text:
    [918 NE2d 945, 890 NYS2d 432]
    Arts4All, Ltd., et al., Respondents, v Judith L. Hancock, Appellant, and Counterclaim Plaintiff-Appellant. Daniel Y.C. Ng et al., Additional Counterclaim Defendants, and Peter Osgood, Additional Counterclaim Defendant-Respondent.
    Decided October 20, 2009

      APPEARANCES OF COUNSEL

      Trachtenberg Rodes & Friedberg LLP, New York City {David G. Trachtenberg of counsel), for appellant.

      Law Offices of Zachary R. Greenhill, P.C., New York City {Zachary R. Greenhill 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 as unnecessary. The courts below did not abuse their discretion in dismissing defendant’s counterclaims pursuant to CPLR 3126 (3) {see Arts4All, Ltd. v Hancock, 12 NY3d 846 [2009]). Defendant’s remaining argument is without merit.

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


source: Caselaw Access Project

license: Public Domain

text:
    Heather Book, Appellant, v Edward Book, Respondent.
    Submitted August 3, 2009;
    decided October 20, 2009
    Reported below, 58 AD3d 781.
   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:
    Community Network Service, Inc., Appellant, v Verizon New York, Inc., Respondent.
    Submitted August 24, 2009;
    decided October 20, 2009
    Reported below, 63 AD3d 547.
   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:
    Greenpoint Mortgage Funding, Respondent, v Congregation Ohel Zissel et al., Defendants, and Hendy Hirsch et al., Appellants.
    Submitted September 8, 2009;
    decided October 20, 2009
    Reported below, 60 AD3d 809.
   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:
    Leeward Isles Resorts, Limited, Respondent, v Charles C. Hickox, Appellant.
    Submitted August 31, 2009;
    decided October 20, 2009
    Reported below, 61 AD3d 622.
   Motion for leave to appeal dismissed upon the ground that the order sought to he appealed from does not finally determine the action within the meaning of the Constitution. Cross motion for the imposition of sanctions denied.


text:
    Paul Palmieri, Respondent, v Town of Babylon, Appellant.
    Submitted September 9, 2009;
    decided October 20, 2009
    Reported below, 56 AD3d 740.
   Motion for reargument of motion for leave to appeal denied. Cross motion for the imposition of sanctions denied [see 12 NY3d 909 (2009)].


text:
    The People of the State of New York, Appellant, v Miguel Alemany, Respondent.
    Submitted September 28, 2009;
    decided October 20, 2009
    Reported below, 56 AD3d 251.
   Motion to strike granted and the material contained in appellant’s brief and reply brief to which objection is taken is deemed stricken.

Chief Judge Lippman taking no part.


text:
    In the Matter of The People of the State of New York, by Eliot Spitzer, as Attorney General of the State of New York, Respondent, v Gaston Hooks Jr., Individually and Doing Business as Justice for All Document Preparation, Mediation and Lawyer Referral Firm, Appellant.
    Submitted August 31, 2009;
    decided October 20, 2009
    Reported below, 64 AD3d 1075.
   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 ex rel. Abdul- Jabbor Malik, Appellant, v State of New York, Respondent.
    Decided October 20, 2009
    Reported below, 58 AD3d 1042.
   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. Moreover, here, there is no order of the Appellate Division granting appellant leave to appeal to the Court of Appeals.


text:
    In the Matter of Matthew Pitt, Appellant, v Keith Dubray, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
    Submitted September 8, 2009;
    decided October 20, 2009
    Reported below, 2009 NY Slip Op 8008KU).
   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 the Estate of James E. Selvy, Deceased. Allan Selvy, Appellant; Valerie Taylor et al., Respondents.
    Submitted August 24, 2009;
    decided October 20, 2009
    Reported below, 2008 NY Slip Op 79883(U).
   Motion for reargument denied [see 11 NY3d 865 (2009)].

Chief Judge Lippman taking no part.


text:
    Tai Ping Chen, Appellant, v Citibank et al., Respondents.
    Submitted August 31, 2009;
    decided October 20, 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 poor person relief dismissed as academic.


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

text:
    [918 NE2d 897, 890 NYS2d 385]
    Lily Salm, Appellant, v Mark S. Moses, D.D.S., Respondent.
    Argued September 10, 2009;
    decided October 22, 2009

      APPEARANCES OF COUNSEL

      Greenwald Law Offices, Chester (Gary Greenwald, Marc Leffler and David A. Brodsky of counsel), for appellant.

      Mauro Goldberg & Lilling, LLP, Great Neck (Caryn Lilting and Richard J. Montes of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff commenced this dental malpractice action against defendant based on his allegedly negligent failure to repair an oral fistula. At trial, defendant moved in limine to preclude plaintiff from cross-examining defendant’s expert regarding the fact that he and defendant were both shareholders of and insured by the same dental malpractice insurance company, OMS National Insurance Company (OMSNIC). Plaintiff opposed the motion, but did not request a voir dire of the expert to inquire into his connection to OMSNIC. After a colloquy with counsel, Supreme Court granted the motion, finding that the probative value of the inquiry would be outweighed by the prejudicial effect of having defendant’s insurance coverage revealed to the jury. Upon plaintiffs appeal following a jury verdict in favor of defendant, the Appellate Division affirmed (57 AD3d 370 [1st Dept 2008]). We granted plaintiff leave to appeal.

Although cross-examination is a matter of right (see Matter of Friedel v Board of Regents of Univ. of State of N.Y., 296 NY 347, 352 [1947]), it is well settled that its scope and manner are left to the sound discretion of the trial court (see Bernstein v Bodean, 53 NY2d 520, 529 [1981]; Feldsberg v Nitschke, 49 NY2d 636, 643 [1980], rearg denied 50 NY2d 1059 [1980]). Therefore, absent an abuse of discretion, a trial court’s determination is beyond our review.

Evidence that a defendant carries liability insurance is generally inadmissible (see Leotta v Plessinger, 8 NY2d 449, 461 [1960], rearg denied 9 NY2d 688 [1961]; Simpson v Foundation Co., 201 NY 479, 490 [1911]). The rationale underlying this rule is twofold. First, “it might make it much easier to find an adverse verdict if the jury understood that an insurance company would be compelled to pay the verdict” (Loughlin v Brassil, 187 NY 128, 135 [1907]). Second, evidence of liability insurance injects a collateral issue into the trial that is not relevant as to whether the insured acted negligently. Although we have acknowledged that liability insurance has increasingly become more prevalent and that, consequently, jurors are now more likely to be aware of the possibility of insurance coverage, we have continued to recognize the potential for prejudice (see Oltarsh v Aetna Ins. Co., 15 NY2d 111, 118-119 [1965]; see also Barker and Alexander, Evidence in New York State and Federal Courts § 4:63, at 260-261 [5 West’s NY Prac Series 2001] [“Because the prejudice quotient is obvious, the rule barring such evidence is one of the least controversial in the law of evidence”]).

The rule, however, is not absolute. If the evidence is relevant to a material issue in the trial, it may be admissible notwithstanding the resulting prejudice of divulging the existence of insurance to the jury. For example, we have held that evidence that a defendant insured a premises is relevant to demonstrate ownership or control over it (see Leotta, 8 NY2d at 462). Likewise, it was proper to allow cross-examination of a physician regarding the fact that the defendant’s insurance company retained him to examine the plaintiff in order to show bias or interest on the part of the witness (see Di Tommaso v Syracuse Univ., 172 App Div 34, 37 [4th Dept 1916], affd without op 218 NY 640 [1916]).

Here, we perceive no abuse of discretion in Supreme Court’s evidentiary ruling. Such evidence may be excluded if the trial court finds that the risk of confusion or prejudice outweighs the advantage in receiving it (see Kish v Board of Educ. of City of N.Y., 76 NY2d 379, 384-385 [1990]). In this case, plaintiff speculated during the colloquy that a verdict in defendant’s favor could result in a $100 benefit—at the time of the expert’s death, disability or retirement—based on the expert’s shareholder status in OMSNIC. The trial court’s finding that any such financial interest was likely “illusory” and that the possibility of bias was attenuated was reasonable on this record. Absent a more substantial connection to the insurance company—or at least something greater than a de minimis monetary interest in the carrier’s exposure—the court did not engage in an abuse of discretion in precluding the testimony. We note that a voir dire of an expert outside the presence of the jury can better aid the court in exploring the potential for bias.

Pigott, J. (concurring).

I concur with the majority’s conclusion but write separately because, in my view, courts should no longer treat insurance coverage as the third rail of trial practice such that it can neither be mentioned, even incidentally, nor be the basis of appropriate inquiry as to possible bias, as in the ruling here. It is routine—even statutory—that jurors be asked if they are “a shareholder, stockholder, director, officer or employee ... in any insurance company issuing policies for protection against liability for damages for injury to person or property” (CPLR 4110 [a]). The reason for the question is obvious. Someone who is so situated may have a tendency to find for a defendant even though, according to the way we conduct our trials, insurance may never be mentioned again.

Enter the defendant in this case who, by way of a motion in limine, sought to prevent the jury from learning that defendant’s expert suffers the very disability that would have subjected them to a challenge to the favor—that he owns stock in a company that writes liability insurance. In fact, he owns stock in the very insurance company that will be required to pay any judgment rendered against the defendant in this case. The jury should be made aware of that fact. To keep this information from them means they are arriving at a verdict without all the material facts before them—something every court seeks to prevent.

It is common knowledge that most defendants carry insurance. Indeed, most prospective jurors are cognizant of the significant role in litigation that liability insurance plays, be it business, homeowner’s or automobile insurance (see e.g. Oltarsh v Aetna Ins. Co., 15 NY2d 111, 118 [1965] [“it is the rare individual who today does not know that ‘defendants in negligence cases are insured and that an insurance company and its lawyer are defending’ ” (citation omitted)]).

This is not to say that evidence of insurance should be admitted as a matter of course; there must always be a legitimate basis for its admission. However, in my view, there are appropriate instances when insurance evidence should be admitted to establish a party’s or a witness’s bias or interest, and trial courts should not shy away from admitting it if, after conducting the appropriate balancing test, they think that its admission is relevant under the circumstances. The admission of such evidence can be accompanied by a limiting instruction if the court believes it appropriate. Moreover, because trial courts have the discretion to place limitations on the scope of the questioning relative to such evidence, defendants can be assured that the admission of such evidence will serve its intended, relevant purpose of showing potential bias or interest without undue prejudice to the defendant.

Ordinarily, in a case such as the one before us, a court should reserve decision on the motion until the expert takes the stand and can be questioned, outside the presence of the jury, about his interest in defendant’s insurance company and any possible bias. Then a reasoned ruling could be made. Because plaintiff did not request such an opportunity, under these facts, I concur in the majority’s decision to affirm.

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

Order affirmed, with costs, in a memorandum.


author: Memorandum.

text:
    [918 NE2d 949, 890 NYS2d 435]
    In the Matter of 47 Ave. B. East Inc., Respondent, v New York State Liquor Authority, Appellant.
    Decided October 22, 2009

      APPEARANCES OF COUNSEL

      Thomas J. Donohue, New York City, and Scott A. Weiner for appellant.

      Mehler & Buscemi, New York City (Martin P. Mehler of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed with costs, and the petition dismissed. The State Liquor Authority (SLA)’s finding that petitioner permitted overcrowding on the premises in violation of SLA rules was supported by substantial evidence (300 Gramatan Ave. Assoc, v State Div. of Human Rights, 45 NY2d 176, 180 [1978]).

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 reversed, etc.


text:
    [920 NE2d 929, 892 NYS2d 822]
    The People of the State of New York, Respondent, v Rashad McNair, Appellant.
    Argued September 17, 2009;
    decided October 22, 2009

      APPEARANCES OF COUNSEL

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

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

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant pleaded guilty to one count of forgery in the second degree in violation of Penal Law § 170.10 (1) relative to his execution of an application to open a joint bank account. On appeal, defendant claims that the trial court erred in accepting his plea because his statements to the court negated the element of intent to defraud. Defendant neither moved to withdraw his plea nor to vacate the judgment of conviction; rather, he sought to challenge the sufficiency of the plea allocution for the first time on direct appeal. In doing so, he seeks to invoke the “narrow exception” to the preservation requirement delineated in People v Lopez (71 NY2d 662 [1988]). That exception applies only “[i]n that rare case . . . 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,” thereby imposing on the trial court “a duty to inquire further to ensure that defendant’s guilty plea is knowing and voluntary” (id. at 666 [citations omitted]). When such a situation arises, if the trial court accepts the plea without conducting the required further inquiry, a defendant is entitled to challenge the allocution’s sufficiency on direct appeal, even if the defendant fails to make a postjudgment motion (id.).

We agree with defendant that, during the plea allocution, he initially made remarks that “cast significant doubt” on his guilt concerning the element of intent to defraud, thereby triggering the trial court’s duty to conduct a further inquiry to ensure that defendant’s plea was knowingly and voluntarily made. The plea minutes demonstrate that the trial court properly conducted such an inquiry and found that defendant possessed the necessary criminal intent to defraud. Having failed to move thereafter to withdraw his plea, defendant waived any further challenge to the allocution, and thus no issue is preserved for our review (see Lopez, 71 NY2d at 668).

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 Ramon Alvarez, Appellant, v New York State Division of Parole et al., Respondents.
    Decided October 22, 2009
    Reported below, 63 AD3d 1402.
   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 Larry Ball et al., Appellants, v City of Syracuse et al., Respondents.
    Submitted August 3, 2009;
    decided October 22, 2009
    Reported below, 60 AD3d 1312.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and is not an order of the type provided for in CPLR 5602 (a) (2).


text:
    Barklee Realty Company LLC et al., Appellants, v Michael Bloomberg, as Mayor of the City of New York, et al., Respondents.
    Decided October 22, 2009
    Reported below, 63 AD3d 479.
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Deborah Etzion, Appellant, v Rafael Etzion et al., Respondents.
    Submitted September 8, 2009;
    decided October 22, 2009
    Reported below, 62 AD3d 646.
   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:
    Deborah Etzion, Appellant, v Rafael Etzion et al., Respondents.
    Submitted September 21, 2009;
    decided October 22, 2009
    Reported below, 62 AD3d 646.
   Motion by Women’s Bar Association of the State of New York 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 Max Geshwind, Deceased. David M. Geshwind, Appellant; Frank Geshwind, Respondent.
    Submitted August 10, 2009;
    decided October 22, 2009
    Reported below, 60 AD3d 679.
   Motion, insofar as it seeks leave to appeal from the Appellate Division order of affirmance, dismissed as untimely (see Eaton v State of New York, 76 NY2d 824 [1990]); motion, insofar as it seeks leave to appeal from the Appellate Division order denying appellant’s motion for reargument, reconsideration and amendment of its decision, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution.


text:
    Frederick R. Hawkes, Respondent, v Bonnie M. Hawkes, Appellant.
    Submitted August 10, 2009;
    decided October 22, 2009
    Reported below, 61 AD3d 1436.
   Motion, insofar as it seeks leave to appeal from the Appellate Division order dismissing the appeal from the order of Supreme Court that, among other things, denied appellant’s motion to reopen, dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.

Judge Pigott taking no part.


text:
    In the Matter of Linda S., Appellant, v Westchester County Department of Social Services, Respondent.
    Submitted August 17, 2009;
    decided October 22, 2009
    Reported below, 63 AD3d 1164.
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed so much of Family Court’s order as dismissed the petition, denied; motion, insofar as it seeks leave to appeal from another part of the Appellate Division order, dismissed upon the ground that such portion of the order does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Nikki O., Respondent, v William N., Appellant. (And Two Other Related Proceedings.)
    Submitted August 10, 2009;
    decided October 22, 2009
    Reported below, 64 AD3d 938.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceedings within the meaning of the Constitution.


text:
    The People of the State of New York, Appellant, v Mohamed Kadry, Respondent.
    Submitted October 19, 2009;
    decided October 22, 2009
    Reported below, 63 AD3d 856.
   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:
    The People of the State of New York, Appellant, v Juwanna Wrotten, Respondent.
    Submitted October 19, 2009;
    decided October 22, 2009
    Reported below, 60 AD3d 165.
   Motion by New York State Association of Criminal Defense Lawyers 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:
    Jamillah K. Rasheed-Waters, Respondent, et al., Plaintiff, v Kawasaki Rail Car, Inc., Appellant, et al., Defendants.
    Submitted August 17, 2009;
    decided October 22, 2009
    Reported below, 60 AD3d 1030.
   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:
    Victor J. Runner, Respondent, v New York Stock Exchange, Inc., et al., Appellants.
    Submitted October 19, 2009;
    decided October 22, 2009
   Motion by Defense Association of New York, Inc. for leave to file a brief amicus curiae on consideration of the certified questions herein granted and the proposed brief is accepted as filed.


text:
    Iqbal Singh, Appellant, v City of New York Division of Housing Preservation and Development, Respondent.
    Submitted August 3, 2009;
    decided October 22, 2009
    Reported below, 2009 NY Slip Op 7673501).
   Motion for leave to appeal from the Appellate Division order denying reargument dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution.


text:
    Gregory J. Tarone, Appellant, v Madeleine K. Tarone, Respondent.
    Decided October 22, 2009
    Reported below, 2009 NY Slip Op 77173(U).
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Victor Woodard, Appellant, v Albert Prack, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
    Submitted August 31, 2009;
    decided October 22, 2009
    Reported below, 64 AD3d 842.
   Motion for leave to appeal granted. Motion for poor person relief granted.


text:
    [919 NE2d 177, 891 NYS2d 6]
    M Entertainment, Inc., et al., Appellants, v Laurence Leydier, Respondent, et al., Defendants.
    Decided October 27, 2009

      APPEARANCES OF COUNSEL

      Bienstock & Michael, P.C., New York City (Randall S.D. Jacobs of counsel), for appellants.

      Satterlee Stephens Burke & Burke LLP, New York City (Christopher R. Belmonte of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

The Appellate Division erred in concluding that plaintiffs’ noncompliance with the requirement that mail service be accomplished by mailing “within the state” {see CPLR 2103 [b] [2]; [f] [1]) constituted a “fatal jurisdictional defect” requiring the dismissal of plaintiffs’ appeal against Lawrence Leydier. CPLR 5520 (a) provides:

“If an appellant either serves or files a timely notice of appeal or notice of motion for permission to appeal, but neglects through mistake or excusable neglect to do another required act within the time limited, the court from or to which the appeal is taken or the court of original instance may grant an extension of time for curing the omission.”

Plaintiffs here timely filed their notice of appeal with the New York County Clerk’s office, thus authorizing the Appellate Division to determine whether to exercise its discretion pursuant to CPLR 5520 (a). By contrast, the movants in Cipriani v Green (96 NY2d 821 [2001], rearg denied 97 NY2d 639 [2001]) and National Org. for Women u Metropolitan Life Ins. Co. (70 NY2d 939 [1988], rearg denied 71 NY2d 890 [1988]) not only failed to timely serve their notices of motion for leave to appeal, but they also failed to timely file those papers with this Court. Thus, in those cases, the Court could not invoke its discretionary authority under CPLR 5520 (a).

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

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


text:
    [918 NE2d 954, 890 NYS2d 440]
    In the Matter of Thomas Gillen, Appellant, v Steven D. Conkling, as Treasurer of the County of Nassau, Respondent.
    Decided October 27, 2009

      APPEARANCES OF COUNSEL

      Kenneth Cooperstein, Centerport, for appellant.

      Loma B. Goodman, County Attorney, Mineóla (Gil Nahmias and Dennis J. Saffran of counsel), for respondent.
   OPINION OF THE COURT

Appeal dismissed, without costs, upon the ground that the issues presented have become moot.

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


text:
    In the Matter of Juanita Aikens, Respondent, v Kenneth Mark Nell, Appellant.
    Submitted July 27, 2009;
    decided October 27, 2009
    Reported below, 63 AD3d 1662.
   Motion for leave to appeal granted. Motion for poor person relief granted.


text:
    In the Matter of Elias H. Attea, Jr., Appellant, v Tax Appeals Tribunal et al., Respondents.
    Decided October 27, 2009
    Reported below, 64 AD3d 909.
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    DDJ Management, LLC, et al., Appellants, v Rhone Group L.L.C. et al., Respondents, et al., Defendants.
    Submitted September 8, 2009;
    decided October 27, 2009
    Reported below, 60 AD3d 421.
   Motion by Loan Syndications and Trading Association et al. for leave to file a memorandum of law amici curiae on the motion for leave to appeal herein granted and the memorandum of law is accepted as filed, and for leave to file a brief amici curiae on the appeal herein granted, three copies of the brief to be served and an original and 24 copies filed within 30 days.


text:
    In the Matter of Jordan, an Infant. Family Focus Adoption Services, Inc., et al., Respondents; Maria B., Appellant.
    Submitted September 14, 2009;
    decided October 27, 2009
    Reported below, 60 AD3d 764.
   Motion by MFY Legal Services, Inc. for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    In the Matter of Jordan, an Infant. Family Focus Adoption Services, Inc., et al., Respondents; Maria B., Appellant.
    Submitted September 14, 2009;
    decided October 27, 2009
    Reported below, 60 AD3d 764.
   Motion by NYS Kinship Navigator 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 New York Charter School Association et al., Respondents, v M. Patricia Smith, as Commissioner of Labor, Appellant. (Proceeding No. 1.) In the Matter of Foundation for a Greater Opportunity et al., Respondents, v M. Patricia Smith, as Commissioner of Labor, et al., Appellants. (Proceeding No. 2.)
    Submitted September 8, 2009;
    decided October 27, 2009
    Reported below, 61 AD3d 1091.
   Motion by New York State Building & Construction Trades Council, AFL-CIO, for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed, and for leave to file a brief amicus curiae on the appeal herein granted, three copies of the brief to be served and an original and 24 copies filed within 30 days.


text:
    The People of the State of New York, Respondent, v Susan McDade, Appellant.
    Submitted October 22, 2009;
    decided October 27, 2009
    Reported below, 64 AD3d 884.
   Motion to vacate this Court’s October 21, 2009 dismissal order granted [see 13 NY3d 834 (2009)].


text:
    In the Matter of Serota Brown Court II, LLC, et al., Respondents, v Town of Hempstead et al., Appellants. Town Board of Town of Hempstead et al., Nonparty Appellants.
    Submitted August 31, 2009;
    decided October 27, 2009
    Reported below, 62 AD3d 715; 2009 NY Slip Op 77779(U).
   Motion by respondents Town of Hempstead, the Board of Appeals of the Town of Hempstead, and the Department of Buildings of the Town of Hempstead, insofar as it seeks leave to appeal from the Appellate Division order affirming the judgment of Supreme Court granting the petition, denied; motion, insofar as it seeks leave to appeal from the July 2009 Appellate Division order, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution. Motion by the Town Board of the Town of Hemp-stead, insofar as it seeks leave to appeal from the Appellate Division order that, among other things, denied its motion to intervene, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution; motion, insofar as it seeks leave to appeal from the Appellate Division order affirming the judgment of Supreme Court granting the petition, dismissed upon the ground that movant is not a party to this proceeding. Motion by Oceanside Cove Homeowners Association and the Alhambra Condominium for leave to intervene herein denied. Motion by Oceanside Cove Homeowners Association and the Alhambra Condominium, insofar as it seeks leave to appeal from the July 2009 Appellate Division order that, among other things, denied their motion to intervene, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution; motion, insofar as it seeks leave to appeal from the Appellate Division order affirming the judgment of Supreme Court granting the petition, dismissed upon the ground that movants are not parties to this proceeding.


text:
    In the Matter of Neil M. Siskind, Respondent, v Courtney A. Schael, Appellant. Roberta Nancy Kaufman, Nonparty Respondent.
    Submitted June 9, 2009;
    decided October 27, 2009
    Reported below, 62 AD3d 805.
   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:
    Donald J. Trump et al., Appellants, v Henry Cheng et al., Respondents, et al., Defendants.
    Submitted August 10, 2009;
    decided October 27, 2009
    Reported below, 63 AD3d 623.
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed the dismissal of all but the expressly severed 18th cause of action, denied; motion, insofar as it seeks leave to appeal from the remainder of the Appellate Division order, dismissed upon the ground that it does not finally determine the action within the meaning of the Constitution.


text:
    [920 NE2d 340, 892 NYS2d 284]
    In the Matter of Edward J. Vomero, Appellant, v City of New York et al., Respondents.
    Argued October 15, 2009;
    decided November 19, 2009

      APPEARANCES OF COUNSEL

      Samuel L. Scollar, Staten Island, and Marc E. Scollar, for appellant.

      Michael A. Cardozo, Corporation Counsel, New York City {Tahirih M. Sadrieh and Edward F.X. Hart of counsel), for City of New York, respondent.

      Passarello & LaRosa, Staten Island {John Z. Marangos and Richard A. LaRosa of counsel), for GAC Catering, Inc., respondent.
   OPINION OF THE COURT

Memorandum.

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

A local zoning board has broad discretion when reviewing an application for a zoning variance, but its determination may be set aside if the record reveals that “the board acted illegally or arbitrarily, or abused its discretion” (Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d 608, 613 [2004]). In this case, the zoning board’s decision to grant a use variance for the construction of a commercial structure in a residentiallyzoned area was an abuse of discretion. The physical conditions of the parcel relied on by the board did not establish that the property’s characteristics were “unique” as defined by New York City Zoning Resolution § 72-21 (a). Proof of uniqueness must be “peculiar to and inherent in the particular zoning lot” (NY City Zoning Resolution § 72-21 [a]), rather than “common to the whole neighborhood” (Matter of Clark v Board of Zoning Appeals of Town of Hempstead, 301 NY 86, 91 [1950], cert denied 340 US 933 [1951]; see also Dauernheim, Inc. u Town Bd. of Town of Hempstead, 33 NY2d 468, 471-472 [1974]). The fact that this residentially zoned corner property is situated on a major thoroughfare in a predominantly commercial area does not suffice to support a finding of uniqueness since other nearby residential parcels share similar conditions.

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

Order reversed, etc.


text:
    In the Matter of Danny Echevarria, Appellant, v Patricia D. Marks, Monroe County Court Judge, Respondent.
    Submitted October 26, 2009;
    decided November 19, 2009
    Reported below, 57 AD3d 1479.
   Motion by the Legal Aid Society for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Kevin Glassman, Respondent, v Pro Health Ambulatory Surgery Center, Inc., et al., Appellants.
    Submitted November 9, 2009;
    decided November 19, 2009
    Reported below, 55 AD3d 538.
   Motion by New York State Association of Ambulatory Surgery Centers, Inc. for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Eugenia Brennan Heslin, as Administrator of the Estate of Egypt A. Phillips, Deceased, Appellant, v County of Greene, Respondent, et al., Defendants.
    Submitted November 9, 2009;
    decided November 19, 2009
    Reported below, 53 AD3d 996.
   Motion by City of New York et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    In the Matter of Jimmy D., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Submitted July 20, 2009;
    decided November 19, 2009
    Reported below, 63 AD3d 737.
   Motion for leave to appeal granted. Motion for poor person relief granted.


text:
    The People of the State of New York, Respondent, v Mazin Assi, Appellant.
    Submitted November 9, 2009;
    decided November 19, 2009
    Reported below, 63 AD3d 19.
   Motion by Anti-Defamation League for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    The People of the State of New York, Respondent, v Dana R. Bradford, Appellant.
    Submitted November 2, 2009;
    decided November 19, 2009
    Reported below, 61 AD3d 1419.
   Motion for assignment of counsel granted and Timothy P. Donaher, Esq., Monroe County Public Defender, 10 N. Fitzhugh Street, Rochester, New York 14614 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Appellant, v Jason D. Liggins, Respondent.
    Submitted October 26, 2009;
    decided November 19, 2009
    Reported below, 64 AD3d 1213.
   Motion for assignment of counsel granted and Richard P Ferris, Esq., 293 Genesee Street, Room 403, Mayro Building, Utica, New York 13501 assigned as counsel to the respondent on the appeal herein.


text:
    The People of the State of New York, Respondent, v Oldalys Ortega, Appellant.
    Submitted November 2, 2009;
    decided November 19, 2009
    Reported below, 64 AD3d 422.
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    Eddie Salas, Appellant, v New York City Police Department, Respondent.
    Submitted August 10, 2009;
    decided November 19, 2009
    Reported below, 63 AD3d 468.
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    [920 NE2d 348, 892 NYS2d 292]
    The People of the State of New York, Respondent, v Brian Henderson, Appellant.
    Argued October 21, 2009;
    decided November 23, 2009

      APPEARANCES OF COUNSEL

      Office of the Appellate Defender, New York City (Richard M. Greenberg and Eunice C. Lee of counsel), and Simpson Thacher & Bartlett LLP (Marsha W. Yee of counsel) for appellant.

      Robert T Johnson, District Attorney, Bronx (Rither Alabre, Joseph N. Ferdenzi and Karen Swiger of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

This appeal stems from a fight at the Anna M. Kross Center at Rikers Island Jail, after which defendant Brian Henderson was charged with attempted assault in the first degree (Penal Law §§ 110.00, 120.10) and other crimes. At trial, the People placed defendant at the center of the fight, while the defense argued that defendant was not even present when the fight broke out.

Two correction officers testified that, at about 9:30 p.m. on March 17, 2003, a noisy disturbance in the day room of the housing unit where they were working attracted their attention. One correction officer saw defendant throw over a table on which another inmate was sitting, and both officers saw defendant in a fight with this inmate-victim . According to one of the officers, defendant pulled out a metallic object from his left shirt sleeve and attacked the inmate-victim, throwing punches and delivering sudden jabs to his body; the other officer saw blood on the inmate-victim’s shirt.

The officers activated their personal body alarms, devices that electronically summon assistance, and ordered the inmates to stop fighting. When defendant walked over to the shower area, across from the day room, one of the correction officers followed. This officer saw defendant place an object down one of the drains before returning to the day room. After the combatants were removed to their cells, a nine-inch shank with a point and a sharpened edge was retrieved from the drain. The inmate-victim was taken to the prison clinic for treatment of his injuries, consisting of multiple 2-centimeter by 10-millimeter deep puncture wounds to the left shoulder and arm, a 3-centimeter laceration between the third and fourth fingers of his left hand, and multiple small stab wounds and lacerations. Defendant presented an alternative version of what happened through the inmate-victim’s testimony. The inmate-victim stated that, while correction officers were giving “options” (meaning they had opened the cell doors and were allowing inmates to retrieve personal items), he was sitting on a table in the day room. He claimed to have gotten into a fight with a “Spanish brother” over the use of a telephone; eventually, several inmates joined the fray. He testified that defendant was a friend, not among his assailants (whom he described as three to four Hispanic males, about 20 to 25 years old), and, indeed, did not even enter the day room until after the fight was over.

On cross-examination, the prosecutor pursued several lines of inquiry designed to cast doubt on the inmate-victim’s credibility. She brought to light that the inmate-victim first accused the “Spanish brother” at trial, but that soon after the attack, he signed a handwritten statement asserting “I don’t know what happened. I don’t know who did this.” She elicited testimony that he served fellow inmates with their meals individually three times daily, from which the jury might infer that he was very familiar with his fellow inmates and therefore always likely to have been able to identify his assailant. Moreover, the inmate-victim acknowledged that he had been incarcerated in a holding cell with defendant the previous week, after which he spoke to defense counsel for the first time. The prosecutor then asked him “What do inmates . . . in a cell call an individual who is a victim in a case and he comes to court and testifies against another inmate?” This provoked the inmate-victim to insist that he had not been intimidated by defendant. He bragged that he had been in many fights, had assaulted staff, and could take care of himself.

The jury convicted defendant of attempted assault in the first degree and did not consider the other crimes charged. After an unsuccessful motion pursuant to CPL 330.30 to set aside the verdict, defendant was sentenced as a mandatory persistent violent felony offender to a term of 16 years to life imprisonment. Defendant then moved pursuant to CPL 440.10 to vacate the judgment of conviction and sentence. Supreme Court issued an order denying the motion, and the Appellate Division granted defendant permission to appeal the order, which was consolidated with his direct appeal. The Appellate Division subsequently affirmed both the judgment and the order, with one justice dissenting on one of several claimed trial errors; specifically, that the prosecutor’s cross-examination of the inmate-victim and remarks made during summation improperly suggested that he was lying because he had been intimidated by defendant. The dissenting justice granted defendant leave to appeal, and we now affirm.

The prosecutor’s questions on cross-examination reasonably attacked the inmate-victim’s truthfulness and explored motives for his testimony clearing defendant of participation in the fight, including intimidation or fear of reprisal. The inmate-victim’s contact with defendant at a time when he decided to testify for the defense was relevant in this regard. Further, the prosecutor’s summation comments were a fair response to defense counsel’s closing argument, in which he asked, “Why in a room full of inmates, did not one inmate come forward to say that [defendant] had anything to do with this?” The prosecutor legitimately suggested possibilities other than defendant’s innocence; namely, the prospect of retaliation (“[s]nitches get stitches”), or adherence to a code of silence.

Defendant’s remaining arguments, to the extent preserved, are without merit.

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

Order affirmed in a memorandum.


text:
    [920 NE2d 342, 892 NYS2d 286]
    Vintage, LLC, Appellant, v Laws Construction Corp. et al., Respondents, et al., Defendants.
    Argued October 14, 2009;
    decided November 23, 2009

      APPEARANCES OF COUNSEL

      Pinsky & Skandalis, Syracuse (Philip C. Pinsky of counsel), and Goetz Fitzpatrick, LLP, New York City, for appellant.

      Andrew Greene & Associates, PC., White Plains (Stanley S. Zinner, Sondra Miller and Andrew Greene of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be affirmed with costs.

Gagne Development Company, Inc. intended to develop a golf course in the Bronx. Gagne asked plaintiff Vintage, LLC, a golf course construction consulting company, for its assistance in finding a suitable general contractor for the project. Following failure of that project, Vintage sued, among others, defendants Westway Industries, Inc., Laws Construction Corp., and “West-way Industries, Inc./Laws Construction Corp. a joint venture” (Westway/Laws) for breach of contract, and United States Fidelity & Guaranty Company on a payment bond. The parties stipulated that the trial would be on the issue of liability only.

Offered into evidence at trial was correspondence on letterhead entitled “WESTWAY INDUSTRIES, INC./LAWS CONSTRUCTION CORE, A JOINT VENTURE.” This letter of intent purports to summarize a potential agreement between Gagne and Westway/Laws. It was dated March 3, 2000, and signed by William J. Vescio, president of Laws Construction.

The two agreements that give rise to Vintage’s cause of action, however, are dated some seven weeks later, April 27, 2000, and state that they are between “WESTWAY INDUSTRIES AND/OR SU-Z INC. AND/OR LAWS CONSTRUCTION CORE, HEREINAFTER REFERRED TO AS (GENERAL CONTRACTOR) AND VINTAGE, LLC.” These agreements were not signed by anyone from Laws Construction and the documents nowhere indicate that they were signed by anyone claiming to be acting on behalf of a joint venture. Rather, they were signed by Stephen Nigro as president of Westway Industries and Kenneth Reinartz as president of Vintage. Defendants now argue that they are entitled to judgment notwithstanding the verdict, since the agreements were unambiguous in that the joint venture is not a party to the agreements. We agree.

Supreme Court should have granted defendants’ motion for a directed verdict because, viewing the evidence in a light most favorable to Vintage, there is no rational process by which the jury could have based a finding in Vintage’s favor, as the agreements unambiguously establish that only Vintage and Westway Industries agreed to be bound by their terms.

An agreement is unambiguous when its words “have a definite and precise meaning, unattended by danger of misconception in the purport of the [contract] itself, and concerning which there is no reasonable basis for a difference of opinion” (Breed v Insurance Co. of N. Am,., 46 NY2d 351, 355 [1978], rearg denied 46 NY2d 940 [1979] [citations omitted]). Where an agreement is unambiguous on its face, it must be enforced in accordance with the plain meaning of its terms (see Greenfield v Philles Records, 98 NY2d 562, 569 [2002] [citations omitted]).

The two agreements here, each dated April 27, 2000 and drafted by Vintage, lend themselves to no other interpretation than that only Vintage and Westway Industries were to be bound by their terms. Neither agreement referenced the entity “Westway Industries, Inc./Laws Construction Corp. a joint venture.” Nor is there any indication from a plain reading of the agreements that any signatory executed them on behalf of a joint venture. Thus, the only rational interpretation is that the sole parties to the agreements were Vintage and Westway Industries.

Although Vintage claims that the earlier correspondence directed to Gagne on joint venture letterhead constitutes some evidence that a joint venture was in place the date the agreements were signed, that is irrelevant to our analysis because the terms of the agreements govern, and they unambiguously demonstrate that the signatories intended to bind only Westway Industries to the obligations contained therein.

In light of this ruling, any claim by Vintage relative to the payment bond is without merit.

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

Order, insofar as appealed from, affirmed, with costs, in a memorandum.


text:
    [919 NE2d 179, 891 NYS2d 8]
    In the Matter of Anthony Ettari, Respondent, v Brian Fischer, as Commissioner of Correctional Services, et al., Appellants.
    Decided November 23, 2009

      APPEARANCES OF COUNSEL

      Andrew M. Cuomo, Attorney General, Albany (Kathleen M. Arnold, Barbara D. Underwood and Denise A. Hartman of counsel), for appellants.

      Anthony Ettari, respondent pro se.
   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 reversed, without costs, and petition dismissed (see People ex rel. Gill v Greene, 12 NY3d 1 [2009]).

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


text:
    [920 NE2d 90, 891 NYS2d 686]
    Verizon New York, Inc., Appellant, v Paul J. Garvin, Respondent, et al., Defendant. (And Another Action.)
    Decided November 24, 2009

      APPEARANCES OF COUNSEL

      Cosgrove Law Firm, Buffalo (Timothy J. Flynn of counsel), for appellant.

      Barth Sullivan Behr, Buffalo (Pierre A. Vincent of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Defendant landowner was entitled to summary judgment dismissing the complaint of plaintiff Verizon New York, Inc. for property damages arising from a fire that originated on defendant’s premises. Defendant came forward with evidence that, less than a year before the fire, he installed smoke detectors that were inspected and deemed operable by a municipal inspector, contradicting plaintiff’s claim that he negligently failed to install or maintain smoke detectors. In response, plaintiff did not raise a triable issue of fact by submitting proof in admissible form that the smoke detectors did not work on the day of the fire or that, prior to the incident, defendant had actual or constructive notice that they were not operable.

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:
    [920 NE2d 90, 891 NYS2d 686]
    The People of the State of New York, Respondent, v Christian Tabb, Appellant.
    Decided November 24, 2009

      APPEARANCES OF COUNSEL

      Legal Aid Bureau of Buffalo, Inc., Buffalo {Robert B. Hallborg, Jr., David C. Schopp and Barbara J. Davies of counsel), for appellant.

      Frank A. Sedita, III, District Attorney, Buffalo {Raymond C. Herman of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

During deliberations, the jury sent a note to the trial court that asked for direction on, or an explanation of, “the legal definition of self defense.” Nothing in the record indicates that the court informed defense counsel and the prosecutor about the contents of the note. In the absence of record proof that the trial court complied with its core responsibilities under CPL 310.30, a mode of proceedings error occurred requiring reversal (see e.g. People v Kisoon, 8 NY3d 129, 135 [2007]; People v O’Rama, 78 NY2d 270, 277 [1991]).

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

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


text:
    Virginia Albizu, Respondent, v Jose Duval, Appellant.
    Submitted October 19, 2009;
    decided November 24, 2009
    Reported below, 57 AD3d 384.
   Motion for reargument of motion for leave to appeal denied [see 13 NY3d 752 (2009)].


text:
    Ruchama Gamiel, Appellant, v Curtis & Reiss-Curtis, P.C., et al., Respondents. (And a Third-Party Action.)
    Submitted October 19, 2009;
    decided November 24, 2009
    Reported below, 60 AD3d 473.
   Motion for reargument of motion for leave to appeal denied. Motion for a stay dismissed as academic [see 13 NY3d 763 (2009)].


text:
    In the Matter of Sean Hamilton, Appellant, v Richard Brown et al., Respondents.
    Submitted September 21, 2009;
    decided November 24, 2009
    Reported below, 54 AD3d 760.
   Motion for leave to appeal dismissed upon the ground that the issues presented have become moot.


text:
    In the Matter of Reginald Hannah, Appellant, v New York State Division of Parole et al., Respondents.
    Submitted September 21, 2009;
    decided November 24, 2009
    Reported below, 2009 NY Slip Op 71990(U).
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Huntington Hebrew Congregation of Huntington, Respondent, v Melvyn Tanenbaum, Appellant, and Split Rock Developers, Inc., Respondent, et al., Respondent.
    Submitted September 21, 2009;
    decided November 24, 2009
    Reported below, 62 AD3d 704; 2009 NY Slip Op 79897(U).
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying renewal, reargument or, in the alternative, leave to appeal to the Court of Appeals, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Freddie Jenkins, Respondent, v Fieldbridge Associates, LLC, Appellant.
    Decided November 24, 2009
    Reported below, 65 AD3d 169.
   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:
    Robert E. Judge, Appellant, v New York College of Professional Health, Respondent.
    Submitted September 28, 2009;
    decided November 24, 2009
    Reported below, 2008 NY Slip Op 68025(U); 2008 NY Slip Op 82157(U); 2008 NY Slip Op 88405(U).
   Motion for reargument denied [see 13 NY3d 763 (2009)].


text:
    Michael Owens et al., Doing Business as Classic Entertainment, Respondents, v Isaac Freeman, Also Known as Fatman Scoop, Appellant.
    Submitted October 5, 2009;
    decided November 24, 2009
    Reported below, 65 AD3d 731.
   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 Frank LaPetina, Appellant.
    Submitted October 19, 2009;
    decided November 24, 2009
    Reported below, 34 AD3d 836.
   Motion for reargument dismissed as untimely (see Rules of Ct of Appeals [22 NYCRR] § 500.24 [bj) [see 9 NY3d 854 (2009)].

Chief Judge Lippman taking no part.


text:
    The People of the State of New York ex rel. Justo Richards, Appellant, v Calvin West, as Superintendent of Elmira Correctional Facility, Respondent. In the Matter of Justo Richards, Appellant, v Calvin West, Respondent.
    Submitted September 21, 2009;
    decided November 24, 2009
    Reported below, 2009 NY Slip Op 78317(U); 2009 NY Slip Op 78318CU).
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the proceedings within the meaning of the Constitution. Motion for poor person relief etc. dismissed as academic.


text:
    Alejandro Rosa, Appellant, v State of New York, Respondent.
    Submitted October 13, 2009;
    decided November 24, 2009
    Reported below, 63 AD3d 1383.
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that it is untimely (see CPLR 5513 [a]). Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    In the Matter of Christopher Shapard, Appellant, v Anthony Zon, Superintendent, Wende Correctional Facility, et al., Respondents.
    Submitted June 5, 2009;
    decided November 24, 2009
    Reported below, 63 AD3d 1661.
   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 Kathy Tahat, Appellant. Commissioner of Labor, Respondent.
    Submitted September 14, 2009;
    decided November 24, 2009
    Reported below, 58 AD3d 921.
   Motion, insofar as it seeks leave to appeal from the Appellate Division order of affirmance, dismissed as untimely (see CPLR 5513 [b]); motion for leave to appeal otherwise dismissed upon the ground that it does not lie (see CPLR 5602).


text:
    John Vislocky, Respondent, v City of New York et al., Appellants.
    Submitted October 5, 2009;
    decided November 24, 2009
    Reported below, 62 AD3d 785.
   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:
    [921 NE2d 590, 893 NYS2d 823]
    Charles Scaparo et al., Appellants, v Village of Ilion et al., Defendants, and Herkimer County Industrial Development Agency et al., Respondents. (Action No. 1.) Anthony Yero et al., Appellants, v Village of Ilion et al., Defendants, and Herkimer County Industrial Development Agency et al., Respondents. (Action No. 2.)
    Decided December 1, 2009

      APPEARANCES OF COUNSEL

      Brindisi, Murad, Brindisi, Pearlman, Julian & Perz, LLP, Utica (Anthony J. Brindisi of counsel), for appellants.

      Roche, Corrigan, McCoy & Bush, PLLC, Albany (Robert P. Roche of counsel), for Herkimer County Industrial Development Agency, respondent.

      Law Office of John A. Panzone, PC., Barneveld {John A. Pan-zone of counsel), for Our Lady Queen of Apostles Church of St. Mary of Mount Carmel/S.S. Peter and Paul, 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.

The Appellate Division majority properly concluded that no triable issue of fact exists whether defendant Herkimer County Industrial Development Agency (HCIDA) was an owner within the contemplation of Labor Law § 241 (6). In cases imposing liability on a property owner who did not contract for the work performed on the property, this Court has required “some nexus between the owner and the worker, whether by a lease agreement or grant of an easement, or other property interest” (Abbatiello v Lancaster Studio Assoc., 3 NY3d 46, 51 [2004]). Here, although the accident occurred on HCIDA’s property, HCIDA did not contract with the Village of Frankfort to have the sewer lateral installed, it had no choice but to allow the Village to enter its property pursuant to a right-of-way, and it did not grant the Village an easement or other property interest creating the right-of-way.

Likewise, the Appellate Division correctly concluded that no triable issue of fact exists whether defendant Our Lady Queen of Apostles Church of St. Mary of Mount Carmel/S.S. Peter and Paul (the Church) was an owner under Labor Law § 241 (6). Courts have held that the term “owner” is not limited to the titleholder of the property where the accident occurred and encompasses a person “who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for his [or her] benefit” (Copertino v Ward, 100 AD2d 565, 566 [2d Dept 1984]; see also Reisch v Amadori Constr. Co., 273 AD2d 855, 856 [4th Dept 2000]). Here, although the Church agreed to pay for the cost of materials, the Church had no interest in the property over which the sewer lateral was placed. Notably, municipal employees working at the site testified that no representative from the Church was present at, or gave directions during, the excavation work. Moreover, the testimony adduced indicated that the Village assumed full responsibility for installing the lateral sewer line and acknowledged that the lateral would be available for use by future property owners in the area who wished to connect to the village sewer system.

Finally, the Appellate Division majority properly concluded that no triable issue of fact exists whether the Church was in a position to control the sewer lateral installation process or to insist that proper safety practices were followed under Labor Law § 200 (see generally Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877-878 [1993]).

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

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


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

text:
    [921 NE2d 582, 893 NYS2d 815]
    The People of the State of New York, Appellant, v Everton D. Simms, Respondent.
    Argued October 15, 2009;
    decided December 1, 2009

      APPEARANCES OF COUNSEL

      Charles J. Hynes, District Attorney, Brooklyn {Lori Glickman and Leonard Joblove of counsel), for appellant.

      Warren S. Landau, New York City, and Lynn W.L. Fahey for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

After deliberating about Ax!% hours, the jury in this case rendered its verdict, finding defendant Everton D. Simms guilty of two counts of first-degree robbery (Penal Law § 160.15 [4]). At defense counsel’s behest, the jurors were asked by the court clerk to declare individually whether the guilty verdict announced through the foreperson was their verdict in all respects. The first nine jurors answered “Yes,” while juror number 10 replied, “Well, it is my verdict, although I feel like I was pressured to make that decision.” As the clerk moved on with the poll, juror number 10 volunteered, “It is my verdict.” The trial judge then interjected, “That is your verdict; is that correct?” and juror number 10 replied, “Yes.”

Once the jury poll was completed, with the remaining two jurors answering “Yes,” defense counsel sought a conference, which took place in the private walkway behind the courtroom. He moved for a mistrial on the basis of what juror number 10 said. The trial judge replied that he would ask juror number 10, outside the presence of the other jurors, “what. . . she mean[t] by pressure, was there pressure inside the [jury] room or outside the [jury] room.” Defense counsel wanted juror number 10 pushed to explain why she felt pressured because otherwise “we [would] still know no more than what we know right now.” The judge rejected this notion, explaining that he would not “invade the sanctity of the jury deliberation process,” and “[t]hat is the whole system, that we don’t know what goes on in [the jury room].”

Upon returning to the courtroom, the trial judge sent all of the jurors except juror number 10 back to the jury room. He then told juror number 10 that he “understood], in summary,” that she had said “two things . . . [o]n one hand you said that is your verdict, and you also said you were pressured, is that a fair summary?” Juror number 10 agreed that it was. The judge then asked her what she “mean[t] by the word pressure in this context.” Juror number 10 replied, “Well, I believe that it was pure chaos in there. Everyone was speaking at the same time.”

The trial judge then cautioned juror number 10 that he had “conflicting duties,” one of which was “to preserve the sanctity of the jury deliberation^].’’ As a result, he “really [felt] restricted,” could not “go into that [jury] room, intellectually,” and was “really hesitant to cross that boundary.” Juror number 10 acknowledged that she understood, and the judge continued the inquiry:

“the court: Thank you.
“So I return to you and I simply ask you if you can tell me what did you mean by the word pressure in this context?
“juror number ten: Well, I meant pressured by the fact that everyone is standing up, yelling at me, why can’t you see it that way, why can’t you see it that way? Everyone is yelling like that. After eight hours of that you have to give in.
“the court: All right. Now I want to ask you something: When you use the word pressure, based on what you’re saying, I understand you to mean what occurred inside the jury room, am I correct?
“juror number ten: Uh-huh. Yes.
“the court: Thank you. You in no manner mean anything that happened outside the jury room; is that correct?
“juror number ten: That’s correct.
“the court: It had nothing to do with having to go home to attend to personal obligations?
“juror number ten: No.
“the court: It had nothing to do with going to employment or attending] to employment obligations?
“juror number ten: No, it has nothing to do with it.
“the court: So if there was any pressure, it was pressure that was exerted inside the jury room; is that correct?
“juror number ten: Uh-huh. Yes.”

After juror number 10 was excused from the courtroom, defense counsel again sought a mistrial, arguing that this juror “simply gave in without believing in the defendant’s guilt, but gave in after being badgered for eight hours. Those were her words. She had no other choice but to give in.” Counsel added that juror number 10’s statements that she “felt pressured” and “had to give in” were “not her finding [defendant] guilty. That is her giving in. That is not 12 people unanimously finding [defendant] guilty.” The prosecutor countered that juror number 10 “made it perfectly clear that the pressure she felt was inside the jury room,” and “she said three times it was her verdict.”

The trial judge subsequently directed the full jury to be brought back into the courtroom, and accepted the guilty verdict. After the jury was dismissed, defense counsel renewed his motion for a mistrial, pointing out that juror number 10 “never said she believed in [defendant’s] guilt,” and instead “indicated that she felt pressured and gave in and simply acquiesced to others.” Before sentencing, defense counsel moved pursuant to CPL 330.30 to set aside the verdict. He argued that juror number 10 never unequivocally assented to the verdict, and the court’s questioning failed to establish its voluntariness.

The trial judge denied the motion, determining that, pursuant to CPL 330.30 (1), he did not possess jurisdiction to set aside the verdict because defendant had not preserved his claim for appellate review (2006 NY Slip Op 30598[U]). The judge opined that, in any event, the claim lacked merit because he had followed the procedure set out in People v Pickett (61 NY2d 773 [1984]) for conducting an inquiry under the circumstances presented. The trial judge subsequently sentenced defendant to concurrent terms of imprisonment of nine years, plus five years of postrelease supervision.

When defendant appealed his judgment of conviction and sentence, the Appellate Division, with one Justice dissenting, reversed on the law and ordered a new trial on the ground that the trial judge’s inquiry did not establish that juror number 10 agreed with the verdict. A Judge of this Court subsequently granted the People leave to appeal. We now conclude that defendant’s claim was preserved, and affirm the Appellate Division’s order.

CPL 310.80 provides that when jurors are individually polled, if any juror answers that the verdict is not his, the court must refuse to accept the verdict and direct the jury to resume deliberations. Where no disagreement is expressed, the verdict must be accepted and the jury discharged. Here, juror number 10’s response—“[w]ell it is my verdict, although I feel like I was pressured to make that decision”—was unsure enough to require the trial judge to inquire further, as he did (see People v Mercado, 91 NY2d 960, 963 [1998] [“(e)ven in the absence of an outright negative declaration, a juror’s response during polling may engender doubts about a full verdict and we have recognized the responsibility of a court to resolve any uncertainties”]).

While the trial judge established that there was no pressure exerted on juror number 10 emanating from outside the jury room, he did not clear up whether there was “duress [arising] out of matters extraneous to the jury’s deliberations or not properly within their scope, although perhaps occurring within the jury room” (Pickett, 61 NY2d at 775). Trial judges may not “violat[e] the secrecy of the jury deliberations” (id. at 774), but they must insure that a verdict is not the product of actual or threatened physical harm. Further, the trial judge never dispelled the ambiguity created by juror number 10’s multiple responses during the jury poll by simply asking her, for example, whether she found defendant guilty beyond a reasonable doubt based on the evidence.

Smith, J. (concurring).

I agree that juror number ten’s equivocal response to the question “[I]s that your verdict?” called for further inquiry, but I think the juror’s answer to that inquiry was enough to resolve the problem. The juror made clear that what she meant by “pressure” was no more than vigorous argument: “[E]veryone is standing up, yelling at me, why can’t you see it that way, why can’t you see it that way?” It is obvious to me that this juror was not coerced—certainly not in the sense of being subjected to a threat of “physical harm” (majority mem at 871)—but simply decided to give in to the strongly-expressed views of her fellow jurors. That is not enough to taint a verdict.

I cannot endorse the majority’s suggestion that the juror should have been asked: “Did you find the defendant guilty beyond a reasonable doubt based on the evidence?” Admittedly, this is only a small step beyond the traditional question “[I]s that your verdict?”—a question to which the juror answered yes several times—but I would not take that step. It is an inquiry into the operation of the juror’s mind, and if the juror did not confine herself to a yes or no answer it might well elicit information better kept private.

Nevertheless, I concur in the result reached by the majority, because Supreme Court erred (as the People acknowledge) in forbidding attorney-client communications during a weekend break. I am satisfied that defendant adequately preserved this error.

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

Order affirmed in a memorandum.


author: Memorandum. Chief Judge Lippman. (concurring).

text:
    [921 NE2d 585, 893 NYS2d 818]
    Zelinda Antoinette Dinardo, Respondent, v City of New York, Defendant, and Board of Education of the City of New York, Appellant.
    Argued October 15, 2009;
    decided December 1, 2009

      APPEARANCES OF COUNSEL

      Michael A. Cardozo, Corporation Counsel, New York City (Marta Ross and Edward F.X. Hart of counsel), for appellant.

      Clark, Gagliardi & Miller, P.C., White Plains (Henry G. Miller and John S. Rand of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the complaint dismissed.

Plaintiff Zelinda Dinardo, a special education teacher at a New York City public school, was injured when she tried to restrain one student from attacking another. The student had been verbally and physically aggressive for several months, and plaintiff had repeatedly expressed concerns to her supervisors about her safety in the classroom. The school’s supervisor of special education and the principal had both told her that “things were being worked on, things were happening” and urged her to “hang in there because something was being done” to have the student removed. Following her injury, plaintiff commenced this action alleging, among other things, that by these assurances the Board of Education of the City of New York had assumed an affirmative duty to take action with respect to the removal of the student and that she justifiably relied upon those assurances. When the student was not removed in a timely fashion, plaintiff alleges, the altercation which led to her injury resulted.

At trial, at the close of plaintiffs proof, the Board of Education moved for judgment as a matter of law pursuant to CPLR 4401. Following a jury verdict in Dinardo’s favor, the Board of Education moved to set aside the verdict under CPLR 4404 (a). Supreme Court denied both motions. The Appellate Division affirmed the trial court’s judgment awarding Dinardo damages. Two Justices dissented on a question of law, and the Board of Education appeals as of right under CPLR 5601 (a).

The Board of Education now argues that the conduct alleged to have constituted a promise to act on her behalf was discretionary government action, which cannot be a basis for liability (see McLean v City of New York, 12 NY3d 194, 202-203 [2009]; Tango v Tulevech, 61 NY2d 34, 40-41 [1983]). We have no occasion to decide that question because, even assuming the school officials’ actions in this case were ministerial, there is no rational process by which a jury could have found liability.

In negligence cases premised on a special relationship between municipality and plaintiff,

“the injured party’s reliance is as critical ... as is the municipality’s voluntary affirmative undertaking of a duty to act. . . . Indeed, at the heart of most of these ‘special duty’ cases is the unfairness that the courts have perceived in precluding recovery when a municipality’s voluntary undertaking has lulled the injured party into a false sense of security and has thereby induced [her] either to relax [her] own vigilance or to forego other available avenues of protection” (Cuffy v City of New York, 69 NY2d 255, 261 [1987]).

The assurance by the municipal defendant must be definite enough to generate justifiable reliance by the plaintiff.

Affording Dinardo every inference that may properly be drawn from the evidence presented and considering the evidence in a light most favorable to her {see Szczerbiak v Pilot, 90 NY2d 553, 556 [1997]), we conclude that there is no rational process by which the jury could have reached a finding that plaintiff justifiably relied on assurances by the Board of Education. The vaguely worded statements by Dinardo’s supervisor and principal that “something” was being done to have the student removed, without any indication of when, or if, such relief would come, do not, as a matter of law, constitute an action that would lull a plaintiff into a false sense of security or otherwise generate justifiable reliance. Indeed, plaintiff was aware that the administrative process for determining whether a student should transfer to a different program or school could take up to 60 days and was still ongoing when the incident occurred. There was therefore no “special relationship” between the Board of Education and plaintiff (see Cuffy, 69 NY2d at 259), upon which a cause of action for negligence could be based, and the Board of Education is entitled to judgment as a matter of law.

Chief Judge Lippman. (concurring).

I disagree with the majority’s conclusion that a rational jury could not have found that a special relationship existed between plaintiff and defendant Board. For several months prior to the incident giving rise to this action, the student exhibited increasing behavioral problems, including bringing a knife to school, which resulted in a week’s suspension. Concerned about the student’s behavior and the classroom safety risks it presented, plaintiff and her supervisor submitted to the Board’s Committee on Special Education a written recommendation to remove the student from plaintiffs classroom and place him in a learning environment better equipped to his highly problematic conduct. The recommendation was supported by notes that plaintiff had kept regarding the student’s behavior. These notes disclose that the subject student frequently punched, kicked and threw various items at his classmates. He also threatened to kill plaintiff, another teacher, and his fellow classmates on numerous occasions.

While the transfer request was pending, plaintiff repeatedly told her supervisors that she was concerned about the safety of her classroom and “didn’t know how much longer [she could] hang in there.” She testified, “it was getting more and more impossible to conduct the class ... I wanted to quit. I couldn’t go on anymore ... It was getting unsafe, and I was concerned about safety in the classroom, and ... I did not want to return.” In response, her supervisors told her to “hang in there” because “something was being done” and “things were happening.”

Viewing the evidence, as we must at this juncture, in the light most favorable to plaintiff (see Szczerbiak v Pilot, 90 NY2d 553, 556 [1997]), I think the jury could have rationally concluded that a special relationship existed between the plaintiff and defendant Board. Although the transfer request was still outstanding when plaintiff was injured, the supervisors’ repeated assurances that “things were happening” and “something was being done” suggested an impending solution to the dangerous situation. It would not be unreasonable for the jury to infer that plaintiff, in justifiable reliance on these assurances, chose to remain in the classroom and continue teaching rather than quitting as she had threatened. It should be stressed that the stark choice facing plaintiff was whether she should resign and abandon her class or continue to teach in a situation which was by any reasonable measure dangerous. In electing to follow the latter, socially desirable course, plaintiff relied upon the municipality’s assurances that the situation would soon be rectified. Indeed, the evidence, properly viewed, practically compels the conclusion that the assurances made to plaintiff induced her to “relax [her] own vigilance or . . . forego other available avenues of protection” (Cuffy v City of New York, 69 NY2d 255, 261 [1987]), and thus sufficed to establish the special relationship upon which recovery is conditioned.

Nevertheless, I concur in the majority’s result on constraint of McLean v City of New York (12 NY3d 194 [2009]). In McLean, this Court held that government action, if discretionary, may never form the basis for tort liability, even if a special relationship exists between the plaintiff and the municipality. According to McLean, the special relationship exception only applies where the challenged municipal action is ministerial (see id. at 203). In reaching this conclusion, the Court relied on Tango v Tulevech (61 NY2d 34, 40 [1983]) and Lauer v City of New York (95 NY2d 95, 99-100 [2000]). But, in those cases, the Court never expressly considered whether the special relationship exception applied to discretionary governmental acts. Even if Tango and Lauer can arguably be read to imply that the special relationship exception does not apply to discretionary acts, that interpretation was flatly rejected in Pelaez v Seide (2 NY3d 186 [2004]), decided after Tango and Lauer, but prior to McLean. In Pelaez, this Court explicitly held that a “narrow exception” to the general discretionary immunity rule exists when a plaintiff establishes a special relationship with the municipality (2 NY3d at 193). One year later, in Kovit v Estate of Hallums, we recognized that the police officer was exercising his discretion and that in order “[t]o hold the City liable for the negligent performance of a discretionary act, a plaintiff must establish a special relationship with the municipality” (4 NY3d 499, 506 [2005]). I can discern no convincing rationale for the Court’s disregard of this relevant binding precedent, which so unreasonably narrows— indeed effectively eliminates—the special relationship exception.

Although I agree that liability should not generally attach when a municipal employee is exercising his or her reasoned judgment, the broad immunity recognized for discretionary acts should not extend to situations where a special relationship is present. The touchstone of the special duty rule is that the government, by its undertaking to the specific plaintiff, has gone above and beyond the general duty it owes to the public and created a unique relationship with that plaintiff, upon which he or she is entitled to rely. This is entirely consistent with the general tort principle that a defendant should be held liable for the breach of a duty it voluntarily assumed (see Moch Co. v Rensselaer Water Co., 247 NY 160, 167 [1928]).

Whether the municipality’s act is characterized as ministerial or discretionary should not be, and never has been, determinative in special duty cases. Indeed, in Cuffy, a seminal case in the special duty context, the plaintiffs alleged that the police had a special duty to protect them based on a police officer’s promise that an arrest would be made or some other protective action would be taken regarding an ongoing dispute between plaintiffs and their neighbors (69 NY2d at 259). Although noting that the provision of police protection is within the reasoned judgment of officials and therefore necessarily discretionary in nature, we recognized that an exception to the discretionary immunity rule exists when a special relationship exists between the municipality and plaintiff (see id. at 260; see also Kircher v City of Jamestown, 74 NY2d 251, 255-256 [1989]; De Long v County of Erie, 60 NY2d 296, 305 [1983]). Unfortunately, under the rule announced in McLean, a plaintiff will never be able to recover for the failure to provide adequate police protection, even when the police voluntarily and affirmatively promised to act on that specific plaintiffs behalf and he or she justifiably relied on that promise to his or her detriment. This is particularly disturbing given our recognition that the “police cases ... all but occupy the special relationship field” (Pelaez, 2 NY3d at 205).

The rule in McLean, which clearly extends beyond police protection and applies to all discretionary governmental actions, allows public officials to unjustifiably hide behind the shield of discretionary immunity even when their actions have induced a plaintiff to change his or her behavior in the face of a known threat. Because almost any governmental act may be characterized as discretionary (see Tango, 61 NY2d at 41, citing Prosser, Torts § 132, at 990 [4th ed]), McLean too broadly insulates government agencies from being held accountable to injured parties.

The determination here as to whether and when to transfer a potentially dangerous student is undoubtedly within the discretion of the Board and thus may not subject the Board to liability given the recent holding in McLean. Accordingly, I reluctantly concur with the majority that the order of the Appellate Division should be reversed and the complaint dismissed.

Judges Graffeo, Read, Smith, Pigott and Jones concur in memorandum; Chief Judge Lippman concurs in result in an opinion; Judge Ciparick concurs in result, stating: The majority does not decide whether this is ministerial or discretionary. I think it was discretionary and therefore, under our recent decision in McLean v City of New York (12 NY3d 194 [2009]), must concur, but if I were to go to the issue of special relationship, as the majority does, I would disagree for the reasons stated in the concurrence of the Chief Judge.

Order reversed, etc.


text:
    Cesar Alvarado, Respondent, v Giovanni Culotta, Appellant, et al., Defendants.
    Submitted October 13, 2009;
    decided December 1, 2009
    Reported below, 65 AD3d 504.
   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:
    Bovis Lend Lease LMB Inc. et al., Appellants, v Garito Contracting, Inc., et al., Respondents.
    Decided December 1, 2009
    Reported below, 65 AD3d 872.
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Donovan C. Administration for Children’s Services, Respondent; Kenneth C., Respondent; Delanda R., Appellant. (And Another Proceeding.)
    Submitted October 13, 2009;
    decided December 1, 2009
    Reported below, 65 AD3d 1041.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceedings within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Helmsley-Spear, Inc., et al., Respondents, v Michael Fishman, as President of SEIU, et al., Appellants.
    Submitted October 5, 2009;
    decided December 1, 2009
    Reported below, 57 AD3d 455.
   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 Kaitlynn I., a Child Alleged to be Abused and Neglected. Administration for Children’s Services, Respondent; Jennifer I., Also Known as Jennifer M., Appellant, et al., Respondent. (And Another Proceeding.)
    Submitted September 21, 2009;
    decided December 1, 2009
    Reported below, 64 AD3d 654.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceedings within the meaning of the Constitution.


text:
    In the Matter of the Claim of Deoines Monroe, Appellant. Commissioner of Labor, Respondent.
    Submitted October 19, 2009;
    decided December 1, 2009
    Reported below, 59 AD3d 836.
   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:
    Judith Nostrom, Individually and as Personal Representative of the Estate of Donald Nostrom, Deceased, Appellant, v A.W Chesterton Company et al., Defendants, and Central Hudson Gas & Electric Corporation et al., Respondents.
    Submitted October 5, 2009;
    decided December 1, 2009
    Reported below, 59 AD3d 159.
   Motion, insofar as it seeks leave to appeal against defendant Consolidated Edison Company of New York, Inc., dismissed upon the ground that as to that party the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise granted.

Chief Judge Lippman and Judge Read taking no part.


text:
    Marie Sander, Appellant, v Arnold S. Kronick, Respondent. Marie Sander, Appellant, v Greenspan & Greenspan et al., Respondents.
    Submitted October 13, 2009;
    decided December 1, 2009
    Reported below, 2009 NY Slip Op 77297(U).
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the actions within the meaning of the Constitution.


text:
    In the Matter of the Claim of Xiao Qing Liu, Appellant, v Richline Group/Bel-Oro et al., Respondents. Workers’ Compensation Board, Respondent.
    Submitted October 5, 2009;
    decided December 1, 2009
    Reported below, 2009 NY Slip Op 81679(U).
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    [921 NE2d 598, 893 NYS2d 831]
    The People of the State of New York, Respondent, v Ramon Ramos, Appellant.
    Decided December 15, 2009
    APPEARANCES OF COUNSEL

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

      Ramon Ramos, appellant pro se.

      Richard A. Brown, District Attorney, Kew Gardens (Rebecca Height of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The prosecution was not barred by the five-year statute of limitations pursuant to CPL 30.10 (2) (b). Although the indictment was nearly 10 years after the incident, defendant’s whereabouts were “continuously unknown and continuously unascertainable,” despite the reasonable diligence of the detectives assigned to the case, until his DNA profile from the rape kit taken from the victim was matched to DNA evidence taken from defendant pursuant to a subsequent incarceration (CPL 30.10 [4] [a] [ii]; see also Executive Law § 995 [7]; § 995-c [3]; People v Seda, 93 NY2d 307, 311 [1999]; People v Brown, 13 NY3d 332 [2009]).

Defendant’s contentions that the extension of the statute of limitations in this case constituted an ex post facto law and that his sentencing as a persistent felony offender violated his right to due process of law are not preserved for review. Defendant’s remaining arguments lack merit.

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

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


text:
    [921 NE2d 592, 893 NYS2d 825]
    In the Matter of West Harlem Business Group, Respondent, v Empire State Development Corporation, Appellant.
    Argued November 17, 2009;
    decided December 15, 2009

      APPEARANCES OF COUNSEL

      Carter Ledyard & Milbum LLP, New York City {John R. Casolaro, Joseph M. Ryan, Susan B. Kalib and Ethan I. Strell of counsel), for appellant.

      Norman H. Siegel, New York City, McLaughlin & Stern, LLP {Steven J. Hyman of counsel), and Philip R. Van Burén for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be affirmed, with costs.

Petitioner West Harlem Business Group (WHBG), an unincorporated association of businesses, made several requests under article 6 of the Public Officers Law, commonly referred to as the Freedom of Information Law (FOIL), relative to Columbia University’s construction of a new 17-acre campus in West Harlem.

Only the third demand of the second FOIL request—which seeks certain documents from November 1, 2005 through June 15, 2006 relating to a July 2004 agreement between Columbia and respondent Empire State Development Corporation (ESDC)—is at issue here. ESDC refused to disclose any documents responsive to that demand, relying on the exemption set forth in Public Officers Law § 87 (2) (c) (i.e., disclosure “would impair present or imminent contract awards of collective bargaining negotiations”). On administrative appeal within its own agency, ESDC affirmed that determination, relying upon the same exemption.

WHBG then commenced this CPLR article 78 proceeding asserting, among other things, that ESDC failed to articulate a particularized and specific justification for withholding the requested documents. ESDC moved to dismiss the petition claiming that it had fully complied with its obligations under FOIL and submitting a privilege log asserting that the documents were exempt either as intra- or inter-agency material or privileged attorney-client communications.

Supreme Court ordered an in camera review of all documents withheld by ESDC. In providing the documents to the court, however, ESDC failed to identify which documents fell within each particular exemption, asserting only that the documents were either nonresponsive, exempt intra- or inter-agency office records, or had been previously disclosed. Following its review of the documentation, and ESDC’s concession that the previously submitted privilege log failed to address all the documents, Supreme Court created its own document log, divided the documents into Sections I through V, and then ordered disclosure of all those documents.

At issue on this appeal are five so-called “Section II” documents, identified by Supreme Court as “documents that are not intra or inter-agency and/or were disclosed to unidentified persons or non-agency individuals.”* (2007 NY Slip Op 34369[U], 4.) The Appellate Division, as relevant to this appeal, affirmed that portion of Supreme Court’s order and we now affirm.

At the outset, we note that this litigation could have been avoided, or significantly limited, had ESDC in the first instance complied with the dictates of FOIL. Its records access officer, upon receipt of the FOIL request, was duty-bound to conduct a “diligent search” of the records in its possession responsive to the request (see NY Dept of State, Comm on Open Govt, FOIL Advisory Op No. 4481 [1987]) and to state, in writing, the reason for the denial of access (see 21 NYCRR 1401.7 [b]). Here, the access officer relied on the statutory language of Public Officers Law § 87 (2) (c) as the basis for his denial; however, ES-DC’s appeals officer merely parroted the same language in her appeal denial letter. This, without more, constituted a failure by ESDC to “fully explain in writing” to WHBG “the reasons for further denial” as required by FOIL (Public Officers Law § 89 [4] [a]; see NY Dept of State, Comm on Open Govt, FOIL Advisory Op No. 4075 [1986]). As a result, WHBG was compelled to bring suit to obtain either the documents or an explanation of ESDC’s denial, the very information it should have received during the administrative appeals process. Only then, in the context of this lawsuit, did ESDC claim that the documents sought were exempt under Public Officers Law § 87 (2) (a) and (g)—and not section 87 (2) (c) as originally claimed—evidencing that the access officer’s initial determination was superficial, at best.

Addressing the merits, the courts below had an adequate basis in the record for rejecting ESDC’s contention that the Section II documents at issue comprise exempt material under the agency exemption and/or the attorney-client privilege. As the agency relying on the applicability of those exemptions, ESDC had the burden of establishing that the Section II documents qualified as such (see Matter of Gould v New York City Police Dept., 89 NY2d 267, 275 [1996], citing Matter of Hanig v State of NY. Dept, of Motor Vehs., 79 NY2d 106, 109 [1992]). To do so, ESDC was required to “articulate particularized and specific justification” for not disclosing them (Matter of Fink v Lefkowitz, 47 NY2d 567, 571 [1979]; see Matter of Data Tree, LLC v Romaine, 9 NY3d 454, 462-463 [2007]). This it failed to do.

ESDC supported its motion to dismiss the petition with “conclusory characterizations” of the records sought which, Supreme Court was justified in finding, were insufficient to meet its burden of establishing that the documents are exempt from disclosure (Church of Scientology of N.Y. v State of New York, 46 NY2d 906, 907-908 [1979]). Had ESDC’s response been sufficient in the first instance, Supreme Court would not have been required to conduct the exhaustive review that occurred here (see Matter of Robert v LoCicero, 28 AD3d 566, 567 [2d Dept 2006]). In response to Supreme Court’s order to produce the documents for inspection, ESDC failed to submit the documentation in any semblance of order, but rather proffered the documents with the blanket caveat that they were either nonresponsive to the FOIL request, constituted intra- or inter-agency material, or had already been disclosed. None of the affidavits submitted by ESDC employees sufficiently identified the particular exemption to which the submitted records were subject, leaving that task to Supreme Court. ESDC cannot now be heard to complain that Supreme Court improperly labeled the documents in the manner it did, as it is not the function of Supreme Court to apply the exemptions for the agency. Since ESDC failed to meet its burden of proof relative to the exemptions, Supreme Court properly ordered disclosure of the documents.

ESDC’s remaining arguments relative to the Section I and Section IV documents are similarly without merit.

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

Order, insofar as appealed from, affirmed, with costs, in a memorandum.

       One Section II document—not at issue here—is an April 3, 2006 correspondence between ESDC and Allee King Rosen & Fleming, Inc. (AKRF), a consultant representing Columbia and ESDC relative to different parts of the project. The Appellate Division upheld that part of Supreme Court’s order directing disclosure of that document on the ground that ESDC’s communications with AKRF were not subject to FOIL’S agency exemption (54 AD3d 154, 166 [2008]). ESDC did not appeal that determination and, instead, disclosed to WHBG all documents that ESDC disclosed to AKRF, rendering that issue moot. We therefore do not address that issue.


text:
    David Binkley, Appellant, v State of New York, Respondent. In the Matter of David Binkley, Appellant, v New York State Department of Correctional Services, Respondent.
    Submitted September 14, 2009;
    decided December 15, 2009
    Reported below, 64 AD3d 1063.
   Motion, insofar as it seeks leave to appeal from the Appellate Division order of affirmance, denied; motion, insofar as it seeks leave to appeal from the Appellate Division order denying poor person relief, dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Terence Boddie, Appellant, v George Alexander, as Chair of the Division of Parole, Respondent.
    Decided December 15, 2009
    Reported below, 65 AD3d 1446.
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for relief ancillary to the appeal dismissed as academic.


text:
    Jeffrey Chiara, Appellant, v Town of New Castle et al., Respondents.
    Submitted October 26, 2009;
    decided December 15, 2009
    Reported below, 61 AD3d 915.
   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.