October 1, 2012;
    decided November 29, 2012
   Motion to vacate this Court’s August 14, 2012 dismissal order denied [see 19 NY3d 993 (2012)].


text:
    Mahmoud Diarassouba, Respondent, v Spencer Lubin et al., Appellants.
    Submitted October 9, 2012;
    decided November 29, 2012
   Motion for reargument of motion for leave to appeal denied [see 19 NY3d 1016 (2012)].


text:
    In the Matter of Gregory John Fischer et al., Appellants, v NYS Board of Elections et al., Respondents.
    Submitted November 5, 2012;
    decided November 29, 2012
   Motion for reconsideration of this Court’s October 18, 2012 dismissal order denied [see 19 NY3d 1040 (2012)].


text:
    Patricia Kane, as the Limited Administratrix of the Estate of Jeanne Kane, Deceased, and Patricia Kane, Individually, Respondent, v John Galtieri, Appellant, and Marilyn Galtieri, Intervenor.
    Decided November 29, 2012
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Second Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, §§ 3 [b] [2]; 5 [b]; CPLR 5601 [b] [2]).


text:
    The People of the State of New York, Respondent, v Gerard J. Ryan, Appellant.
    Submitted October 22, 2012;
    decided November 29, 2012
   Motion for leave to appeal dismissed as untimely.


text:
    Wei Xu, Appellant, v Fangruo Chen, Respondent.
    Submitted October 1, 2012;
    decided November 29, 2012
   Motion, insofar as it seeks leave to appeal from the October 2011 Appellate Division order, dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution; motion, insofar as it seeks leave to appeal from the August 2012 Appellate Division order, denied.


author: Smith, J. (dissenting).

text:
    [982 NE2d 590, 958 NYS2d 670]
    The People of the State of New York, Appellant, v Michael Mox, Respondent.
    Argued November 13, 2012;
    decided December 11, 2012

      APPEARANCES OF COUNSEL

      Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), for appellant.

      Easton Thompson Kasperek Shiffrin LLP, Rochester (William T. Easton of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

A Monroe County grand jury returned an indictment charging defendant with the crime of murder in the second degree (Penal Law § 125.25 [1]) for the killing of his elderly father. The indictment alleged that defendant caused his father’s death by stabbing him and striking him in the head with a blunt instrument. Defendant had a documented history of mental illness and had been hospitalized in psychiatric treatment for much of the year preceding his father’s death.

After approximately six months of psychiatric hospitalization, defendant was declared competent to stand trial pursuant to CPL article 730. Defendant had filed a notice of intent to present psychiatric evidence, pursuant to CPL 250.10, to demonstrate that, at the time of the alleged crime, he suffered from a mental disease or defect. While both defendant’s and the People’s psychiatrists concluded that defendant suffered from schizophrenia or schizoaffective disorder, the experts disagreed as to whether the condition rendered defendant unable to appreciate the nature or wrongfulness of his conduct. The People’s psychiatrist, however, did find support for the affirmative defense of extreme emotional disturbance. The People subsequently offered a plea to the lesser included offense of manslaughter in the first degree under a theory of extreme emotional disturbance (Penal Law § 125.20 [2]) with a determinate sentence of 25 years plus five years’ postrelease supervision and a waiver of the right to appeal. Defendant accepted the offer and pleaded guilty.

During the plea colloquy before County Court, defendant stated that on the day of the crime, he was “hearing voices” and feeling painful bodily sensations, was “in a psychotic state” and had not taken his prescribed medication for several days. County Court accepted defendant’s plea. Immediately following, defense counsel informed County Court that she had discussed “the potential defense of not guilty by reason of mental disease or defect with [defendant] at length and that he was willing to forgo that defense in order to accept this plea.” County Court asked defendant if that was correct, and defendant replied, “Yes.” The court did not inquire further. Represented by new counsel, defendant moved before sentencing to withdraw his plea pursuant to CPL 220.60. County Court denied the motion and sentenced defendant in accordance with the terms of the plea agreement.

With one Justice dissenting, the Appellate Division reversed defendant’s conviction, holding that defendant’s plea allocution raised doubts as to his guilt of first-degree manslaughter as it tended to negate the intent element of that crime. The majority further held that County Court failed to fulfill its duty to make further inquiry to ensure the plea was knowing and voluntary (see People v Mox, 84 AD3d 1723, 1724 [4th Dept 2011]).

“[W]hen a criminal defendant waives the fundamental right to trial by jury and pleads guilty, due process requires that the waiver be knowing, voluntary and intelligent” (People v Hill, 9 NY3d 189, 191 [2007], citing NY Const, art I, § 6). “[N]o catechism is required in connection with the acceptance of a plea” (People v Goldstein, 12 NY3d 295, 301 [2009]). However, “where the defendant’s recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant’s guilt or otherwise calls into question the voluntariness of the plea, . . . the trial court has a duty to inquire further to ensure [the] guilty plea is knowing and voluntary” (People v Lopez, 71 NY2d 662, 666 [1988]; see People v Serrano, 15 NY2d 304, 308 [1965] [“the requisite elements should appear from the defendant’s own (factual) recital”]). Accordingly, “[w]here the court fails in this duty and accepts the plea without further inquiry, the defendant may challenge the sufficiency of the allocution on direct appeal” despite failing to do so in the form of a “postallocution motion” (Lopez, 71 NY2d at 666).

Here, defendant’s statements that he was “in a psychotic state” and “hearing voices” on the day of the crime signaled that he may have been suffering from a mental disease or defect at that time and, consequently, was unable to form the intent necessary to commit first-degree manslaughter under Penal Law § 125.20 (2) (see Penal Law § 40.15; People v Almonor, 93 NY2d 571, 580 [1999] [the affirmative defense of insanity “contemplates that as a result of mental disease or defect, the defendant lacks substantial capacity to know or appreciate either the nature and consequences of such conduct or that such conduct was wrong”]). County Court therefore had a duty under Lopez and Serrano to inquire further into whether defendant’s decision to waive a potentially viable insanity defense was an informed one such that his guilty plea was knowing and voluntary. The court’s single question to defendant verifying that he discussed that defense with his attorney and opted not to assert it was insufficient to meet that obligation. Thus, County Court erred in accepting defendant’s guilty plea (see Lopez, 71 NY2d at 666).

Smith, J. (dissenting).

This Court, speaking through Judge Breitel, observed 45 years ago that plea allocutions are best evaluated through “a sound discretion exercised in cases on an individual basis” rather than by “a uniform procedure which, like as not, would become a purely ritualistic device” (People v Nixon, 21 NY2d 338, 355 [1967]). The majority today forgets this wise admonition and erects the rule of People v Lopez (71 NY2d 662 [1988]) into a rigid requirement that a guilty plea must be vacated when the words spoken in the allocution leave significant doubt as to the defendant’s guilt. This case is a good illustration of why such rigid rules are unwise.

I agree with the majority that defendant’s allocution here, in which he said among other things that, when he killed his father, he was “hearing voices,” was “off [his] medication” and was “in a psychotic state,” left open the possibility that he could be found by a jury to have been legally insane. The record makes quite clear, however, that defendant was aware of the possibility of an insanity defense, had discussed it with his lawyer, and had decided to forgo it after a negotiation in which the People agreed to accept the partial defense of “extreme emotional disturbance,” reducing what would otherwise be a murder to a manslaughter conviction (see Penal Law §§ 125.25 [1] [a]; 125.20 [2]). I see no reason why defendant was not free to make that choice, or why he should not now be bound by the terms of his plea bargain.

The Appellate Division found this to be “one of those rare cases” mentioned in Lopez in which the allocution “cast[s] significant doubt upon the defendant’s guilt” (see People v Mox, 84 AD3d 1723, 1724 [4th Dept 2011], quoting Lopez, 71 NY2d at 666), and the majority here apparently agrees. But the words of Lopez should be read in their full context:

“In that rare case, however, where the defendant’s recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant’s guilt or otherwise calls into question the voluntariness of the plea, we have held that the trial court has a duty to inquire further to ensure that defendant’s guilty plea is knowing and voluntary” (71 NY2d at 666 [emphasis added]).

Thus the Lopez rule was designed as a safeguard to be sure that the defendant made a well-informed and voluntary choice to plead guilty; where he clearly did make such a choice, Lopez should not be used to invalidate the plea.

A rule that an allocution may never cast “significant doubt upon the defendant’s guilt” will often be unworkable in the case where a defendant has mental problems that may or may not rise to the level of insanity. The question of whether a defendant was legally insane or merely extremely emotionally disturbed is usually less simple than the question of whether he did or did not do the act of which he is accused. At a trial, the question of whether a defendant was insane is one to be decided by the factfinder, usually with the help of expert psychiatric evidence. It is hard to see how it can, in most cases, be resolved simply by questioning the defendant about his own, indisputably impaired, mental state. And it is particularly true, in cases of this kind, that the advice of the defense lawyer—which will generally be informed, as it was here, by expert reports—is more valuable than the allocution in assuring the voluntariness of a plea. To quote again Judge Breitel’s opinion in Nixon:

“[I]f independent and good advice in the interest of the defendant is the goal, it is more important that he consult with competent counsel than that a harried, calendar-conscious Judge be the one to perform the function in displacement of the lawyer” (21 NY2d at 354).

The record here shows that defendant made a knowing and voluntary decision, after discussion with his lawyer, to plead guilty to a reduced charge. His guilty plea should be reinstated.

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

Order affirmed, in a memorandum.

       The dissent opines that we have enacted a “requirement that a guilty plea must be vacated when the words spoken in the allocution leave significant doubt as to the defendant’s guilt” (dissenting op at 939). But that statement overlooks the crux of Lopez and of our holding today: Vacatur is warranted where such doubt is raised and the trial court takes no or inadequate measures to resolve it and ensure that the defendant’s plea is knowing and voluntary. The burden of further inquiry that Lopez places on the trial judge, even one who is “harried [and] calender-conscious” (dissenting op at 940, quoting Nixon, 21 NY2d at 354), is minimal.


text:
    [982 NE2d 587, 958 NYS2d 667]
    In the Matter of State of New York, Respondent, v John P., Appellant.
    Argued November 13, 2012;
    decided December 11, 2012

      APPEARANCES OF COUNSEL

      Lesley M. Delia, Mental Hygiene Legal Service, Mineola (Scott M. Wells and Dennis B. Feld of counsel), for appellant.

      Eric T. Schneiderman, Attorney General, New York City (Matthew W. Grieco, Barbara D. Underwood and Cecelia C. Chang of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

In this proceeding under Mental Hygiene Law article 10 (the Sex Offender Management and Treatment Act), appellant was found to be a dangerous sex offender requiring confinement. The evidence offered by the State included the testimony of a psychologist who had examined appellant as part of a screening process to decide whether an article 10 petition should be filed. Such examinations are authorized by Mental Hygiene Law § 10.05 (e), which says that where a detained sex offender is referred to a “case review team” for evaluation, the case review team “may arrange for a psychiatric examination.” The psychologist testified that, during the examination, appellant had admitted to having sexual contact with three children in addition to those mentioned in the records of appellant’s sex crimes.

Appellant argues that his statement to the psychologist should not have been admitted into evidence. But it was obviously relevant, and no statute prohibits its use. Appellant offers no reason that would justify excluding it except his contention that, because he had no counsel at the psychologist’s examination, the use of his statement violated his statutory and constitutional rights to counsel. We hold that these rights were not violated.

Appellant’s statutory claim is barred by the plain text of article 10. Mental Hygiene Law § 10.06 (c) and (d) say that the court “shall appoint counsel” for a person against whom an article 10 proceeding is brought either “[pjromptly upon the filing of a sex offender civil management petition” or upon a request to the court by the Attorney General to order a psychiatric evaluation. Section 10.08 (g) specifically says “that the respondent shall not be entitled to appointment of counsel prior to the time provided in section 10.06.” The psychiatric examination at issue here was held before the petition was filed, and before the case had been referred to the Attorney General; it was not a court-ordered examination, but part of the process required by statute to identify those cases in which article 10 proceedings should be brought. Appellant had no statutory right to counsel at the examination.

Appellant’s constitutional claim is also lacking in merit. We need not decide here whether there exists a constitutional right to counsel in article 10 proceedings that is similar to, or coextensive with, the right to counsel in criminal cases, because even under the rules applicable to criminal cases appellant’s rights were not violated.

Under the Federal Constitution, the right to counsel “attaches only at or after the time that adversary judicial proceedings have been initiated” (Kirby v Illinois, 406 US 682, 688 [1972]). Under the State Constitution,

“attachment occurs when (1) a person in custody requests the assistance of an attorney or a lawyer enters the case or (2) a criminal proceeding is commenced against the defendant by the filing of an accusatory instrument” (People v Lopez, 16 NY3d 375, 380 [2011]).

At the time of the examination at issue here, appellant’s right had not attached under either the federal or the state test.

Appellant reads People v Hawkins (55 NY2d 474 [1982]), in which we rejected the argument that a right to counsel should exist at lineups held before the commencement of formal criminal proceedings, to imply that there might be a different rule for pre-commencement interrogations-, we pointed out in Hawkins that the role of counsel at an interrogation is much more significant than at a lineup {id. at 485). But whatever inferences might be drawn from Hawkins, it cannot mean that either the Sixth Amendment to the Federal Constitution or its New York counterpart (NY Const, art I, § 6) forbids any questioning without counsel of anyone against whom a proceeding may later be brought. And short of such an unacceptably broad holding, we can see no rationale for concluding that counsel was required here.

The psychiatric examination of appellant not only preceded the commencement of a formal adversarial proceeding; it occurred before any decision to bring such a proceeding was made, and was part of a screening process. Appellant does not assert, and nothing in the record suggests, that the screening was a sham—a mere cover for an effort to gather evidence against him. Indeed, the State informs us that article 10 proceedings are brought only in a minority of the cases evaluated by case review teams. The examination was not ordered by a court, and appellant was not required to participate in it {compare Mental Hygiene Law § 10.06 [d] [“(T)he court shall order that the respondent submit to an evaluation by a psychiatric examiner chosen by the attorney general”] with § 10.05 [e] [omitting similar mandatory language]; see Mental Hygiene Legal Serv. v Cuomo, 785 F Supp 2d 205, 228 [SD NY 2011], vacated on other grounds sub nom. Mental Hygiene Legal Servs. v Schneiderman, 472 Fed Appx 45 [2d Cir 2012]; Matter of State of New York v Doe, 26 Misc 3d 962, 965-966 [Sup Ct, Franklin County 2009], revd on other grounds sub nom. Matter of State of New York v Daniel OO., 88 AD3d 212 [3d Dept 2011]). This was not fundamentally an adversarial procedure, and was not one in which counsel was necessary to protect appellant against “the coercive power of the State and its agents” (Hawkins, 55 NY2d at 485 [internal quotation marks and citation omitted]).

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

Order affirmed, without costs, in a memorandum.


text:
    [982 NE2d 81, 958 NYS2d 319]
    Musa Callistro, an Infant, by His Mother and Natural Guardian, Jessica Rivera, Appellant, v Michael W. Bebbington, M.D., et al., Respondents.
    Decided December 11, 2012

      APPEARANCES OF COUNSEL

      Law Offices of Fitzgerald & Fitzgerald, P.C., Yonkers (John M. Daly of counsel), for appellant.

      Heidell, Pittoni, Murphy & Bach, LLP, New York City (Daniel S. Ratner of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, and certified question not answered on the ground that it is unnecessary. Plaintiff failed to raise a triable issue of fact concerning whether defendants’ alleged malpractice in failing to perform a caesarean section rather than a vaginal delivery was the cause of the child’s alleged cognitive, receptive, and expressive deficits and developmental disability.

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


text:
    [982 NE2d 594, 958 NYS2d 674]
    In the Matter of Stray from the Heart, Inc., Appellant, v Department of Health and Mental Hygiene of the City of New York et al., Respondents.
    Argued November 13, 2012;
    decided December 11, 2012

      APPEARANCES OF COUNSEL

      Kaye Scholer LLP, New York City (Catherine St. John, H. Peter Haveles, Jr., Juan Garcia and Joseph Clark of counsel), for appellant.

      Michael A. Cardozo, Corporation Counsel, New York City (Avshalom Yotam, Karen M. Griffin and Francis F. Caputo of counsel), for respondents.

      Jimmy Yan, General Counsel, Office of the Manhattan Borough President, New York City, amicus curiae.
   OPINION OF THE COURT

Memorandum.

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

When a statute or local law does not expressly authorize a private right of action, the inquiry becomes whether the plaintiff is one of the class for whose particular benefit the law was enacted, whether recognition of a private right of action would promote the legislative purpose, and whether creation of such a right would be consistent with the legislative scheme (see Uhr v East Greenbush Cent. School Dist., 94 NY2d 32, 38 [1999]). It is clear from the legislative findings here (former Administrative Code of City of NY § 17-801) that the Animal Shelters and Sterilization Act was enacted for the benefit of the general public in New York City and for the safety of unwanted dogs and cats. Petitioner, an animal rescue organization “whose mission is to rescue, rehabilitate and place homeless dogs with loving new families,” does not belong to the class for whose specific benefit the law was enacted. Rather, petitioner alleges that it did work and bore costs that would have been unnecessary if the City had fulfilled the duty enjoined upon it by operation of that law. While petitioner’s work is commendable, the law does not provide for damages under such circumstances. Assuming, without deciding, that petitioner had standing to seek enforcement of the Animal Shelters and Sterilization Act, it has no private right of action for money damages, the only relief it seeks on this appeal.

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

Order affirmed, with costs, in a memorandum.


text:
    Accurate Realty, LLC, Respondent, v Samuel C. Donadio et al., Appellants.
    Submitted August 20, 2012;
    decided December 11, 2012
   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. Items of relief sought in the first cause of action remain pending.


text:
    Cedarwoods CRE CDO II, Ltd., et al., Appellants, v Galante Holdings, Inc., et al., Respondents, et al., Defendants.
    Submitted October 1, 2012;
    decided December 11, 2012
   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:
    Brenda Cornell, Respondent, v 360 West 51st Street Realty, LLC, et al., Defendants, and 360 W. 51st Street Corp., Appellant.
    Submitted November 5, 2012;
    decided December 11, 2012
   Motion to dismiss appeal denied.


text:
    In the Matter of Michael A. Cunningham, Appellant, v New York State Department of Labor, Respondent.
    Submitted October 29, 2012;
    decided December 11, 2012
   Motion to dismiss appeal etc. denied.


text:
    In the Matter of Gregory A. Goodwine, Sr., Appellant, v William A. Lee, Respondent.
    Submitted October 1, 2012;
    decided December 11, 2012
   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.


text:
    In the Matter of Shawn G. Granger, Respondent, v Danielle D. Misercola, Appellant.
    Submitted December 3, 2012;
    decided December 11, 2012
   Motion for a stay granted.


text:
    In the Matter of Lydia D., Respondent, v Thomas B., IV, Appellant.
    Submitted October 1, 2012;
    decided December 11, 2012
   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:
    Marko S., Also Known as Marko Alexander S. and Another, Respondent, v Heather S., Also Known as Heather Kim S., Appellant.
    Submitted July 23, 2012;
    decided December 11, 2012
   Motion for reargument denied [see 19 NY3d 875 (2012)].


text:
    Sharlene McKenzie, as Executrix of Oscar McKenzie, Jr., Deceased, Appellant, v Onondaga County et al., Respondents.
    Submitted August 20, 2012;
    decided December 11, 2012
   Motion to vacate this Court’s July 27, 2012 dismissal order granted [see 19 NY3d 970 (2012)]. On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of M.G.M. Insulation, Inc., et al., Appellants, v Colleen C. Gardner, as Commissioner of Labor, Respondent.
    Submitted December 3, 2012;
    decided December 11, 2012
   Motion by New York State Council of the National Electrical Contractors Association Chapters for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 19 copies filed within seven days.


text:
    In the Matter of Morris Builders, LP, et al., Respondents, v Empire Zone Designation Board et al., Appellants.
    Submitted October 29, 2012;
    decided December 11, 2012
   Motion to strike addendum to appellants’ brief and references thereto in appellants’ brief granted and this material is deemed stricken.


text:
    Lisa M. Oakes, Individually and as Executrix of Daniel C. Oakes, Deceased, Respondent, v Rajnikant Patel, M.D., et al., Appellants.
    Submitted September 10, 2012;
    decided December 11, 2012
   Motion to strike denied.


text:
    James Parolisi, Appellant, et al., Plaintiffs, v Janet Slavin, Respondent.
    Submitted September 10, 2012;
    decided December 11, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v Trevis D. Baker, Appellant.
    Submitted December 3, 2012;
    decided December 11, 2012
   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:
    The People of the State of New York, Respondent, v Joseph Harris, Appellant.
    Submitted November 26, 2012;
    decided December 11, 2012
   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 Martin Johnson, Appellant.
    Submitted December 3, 2012;
    decided December 11, 2012
   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 Pealer, Appellant.
    Submitted December 3, 2012;
    decided December 11, 2012
   Motion by District Attorneys Association of the State of New York for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    The People of the State of New York, Respondent, v Brendan J. Rhodes, Appellant.
    Submitted November 19, 2012;
    decided December 11, 2012
   Motion for assignment of counsel granted and John A. Girando, Esq., care of D.J. & J.A. Girando, Esqs., 101 South Salina Street, Suite 1010, Syracuse, New York 13202 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Appellant, v Sidney Wisdom, Respondent.
    Submitted December 10, 2012;
    decided December 11, 2012
   Motion for assignment of counsel granted and Lynn WL. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the respondent on the appeal herein.


text:
    In the Matter of the Arbitration between Shenendehowa Central School District Board of Education, Appellant, and Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, Local 864, et al., Respondents.
    Submitted December 3, 2012;
    decided December 11, 2012
   Motion by New York State School Boards Association, Inc., et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 19 copies filed within seven days.


text:
    In the Matter of the Arbitration between Shenendehowa Central School District Board of Education, Appellant, and Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, Local 864, et al., Respondents.
    Submitted December 3, 2012;
    decided December 11, 2012
   Motion by New York State United Teachers for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 19 copies filed within seven days.


text:
    United States Fidelity & Guaranty Company et al., Respondents, v American Re-Insurance Company et al., Appellants, et al., Defendants.
    Submitted December 3, 2012;
    decided December 11, 2012
   Motion by Complex Insurance Claims Litigation Association et al. for leave to file a brief amici curiae on the appeal herein denied.

Chief Judge Lippman taking no part.


text:
    United States Fidelity & Guaranty Company et al., Respondents, v American Re-Insurance Company et al., Appellants, et al., Defendants.
    Submitted December 3, 2012;
    decided December 11, 2012
   Motion by James J. Wrynn, Esq. 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 19 copies filed within seven days.


text:
    United States Fidelity & Guaranty Company et al., Respondents, v American Re-Insurance Company et al., Appellants, et al., Defendants.
    Submitted December 3, 2012;
    decided December 11, 2012
   Motion by United Policyholders 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 19 copies filed within seven days.


text:
    [982 NE2d 1245, 959 NYS2d 112]
    The People of the State of New York, Respondent, v Andrew Spencer, Appellant.
    Argued November 14, 2012;
    decided December 13, 2012

      APPEARANCES OF COUNSEL

      Law Offices of Randall D. Unger, Bayside (Randall D. Unger of counsel), for appellant.

      Richard A. Brown, District Attorney, Kew Gardens (Sharon Y. Brodt and John M. Castellano of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

A Queens County grand jury charged defendant with one count of criminal possession of a weapon in the second degree and other related charges. At defendant’s jury trial, the People adduced evidence that on the evening of August 16, 2006, defendant engaged in a street level altercation with a third party. Shortly thereafter, complainant, an off-duty police officer, arrived at the scene. Complainant and a number of other eyewitnesses testified that defendant punched complainant and brandished a firearm. Complainant ordered defendant to surrender his firearm, which was loaded. In addition to the eyewitness testimony, Supreme Court permitted the People to introduce into evidence the recordings of two 911 calls contemporaneously placed at the time of the incident.

Defendant interposed a defense, claiming that complainant had falsely implicated him and that it was the third party who possessed the firearm. Defendant sought to establish that complainant had a motive to frame defendant because complainant and the third party were close friends. Specifically, defendant wished to testify that, based on firsthand knowledge, complainant permitted the third party to deal drugs in front of his home and that complainant and the third party drag raced cars together. Supreme Court precluded this evidence on the ground that the proposed testimony was “collateral.”

The jury convicted defendant of second-degree criminal possession of a weapon and Supreme Court imposed a 15-year determinate sentence of imprisonment followed by five years of postrelease supervision. On appeal, the Appellate Division agreed with defendant that the proof he wished to elicit “should not have been excluded on the basis that it was collateral, as such exclusion goes directly to the defendant’s constitutional right to present a defense” (People v Spencer, 87 AD3d 751, 752 [2d Dept 2011]). However, the Court affirmed the judgment of conviction and sentence, concluding that any error was “harmless beyond a reasonable doubt” (id.). The Court further rejected defendant’s claim that “the trial court [evinced] impermissible prejudice or bias,” noting that many of defendant’s contentions were “partly based on matters outside the record” (id. at 753).

A defendant always has the constitutional right “to present a complete defense” (Crane v Kentucky, 476 US 683, 690 [1986], quoting California v Trombetta, 467 US 479, 485 [1984]). Nonetheless, “[i]t is well established that the trial courts have broad discretion to keep the proceedings within manageable limits and to curtail exploration of collateral matters” (People v Hudy, 73 NY2d 40, 56 [1988]). However, provided that counsel has a good faith basis for eliciting the evidence (see id. at 57), “extrinsic proof tending to establish a reason to fabricate is never collateral and may not be excluded on that ground” (id. at 56).

Applying this well defined standard, Supreme Court improperly precluded evidence pertaining to complainant’s friendship with the third party on the ground that it was collateral. Defendant’s alleged personal observations of complainant and the third party described by counsel to the court supplied a good faith basis for defendant’s proposed trial testimony. Moreover, the excluded evidence, if credited by the jury, tended to establish complainant’s motive to protect the third party by inculpating defendant. Nevertheless, given the overwhelming independent proof adduced at trial, including the testimony of several other eyewitnesses who corroborated complainant’s version of the events and the 911 calls admitted into evidence, we agree with the Appellate Division that the error was harmless beyond a reasonable doubt (see People v Crimmins, 36 NY2d 230, 240-241 [1975]). We also conclude that, to the extent reviewable, Supreme Court did not display impermissible bias toward defense counsel.

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

Order affirmed, in a memorandum.


author: Chief Judge Lippman (dissenting).

text:
    [982 NE2d 595, 958 NYS2d 675]
    Marlino Gress et al., on Behalf of Themselves and All Other Similarly Situated Persons, Respondents, v Byron Brown, as Mayor, City of Buffalo, et al., Respondents, and Buffalo Fiscal Stability Authority, Appellant.
    Argued October 17, 2012;
    decided December 13, 2012

      APPEARANCES OF COUNSEL

      Harris Beach PLLC, Pittsford (A. Vincent Buzard and John A. Mancuso of counsel), for appellant.

      Lipsitz Green Scime Cambria LLP, Buffalo (John M. Lichtenthal of counsel), for Marlino Gress and others, respondents.

      Timothy A. Ball, Corporation Counsel, Buffalo (David M. Lee of counsel), for Byron Brown and another, respondents.

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

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be reversed, with costs, the declaration that the Buffalo Fiscal Stability Authority (the BFSA) does not have the authority to freeze the wages of plaintiffs vacated, and plaintiffs’ complaint as against defendant BFSA dismissed.

In 2003, the legislature enacted the Buffalo Fiscal Stability Authority Act (the Act), declaring “that the city of Buffalo is facing a severe fiscal crisis, and that the crisis cannot be resolved absent assistance from the state” (Public Authorities Law § 3850-a); and determining that the City’s untenable reliance on “annual extraordinary increases in state aid to balance its budget” presented a grave issue of “overriding state concern . . . requiring the legislature to intervene” (id.). To that end, the legislature created the BFSA, a public benefit corporation empowered to control and freeze municipal-employee wages that were set “pursuant to collective bargaining agreements, other analogous contracts or interest arbitration awards” (id. § 3858 [2] [c] [i]). On April 21, 2004, the BFSA adopted Resolution No. 04-35 (available at http://www.bfsa.state.ny.us/ meetings2004/resolutions/res0435.pdf), which directed that “effective immediately, there shall be a freeze with respect to all wages, wage rates, and salary amounts for all employees of the City and all Non-exempt Covered Organizations, to the full extent authorized by the Act.” This wage freeze was meant “to prevent and prohibit any increase in wage rates, wages or salaries for any employee of the City or a Non-exempt Covered Organization” (emphases added).

Plaintiffs, who are at-will, seasonal employees of the City’s Public Works Department, commenced this class action against the City and its Mayor in January 2008. Plaintiffs alleged that the City violated Buffalo’s Living Wage Ordinance (City of Buffalo Code § 96-19) by failing to pay them scheduled wage increases; they asked for injunctive relief and retroactive pay. After the City and Mayor interposed the wage freeze resolution as an affirmative defense, plaintiffs amended their complaint to include the BFSA as a defendant and to seek a declaration that the “Buffalo Fiscal Stability [Authority] Act does not authorize or empower [the BFSA] to freeze or control wages of [p]laintiffs and the class.”

Plaintiffs moved for partial summary judgment against the BFSA, and the BFSA cross-moved for summary judgment, asserting that plaintiffs’ claim against it was time-barred because the declaratory relief requested was in substance an administrative challenge subject to CPLR article 78’s four-month limitations period. Supreme Court rejected the BFSA’s statute-of-limitations defense, and issued the declaration sought by plaintiffs. The Appellate Division affirmed (82 AD3d 1654 [4th Dept 2011]), and we granted leave to appeal (17 NY3d 714 [2011]).

In Solnick v Whalen (49 NY2d 224 [1980]), we established that the statute of limitations in an action for a declaratory judgment is determined “by reference to the gravamen of the claim or the status of the defendant party” (id. at 229). If a declaratory judgment action could have been commenced by an alternative proceeding “for which a specific limitation period is statutorily provided, then that period” applies instead of CPLR 213 (l)’s six-year catchall provision (id. at 230). As a result, we must “examine the substance of [the] action to identify the relationship out of which the claim arises and the relief [is] sought” (id. at 229).

Here, plaintiffs dispute the BFSA’s decision to suspend their scheduled wage increases. They do not quarrel with the wage freeze generally; rather, they contest its application to them through the BFSA’s administrative action. Such a challenge should have been raised by commencing a CPLR article 78 proceeding within four months after the BFSA’s adoption of Resolution No. 04-35 (see Solnick, 49 NY2d at 232 [“an ad hoc determination of an individual party’s right of reimbursement (is) a determination more accurately classified as administrative rather than legislative”]). The dissent counters that the BFSA, in fact, “had no authority to freeze the wages due plaintiffs pursuant to the Living Wage Ordinance” (dissenting op at 962). But whether or not authorized to do so, the BFSA froze plaintiffs’ wages and once this happened, the City and Mayor were bound by its action.

Chief Judge Lippman (dissenting).

It is evident that, as Supreme Court and the Appellate Division (82 AD3d 1654, 1655-1656 [4th Dept 2011]) held, defendant Buffalo Fiscal Stability Authority (BFSA) had no power to freeze plaintiffs’ wages. The BFSA’s enabling statute, Public Authorities Law, article 10-D, title 2 (§ 3850 et seq.), authorizes the Authority to suspend scheduled salary or wage increases of city employees where those increases would otherwise take effect “pursuant to collective bargaining agreements, other analogous contracts or interest arbitration awards, now in existence or hereafter entered into” (Public Authorities Law § 3858 [2] [c] [i]). There is no dispute that those in the plaintiff class are not compensated pursuant to a collective bargaining agreement or interest arbitration award, and the expert affidavit of Cornell Professor Risa L. Lieberwitz duly credited by Supreme Court demonstrates that the terms of plaintiffs’ employment are in no way analogous to those of other municipal employees negotiated in collective bargaining; plaintiffs’ compensation is governed instead exclusively by the schedule unilaterally set by the City in section 96-19 of its municipal Code, otherwise referred to as the Living Wage Ordinance.

In construing a wage freeze provision remarkably similar to the BFSA resolution relied upon by the present defendants, we held in Patrolmen’s Benevolent Assn. of City of N.Y. v City of New York (41 NY2d 205 [1976]) that judicially mandated salary increases were exempt from the freeze there at issue. In so holding, we were guided by the familiar principle that “where . . . the statute describes the particular situations in which it is to apply, ‘an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded’ (McKinney’s Cons Laws of NY, Book 1, Statutes, § 240)” (id. at 208-209). Application of the same rule of construction to the provision here at issue leads inexorably to the conclusion that the legislature did not intend to authorize a freeze of the wages of municipal employees such as plaintiffs, whose rate of compensation was not the product of collective bargaining or an analogous contract, or of interest arbitration.

Nor should it be hard to understand why the legislature would have exempted from the contemplated wage freeze employees who, even with scheduled wage increases, would earn no more than what the City itself had determined to be the bare minimum living wage. Indeed, it is apparent from the face of the Living Wage Ordinance that in enacting it the City made a considered judgment that, even at a time of acknowledged financial crisis {see City of Buffalo Code § 96-19 [A] [8]), paying City employees an hourly wage that would minimally suffice for a family of three to live at or just above the federal poverty level, would ultimately inure to the City’s economic advantage. The Ordinance in its statement of intent observes that “[t]he use of taxpayer dollars to promote sustenance and create family-supporting jobs will increase consumer income while decreasing levels of poverty” (City of Buffalo Code § 96-19 [A] [5]), and that “living-wage legislation may benefit the larger community by reducing reliance on taxpayer-funded public assistance such as food stamps, Medicaid, emergency medical services and other social programs provided by the Erie County government” (City of Buffalo Code § 96-19 [A] [6]). Given these purposes, there is no reason to believe that the legislature’s failure to authorize a BFSA freeze of the wages of workers whose rate of compensation was governed solely by the Living Wage Ordinance was attributable to some oversight; it would not be reasonable to suppose that the legislature intended to empower the BFSA to interfere with a very modest municipal compensation scheme that, in the City’s estimation, would, by sustaining the livelihood of covered employees such as plaintiffs at or slightly above the federal poverty line, ultimately inure to the fiscal benefit of Buffalo and Erie County.

Inasmuch as the BFSA had no authority to freeze the wages due plaintiffs pursuant to the Living Wage Ordinance, it is difficult to see how an action such as this one, seeking enforcement of the right to be compensated in accordance with the Ordinance, can be understood as a challenge to the April 2004 BFSA wage freeze resolution upon which defendants now rely. Indeed, it is only by construing the resolution as an ultra vires exercise—one purporting to bind plaintiffs even in the absence of authority to do so—that the resolution may be said to bear upon plaintiffs’ claims at all. But the subject BFSA resolution, assertedly, reaches only as far as the Authority’s enabling legislation permits, which, as noted, is not so far as to affect plaintiffs’ entitlement to be paid in accordance with the Living Wage Ordinance.

Nor does there seem to be any basis for defendants’ contention that plaintiffs should have known that the BFSA resolution was binding upon them because their rate of pay was consequently frozen. There is, in fact, no discernible relation between the alleged failure by the City to pay plaintiffs at the pay rate mandated by the Living Wage Ordinance and the 2004 BFSA resolution. Plaintiffs allege that they have not been paid at the rate to which they were entitled since 2002—fully two years prior to the BFSA wage freeze resolution. Defendants, on the other hand, allege that plaintiffs were actually paid in excess of the wages required by the Ordinance. Under either scenario there would have been no clearly perceptible relationship between the issuance of the BFSA wage freeze and plaintiffs’ rate of pay. There is when all is said and done no indication that the Authority’s 2004 wage freeze was intended to be, or was in fact, effectual, much less final and binding as to plaintiffs, and, that being the case, it cannot have operated to set the four-month statutory period running as to their claims (see CPLR 217 [1]).

This was at its inception and remains in its actual aspect simply an enforcement action of the sort expressly permitted by the Living Wage Ordinance (City of Buffalo Code § 19-96 [F] [1]), and, as such, subject to the special limitations period set forth in the Ordinance running for two years subsequent to the discovery of an alleged violation (id.). It should be elementary that defendants’ interposition of a time-bar defense based on an irrelevant BFSA resolution logically cannot transform the action’s gravamen; the action does not become a challenge to an administrative determination subject to the four-month statutory period set forth in CPLR 217 unless there is a final and binding administrative determination truly implicated by plaintiffs’ claims. Here, that condition is not met. And, in its absence, there is no reading of Solnick v Whalen (49 NY2d 224 [1980]) that permits, much less requires, the result the majority has reached. Accordingly, I dissent and would affirm the order of the Appellate Division.

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

Order, insofar as appealed from, reversed, with costs, the declaration that the Buffalo Fiscal Stability Authority does not have the authority to freeze the wages of plaintiffs vacated and plaintiffs’ complaint as against defendant Buffalo Fiscal Stability Authority dismissed, in a memorandum.

       The wage freeze remained in effect until July 1, 2007, when the BFSA lifted it (see Buffalo Fiscal Stability Authority Resolution No. 07-21, available at http://www.bfsa.state.ny.us/meetings2007/resolutions/res07021.pd0.

      . The provision there at issue read, “Increases in salary or wages of employees of the city . . . which have taken effect since June thirtieth, nineteen hundred seventy-five or which will take effect after that date pursuant to collective bargaining agreements or other analogous contracts, now in existence or hereinafter entered into . . . are hereby suspended” (Patrolmen’s Benevolent Assn., 41 NY2d at 208 [emphasis added]).

      . The resolution recites that it is to be effective “to the full extent authorized by the Act,” thus recognizing that the BFSA’s wage freeze authority under the Public Authorities Law is not boundless (see BFSA Resolution No. 04-35, available at http://www.bfsa.state.ny.us/meetings2004/resolutions/ res0435.pdf).

      . The City contends in this connection that although plaintiffs’ stated hourly rate was not the one to which they were entitled, they were paid for hours for which they did not work and, in consequence, received in excess of the compensation to which they would have been entitled for their hours of work.


text:
    [982 NE2d 88, 958 NYS2d 325]
    In the Matter of Peter Principe, Respondent, v New York City Department of Education, Appellant.
    Decided December 13, 2012

      APPEARANCES OF COUNSEL

      Michael A. Cardozo, Corporation Counsel, New York City (Julian L. Kalkstein of counsel), for appellant.

      Lichten & Bright, PC, New York City (Stuart Lichten 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, and certified question answered in the affirmative. The Appellate Division correctly determined that the penalty of termination imposed on petitioner was excessive in light of all the circumstances (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 233 [1974]).

Concur: Chief Judge Lippman and Judges Cipakick, Graffeo, Read and Pigott. Judge Smith dissents and votes to reverse for the reason that it cannot be concluded, as a matter of law, that the penalty of termination shocks the judicial conscience (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 233 [1974]).


text:
    In the Matter of Walter Adelman, Appellant, v Michael A. Gary, Respondent.
    Submitted October 22, 2012;
    decided December 13, 2012
   Motion for reargument denied [see 19 NY3d 1003 (2012)].


text:
    Jennifer Cangro, Appellant, v Gina Marie Reitano, Respondent.
    Submitted October 29, 2012;
    decided December 13, 2012
   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:
    Israel Grossman et al., Appellants, v New York Life Insurance Company, Respondent. (And a Third-Party Action.)
    Submitted October 15, 2012;
    decided December 13, 2012
   Motion for reargument of motion for leave to appeal denied [see 19 NY3d 991 (2012)].


text:
    In the Matter of Kaytlin TT., a Child Alleged to be Permanently Neglected. Cortland County Department of Social Services, Respondent; Betty SS., Appellant. (Proceeding No. 1.) (And Two Other Related Proceedings.)
    Submitted October 15, 2012;
    decided December 13, 2012
   Motion for reargument of motion for leave to appeal denied [see 13 NY3d 709 (2009)].


text:
    Sabrina Oliveri, Respondent, v Vassar Brothers Hospital, Appellant.
    Submitted October 29, 2012;
    decided December 13, 2012
   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 1801 Sixth Avenue, LLC, Appellant, v Empire Zone Designation Board et al., Respondents. (Proceeding No. 1.) In the Matter of Hiawatha Associates, LLC, Appellant, v Empire Zone Designation Board et al., Respondents. (Proceeding No. 2.) In the Matter of Erie Boulevard Hydropower, LR Appellant, v Empire Zone Designation Board et al., Respondents. (Proceeding No. 3.) In the Matter of Pioneer Fulton Shopping Center, LLC, Appellant, v Empire Zone Designation Board et al., Respondents. (Proceeding No. 4.) In the Matter of Third National Associates Group, Appellant, v Empire Zone Designation Board et al., Respondents. (Proceeding No. 5.) In the Matter of Third National Associates, LLC, Appellant, v Empire Zone Designation Board et al., Respondents. (Proceeding No. 6.)
    Submitted October 22, 2012;
    decided December 13, 2012
   Motions for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceedings within the meaning of the Constitution.


text:
    In the Matter of Fedie R. Redd, Appellant, v Edward A. Battisti et al., Respondents.
    Submitted October 15, 2012;
    decided December 13, 2012
   Motion, insofar as it seeks leave to appeal from the Appellate Division order affirming the Supreme Court judgment, denied; motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument or, in the alternative, leave to appeal to the Court of Appeals, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    George Bundy Smith, Sr., Individually and on Behalf of Twenty Plus Members of Grace Congregational Church of Harlem, Inc./United Church of Christ, Appellant, v United Church of Christ et al., Respondents.
    Submitted August 13, 2012;
    decided December 13, 2012
   Motion for reargument of motion for leave to appeal denied [see 19 NY3d 940 (2012)].


text:
    In the Matter of the Claim of David Wyche, Appellant. Commissioner of Labor, Respondent.
    Submitted October 15, 2012;
    decided December 13, 2012
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying reconsideration and further relief, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    [982 NE2d 614, 958 NYS2d 694]
    Michel D. Tyson, Appellant, v Lawrence Nazarian, Respondent.
    Decided December 18, 2012

      APPEARANCES OF COUNSEL

      Davison Law Office, PLLC, Canandaigua (Mark C. Davison of counsel), for appellant.

      Burgio, Kita & Curvin, Buffalo (Hilary C. Banker of counsel), for respondent.
   OPINION OF THE COURT

The order of the Appellate Division should be modified, without costs, by denying defendant’s motion for summary judgment and remitting to the Appellate Division for further proceedings in accordance with this memorandum, and, as so modified, affirmed.

Sufficient record evidence exists to raise a triable issue of fact as to whether plaintiff suffered a “serious injury” within the meaning of Insurance Law § 5102 (d) (see Gaddy v Eyler, 79 NY2d 955, 957 [1992]). In view of its disposition, the Appellate Division did not address plaintiff’s contention that she is entitled to summary judgment on the issue of defendant’s negligence. We therefore remit for that purpose.

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

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order modified, without costs, by denying defendant’s motion for summary judgment and remitting to the Appellate Division, Fourth Department, for further proceedings in accordance with the memorandum herein and, as so modified, affirmed.


text:
    [982 NE2d 1252, 959 NYS2d 119]
    The People of the State of New York, Respondent, v Calvin Mays, Appellant.
    Argued November 13, 2012;
    decided December 18, 2012

      APPEARANCES OF COUNSEL

      Timothy P. Donaher, Public Defender, Rochester (James G. Eckert of counsel), for appellant.

      Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper and Stephen X. O’Brien of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant Calvin Mays was charged with robbery and related offenses arising from two armed robberies in Rochester. One of the robberies was recorded on a surveillance video, which was admitted into evidence at his jury trial. The trial exhibit consisted of a copy of a single DVD taken from the store’s video surveillance system, and showed the robbery from two different cameras and angles. During deliberations, the jury sent the trial judge a note asking to see the video again; it was played for them by the prosecutor through a computer and projected onto a television screen. The record reflects that the video was slowed down for the jury “close to real time,” and that it was difficult to make out the beginning part of the relevant images. While the prosecutor was playing the video at the judge’s direction, jurors called out various requests—i.e., to reduce the glare from courtroom lights, to play the video again, to freeze a view— which the prosecutor accommodated. This resulted in some back-and-forth between jurors and the prosecutor, on the order of “Can you freeze it?” “I just did”; and “Do you want to see it again?” “Yes.”

The jury acquitted defendant of all charges relating to the videotaped robbery, but convicted him of first- and second-degree robbery for the other crime charged. He was sentenced as a persistent violent felony offender to concurrent indeterminate terms of imprisonment of 25 years to life. Upon his appeal, defendant argued that the trial judge’s decision to permit the prosecutor to interact directly with the jury while replaying the surveillance video violated People v O’Rama (78 NY2d 270 [1991]), requiring reversal of the judgment of conviction and sentence. The Appellate Division, with two Justices dissenting, rejected defendant’s O’Rama claim, concluding that the complained-of communications were “merely ministerial” in nature, “concerning the scope of a request for a readback” and “wholly unrelated to the substantive legal or factual issues of the trial” (85 AD3d 1700, 1701 [4th Dept 2011] [internal quotation marks omitted]). A dissenting Justice granted defendant leave to appeal, and we now affirm.

Defendant contends that the trial judge committed an O’Rama error by neglecting to give counsel notice and a say before formulating a response to the jury’s requests during the playback (see O’Rama, 78 NY2d at 277-278). Here, though, defense counsel was aware of the content of the jurors’ comments, which were made out loud in open court, and did not object to anything the judge or prosecutor did in response. And as the Appellate Division pointed out, the prosecutor’s communications with the jury were ministerial. Asking that the lights be dimmed because a juror was bothered by the glare, playing the video again once they were, or attempting to stop the video at the place the jurors wished is not the kind of substantive response that implicates O’Rama. As a result, preservation was required.

Additionally, we reject defendant’s argument that the trial judge improperly delegated judicial responsibility in contravention of People v Ahmed (66 NY2d 307 [1985], rearg denied 67 NY2d 647 [1986]). The record does not show that the judge’s control of the courtroom was ever diminished in any way. He was present throughout and participated in the discussion during the replay of the video. And finally, it bears repeating that defendant was acquitted of all the charges arising from the videotaped robbery.

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

Order affirmed, in a memorandum.