author: Graffeo, J.

text:
    [950 NE2d 85, 926 NYS2d 349]
    Roslyn Union Free School District, Appellant, v Michael Barkan et al., Defendants, and Carol Margaritis, Respondent.
    Argued March 21, 2011;
    decided May 3, 2011

      POINTS OF COUNSEL

      Farrell Fritz, P.C., Uniondale (James M. Wicks, Kathryn C. Cole and Aaron E. Zerykier of counsel), for appellant.
    I. The six-year statute of limitations is applicable to the Roslyn Union Free School District’s claims for breach of fiduciary duty, negligence and declaratory judgment. (People v Avilas, Inc., 29 AD3d 764; Whitney Holdings, Ltd. v Givotovsky, 988 F Supp 732; Bassett v Fish, 75 NY 303; Van Tassell v Hill, 285 App Div 584; Matter of East Meadow Union Free School Dist. v New York State Div. of Human Rights, 65 AD3d 1342; Jericho Water Dist. v One Call Users Council, Inc., 10 NY3d 385; Schoen v Board of Educ. of Cambridge Cent. School Dist. No. 10, 274 App Div 682; Sardanis v Sumitomo Corp., 279 AD2d 225; Weingarten v Board of Educ. of City School Dist. of City of N.Y., 3 Misc 3d 418; Toscano v Toscano, 285 AD2d 590.) II. The Roslyn Union Free School District has sufficiently stated an accounting claim

      against Carol Margaritis. (Pelkey v Pelkey, 236 App Div 55; Cruz v McAneney, 31 AD3d 54; Matter of Kummer, 93 AD2d 135; Matter of Rothko, 43 NY2d 305; Amherst Magnetic Imaging Assoc. v Community Blue, HMO of Blue Cross of W. N.Y., 239 AD2d 892.)

      Spellman Rice Schure Gibbons McDonough & Polizzi, LLP, Garden City (John P. Gibbons, Jr., and Peter S. Trentacoste of counsel), for respondent.
    I. The first cause of action in the complaint for breach of fiduciary duty was correctly dismissed as time-barred. (Nathanson v Nathanson, 20 AD3d 403; Klein v Gutman, 12 AD3d 417; Carlingford Ctr. Point Assoc. v MR Realty Assoc., 4 AD3d 179; Tatko v Sheldon Slate Prods. Co., 2 AD3d 1030; Kaufman v Cohen, 307 AD2d 113; Matter of Kaszirer v Kaszirer, 286 AD2d 598.) II. The second cause of action in the complaint for common-law negligence was correctly dismissed as time-barred. (Mauro v Niemann Agency, 303 AD2d 468.) III. The third cause of action in the complaint for a declaratory judgment was correctly dismissed. (Walsh v Andorn, 33 NY2d 503; Board of Coop. Educ. Servs., Nassau County v Goldin, 38 AD2d 267; Solnick v Whalen, 49 NY2d 224.) IV. The fourth cause of action in the complaint against Carol Margaritis for an accounting was correctly dismissed. (Chalasani v State Bank of India, N.Y. Branch, 235 AD2d 449; Matter of Kummer, 93 AD2d 135; Raymond v Brimberg, 99 AD2d 988; IMG Fragrance Brands, LLC v Houbigant, Inc., 679 F Supp 2d 395; Conroy v Cadillac Fairview Shopping Ctr. Props. [Md.], 143 AD2d 726.) V The six-year statutes of limitations set forth in CPLR 213 (5) and (7) are not applicable. (Toscano v Toscano, 285 AD2d 590; Sardanis v Sumitomo Corp., 279 AD2d 225; Rupert v Tigue, 259 AD2d 946; Whitney Holdings, Ltd. v Givotovsky, 988 F Supp 732; Westchester Religious Inst. v Kamerman, 262 AD2d 131; Spitzer v Schussel, 7 Misc 3d 171; Nathanson v Nathanson, 20 AD3d 403; State of New York v Seventh Regiment Fund, 98 NY2d 249; Woods v Rondout Val. Cent. School Dist. Bd. of Educ., 466 F3d 232.)
   OPINION OF THE COURT

Graffeo, J.

In this case, we are asked whether a three- or six-year statute of limitations applies to causes of action for negligence and breach of fiduciary duty by a school district against a former member of the school board. We hold that the six-year limitations period in CPLR 213 (7) is applicable and, therefore, this action was timely commenced.

I

In September 2002, an accounting firm hired by plaintiff Roslyn Union Free School District discovered irregularities in the district’s financial records. An audit revealed that Pamela Gluckin, the assistant superintendent for business, had stolen $223,000 from district accounts. The Roslyn Union Free School District Board of Education (the Board) was notified of Gluckin’s misconduct and it decided to allow Gluckin to repay the misappropriated funds (along with attorney’s fees and accounting costs) and retire. The Board, however, did not notify law enforcement authorities or state officials about Gluckin’s criminal activities, nor did it publicly disclose her illegal conduct.

Unfortunately, the theft by Gluckin turned out to be just one component of a long-running conspiracy to loot the school district’s coffers. After Gluckin left her post, information about additional missing funds surfaced and eventually a criminal investigation was undertaken by the Nassau County District Attorney’s Office. In June 2004, Gluckin was arrested for grand larceny in the first degree for stealing more than $1 million from the school district. The investigation also implicated the school district’s superintendent (Frank Tassone) and an account clerk (Deborah Rigano, who was Gluckin’s niece), and they too were arrested for grand larceny. An extensive forensic audit by the State Comptroller determined that, from 1998 through 2004, approximately $11 million had been misappropriated: Gluckin had stolen over $4.6 million; Tassone had taken more than $2.4 million; and Rigano had received about $300,000. In total, various sums had been tunneled to more than two dozen people.

In addition to the criminal prosecutions that emerged from these investigations, the school district initiated a lawsuit against former and current members of the Board for their allegedly lax management during the years the funds disappeared and their attempt to keep these illegal activities under wraps. The action was commenced in April 2005 under several theories of liability, including causes of action for breach of fiduciary duty and common-law negligence based on the Board’s failure to identify and prevent the ongoing thievery or take further investigatory action after Gluckin’s misappropriations were first discovered. The complaint also asserted that the Board members should have implemented internal financial control policies and procedures to ensure reliable oversight and protection of the school district’s assets.

Defendant Carol Margaritis was a member of the Board for approximately one year, beginning in 2000. Her departure from the Board occurred before Gluckin’s criminal activities came to light. There are no allegations that Margaritis knew about the ongoing illegal scheme, benefitted from the theft of the school district’s funds or received any portion of the stolen monies. Margaritis also did not participate in the Board’s decision not to reveal Gluckin’s initial thievery. Margaritis was, however, a member of the Board during a time period that funds were being stolen by school district employees.

Margaritis moved to dismiss the complaint against her, arguing that the causes of action were time-barred because the school district’s claims were subject to the three-year statute of limitations in CPLR 214 (4) and the complaint was filed more than three years after she ceased being a school board member. The school district countered that CPLR 213 (7) provided a six-year statute of limitations since the school district is, by definition, a municipal corporation that may sue a former board member to recover damages. Supreme Court agreed with Margaritis and dismissed the claims against her (2008 NY Slip Op 33625[U]). The Appellate Division affirmed, reasoning that the three-year period set forth in CPLR 214 (4) was applicable (71 AD3d 660 [2d Dept 2010]). We granted leave to appeal (15 NY3d 702 [2010]) and now conclude that the causes of action for breach of fiduciary duty, negligence and declaratory judgment should be reinstated as timely.

II

This is an unusual case because it is rare for school districts to engage in litigation against the individuals who voluntarily seek election to serve on school boards. Such public service is commendable and a vital component of our State’s legal and moral duty to educate its children. The filing of a lawsuit by a school district against the members of its school board is certainly a disincentive for attracting qualified candidates to perform this important civic function. Here, apparently, the school district responded to a particularly egregious set of facts involving severe financial mismanagement—over $11 million was stolen from taxpayers in a criminal conspiracy operated by two high-ranking school district employees and certain members of the Board were allegedly complicit because they may have breached the duties that were entrusted to them to protect the school district’s assets. The question before us is not whether any Board members bear a degree of responsibility for these losses, but whether the case against defendant Margaritis was timely filed.

Causes of action that seek monetary damages for injury to property are generally subject to a three-year statute of limitations (see CPLR 214 [4]; IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 139 [2009]). But CPLR 213 (7) extends the limitations period to six years for “an action by or on behalf of a corporation against a present or former . . . officer ... to recover damages for waste or for an injury to property or for an accounting in conjunction therewith.” If the specific language of CPLR 213 (7) encompasses a particular claim, it supplants the general three-year rule of CPLR 214 (4). The issue here then distills to whether a school district is a “corporation” within the meaning of CPLR 213 (7), thereby providing a six-year statute of limitations for covered claims. We hold that it is.

We begin our analysis with the General Construction Law, which supplies the definitions of certain statutory terms used to interpret the language and purpose of a statute (see General Construction Law § 110). This Court has previously relied on the General Construction Law when considering the applicability of a statute of limitations (see Western Elec. Co. v Brenner, 41 NY2d 291, 293 [1977]; Empire Trust Co. v Heinze, 242 NY 475, 478-479 [1926]) and we again find it appropriate to do so.

General Construction Law § 65 (a) (1) defines the term “corporation” as referring to, among other entities, a “public corporation.” A “public corporation,” in turn, includes a “municipal corporation” under General Construction Law § 65 (b) (1) and § 66 (1). And the term “municipal corporation,” as defined in General Construction Law § 66 (2), expressly embraces a “school district.” Because a school district is both a municipal corporation and a public corporation, it falls within the ambit of the term “corporation” in CPLR 213 (7).

Other provisions of state law recognize that school districts are corporations. The State Constitution, for example, describes a school district as a “public corporation” (NY Const, art X, § 5)—terminology identical to that appearing in General Construction Law § 65 (a) (1). Education Law § 1701 similarly denotes that the board of a union free school district is a “body corporate.” Other statutes also refer to school districts as municipal corporations (see General Municipal Law § 119-n [a]; Public Officers Law § 10; RPTL 102 [10]). Furthermore, we have long observed that school districts are inherently corporate in nature (see e.g. Greater Poughkeepsie Lib. Dist. v Town of Poughkeepsie, 81 NY2d 574, 580-581 [1993]; Bassett v Fish, 75 NY 303, 311-312 [1878]). Utilizing a plain language analysis, school districts have been deemed corporations and, as such, they benefit from the limitations period that applies to certain corporate causes of action.

Margaritis maintains that we should reject this definitional approach because, when the Legislature intends for a statute to apply to a school district, it has used the specific term “school district” in the statutory text. Margaritis points to Education Law § 3813, which imposes certain notice of claim requirements on actions brought “against any school district.” This argument fails to appreciate the distinction between a narrowly drawn statute and a more general provision—such as CPLR 213 (7)— which was intended to apply in a myriad of different circumstances. Education Law § 3813 is a specific statute that sets forth the procedures for pursuing a claim against a school district as well as certain other educational entities. But it has no bearing on the statute of limitations governing when a school district may initiate a lawsuit. The Legislature could have enacted a statute that narrowly imposes time limitations for actions commenced by school districts against present or former board members, but it has not done so. In the absence of such a legislative directive, the appropriate limitations period must be determined by referring to the CPLR, which is general by design. Indeed, since the Legislature used the more general term, which it had defined to include “school district[s]” (General Construction Law § 66 [2]), it would have been redundant to separately list “school districts” in CPLR 213 (7), as Margaritis insists should have happened. Consequently, we cannot agree that school districts should be excluded from the purview of CPLR 213 (7).

Ill

It has been suggested that CPLR 213 (7) should not control here because that statute is restricted to equitable causes of action asserted by a corporation against its former officers or directors. This is not so. Equitable claims evoke nonmonetary relief, such as the issuance of an injunction, an accounting, or a remedy in the nature of specific performance or reformation of a contract (see Black’s Law Dictionary 33 [9th ed]). But CPLR 213 (7) applies to all “action[s],” with no differentiation between legal and equitable claims. In fact, equitable causes of action are usually subject to a six-year statute of limitations by application of the “catch-all” provision in CPLR 213 (1) (see Siegel, NY Prac § 36 [4th ed]), which suggests that there is no basis for limiting subdivision (7) to equitable claims. Furthermore, subdivision (7) employs the phrase “to recover damages”—the quintessential reference to nonequitable monetary relief. From its plain language, CPLR 213 (7) provides a corporation, such as a school district, with six years to assert both equitable and nonequitable causes of action against a former director, officer or shareholder.

The legislative history of CPLR 213 (7) further confirms that its reach covers nonequitable and equitable causes of action. The statute’s lineage can be traced back to at least the early 1800s (see 2 Rev Stat of NY, part III, ch IV, tit 2, art 4, § 44, at 300 [1st ed 1829]), the Field Code (see L 1848, ch 379, § 89; L 1849, ch 438, § 109) and the Code of Remedial Justice (see L 1876, ch 448, chap IV, tit 2, § 394; see generally Denman v McGuire, 101 NY 161, 164 [1886]; Throop, Code of Civil Procedure, at xii [1877]). The limitations period was reduced from six to three years when the Code of Civil Procedure was adopted (see L 1877, ch 416, § 1, amending Code Civ Pro § 394) and that time limit was carried over when the Civil Practice Act became law (see L 1920, ch 925, enacting Civ Prac Act § 49 [4]).

Despite the shortened statute of limitations enacted in section 49 of the Civil Practice Act, this Court decided that a six-year statute of limitations applied to causes of action to recover for an injury to corporate property caused by negligence and that a 10-year period applied to equitable claims (see Potter v Walker, 276 NY 15, 26-27 [1937]). After Potter, New York courts began to apply various limitations periods—3, 6 or 10 years (see NY Law Rev Commn, Acts, Recommendations and Study relating to the Statute of Limitations, Bill Jacket, L 1942, ch 851, at 29, 34)—depending on the theory of liability asserted, the relative culpability of the alleged wrongdoer and the nature of the corporation (see e.g. Dunlop’s Sons, Inc. v Spurr, 285 NY 333, 336 [1941]; Mencher v Richards, 283 NY 176, 182 [1940]). In fact, all three periods were examined in some cases (see e.g. Coane v American Distilling Co., 298 NY 197, 207 [1948]). Needless to say, this situation caused much confusion (see Mem of Assn of Bar of City of NY Comm on State Legislation; Letter of Assn of Bar of City of NY, Comm on Law Reform; Mem from Counsel to the Governor, Bill Jacket, L 1942, ch 851, at 14, 57, 80-82).

The Legislature responded in 1942 by enacting Civil Practice Act § 48 (8) (see L 1942, ch 851, § 1). It resurrected the six-year rule as the general statute of limitations for corporate actions against directors, officers or shareholders. Notably, the statute also abrogated the distinction between legal and equitable claims by applying the six-year period to all “legal or equitable” actions by a corporation against an officer for an accounting or fraud “or to recover a penalty or forfeiture imposed or to enforce a liability created by common law or by statute” (Civ Prac Act § 48 [8]). But actions “to recover damages for waste or for an injury to property or for an accounting in connection therewith” were excluded from the six-year limitations period—a three-year statute of limitations applied to these types of claims (see id.).

Eventually, in 1962, the Legislature eliminated this distinction, making the six-year limitations period “applicable to all actions against a director, officer, or stockholder of a corporation” (Sixth Report to the Legislature by the Senate Finance Committee relative to the Revision of the Civil Practice Act, 1962 NY Legis Doc No. 8, at 91 [emphasis added]; see Bill Jacket, L 1962, ch 308, at 552, 617; Advisory Committee Notes, NY CLS, Book 4A, Part 1, CPLR 213, at 334). This new provision was codified as CPLR 213 (8) (see L 1962, ch 308) and read as follows:

“an action by or on behalf of a corporation against a present or former director, officer or stockholder for an accounting, or to procure a judgment on the ground of fraud, or to enforce a [liability], penalty or forfeiture, or to recover damages for waste or for an injury to property or for an accounting in conjunction therewith.”

Subdivision (8) was later renumbered as subdivision (7) (see L 1975, ch 43, § 2), but its substantive language has not been altered since the CPLR took effect. Hence, since 1963, section 213 has provided a uniform six-year statute of limitations for any action by a corporation against its present or former officers, directors or stockholders, whether seeking equitable or legal relief. Because CPLR 213 (7) has remained worded in this manner for almost five decades without any substantive restructuring, there is no merit to the assertion that the statute does not cover causes of action for money damages.

IV

Based on the text of CPLR 213 (7), the applicable definitional provisions of the General Construction Law and the statute’s underlying legislative history, we conclude that a six-year statute of limitations governs claims of this nature. As a result, the causes of action in this case for breach of fiduciary duty, common-law negligence, declaratory judgment and an accounting were timely commenced against defendant Margaritis.

V

Although the complaint here was not barred by the statute of limitations, we agree with the Appellate Division that the school district’s allegations do not state a cognizable cause of action against Margaritis for an accounting. This equitable remedy is designed to require a person in possession of financial records to produce them, demonstrate how money was expended and return pilfered funds in his or her possession (see generally Ederer v Gursky, 9 NY3d 514, 525 [2007]). As we have noted, there is no allegation that Margaritis received any of the stolen monies or possessed any relevant documentary proof that the district itself has not acquired. Since the State Comptroller was able to trace countless financial transactions in order to determine how the vast bulk of the stolen monies was used and the identity of the individuals who received the funds, there appears to be no need for an accounting against this individual. On these facts, this cause of action should be dismissed.

Accordingly, the order of the Appellate Division should be modified, without costs, by reinstating the causes of action for breach of fiduciary duty, common-law negligence and declaratory judgment as against defendant Margaritis, and, as so modified, affirmed.

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

Order modified, etc.

      . Gluckin and Rigano were convicted of second-degree grand larceny and sentenced to prison terms of 3 to 9 years and 2 to 6 years, respectively. Tassone received a 4-to-12-year sentence after being convicted of grand larceny in the first degree.

      . See Office of the New York State Comptroller, Division of Local Government Services & Economic Development, Roslyn Union Free School District, Anatomy of a Scandal, Report of Examination, at 54 (2005), available at http:// www.osc.state.ny.us/localgov/audits/2005/schools/roslyn2.pdf.

      . In addition to breach of fiduciary duty and negligence, the complaint includes causes of action for declaratory judgment, accounting, unjust enrichment and constructive trust (the latter two claims have been abandoned by the school district).

      . In a separate but related action, Supreme Court, Nassau County, explained in its decision that the school district had several insurance policies that may have provided coverage for a portion of its losses (see Rosyln Union Free School Dist. v Jaspan Schlesinger Hoffman LLP, 2006 NY Slip Op 30632[U] [Sup Ct, Nassau County, July 7, 2006, Davis, J., index No. 17083/05]). Apparently, the insurers had disclaimed coverage because the Board had not timely informed them about Gluckin’s activities after her misconduct was discovered (see id.). The Board’s alleged failure to promptly notify the insurance carriers and the school district’s corresponding lost opportunity to pursue insurance claims are among the underlying liability issues in the appeal before us.

      . An “injury to property” is broadly defined as “an actionable act, whereby the estate of another is lessened, other than a personal injury, or the breach of a contract” (General Construction Law .§ 25-b). Three of the causes of action at issue here are premised on an injury to property—the loss of the school district’s funds: the claims for breach of fiduciary duty and negligence seek monetary damages as relief, and the claim for declaratory judgment is premised on the existence of a breach of fiduciary duty (see generally Solnick v Whalen, 49 NY2d 224, 229-230 [1980]). The fourth cause of action, for an accounting, is addressed in CPLR 213 (7).

      . Under Executive Law § 63-c, the Attorney General is empowered to elect to sue on behalf of a school district to recover public property that has been misappropriated. Such an action is subject to a limitations period of six years (see CPLR 213 [5]).

      . Another contention proffered by Margaritis—that school board members are not “directors” covered by CPLR 213 (7)—is refuted by General Construction Law § 66 (15), which defines the term “director” to include “any member of the governing board of such corporation, whether designated as director, trustee, manager, governor, or by any other title, designated to manage the affairs of a corporation.” A member of a school board is necessarily a member of the governing board of the school district, the entity responsible for managing the district.

      . The statute was amended to correct a typographical error before the effective date of the CPLR (see L 1963, ch 532, § 5).

      . Because we find the claims timely under CPLR 213 (7), it is unnecessary for us to address the school district’s alternative argument premised on CPLR 213 (5).


source: Caselaw Access Project

author: Smith, J. Graffeo, J. (dissenting).

license: Public Domain

text:
    [949 NE2d 964, 926 NYS2d 16]
    The People of the State of New York, Appellant, v Peter Rivera, Respondent.
    Argued March 22, 2011;
    decided May 3, 2011

      POINTS OF COUNSEL

      Janet DiFiore, District Attorney, White Plains (Hae Jin Liu, Lois Cullen Valerio and Richard Longworth Hecht of counsel), for appellant.
    A conditional license reverts back to a revoked or suspended license when driven outside of its conditions. Accordingly, the People may charge aggravated unlicensed operation of a motor vehicle when a defendant drives drunk outside the terms of the conditional license. (People v Eboli, 34 NY2d 281; People v Tousley, 86 MisC 2d 1059; People v Greco, 151 MisC 2d 859; People v Buckley, 13 Misc 3d 910; People v Sabin, 139 Misc 2d 641; People v Mattocks, 12 NY3d 326; People v Duffy, 79 NY2d 611; People v Urbaez, 10 NY3d 773; Pringle v Wolfe, 88 NY2d 426.)

      Janet A. Gandolfo, Sleepy Hollow, for respondent.
    I. The only charge available to the People pursuant to the facts herein is a violation of Vehicle and Traffic Law § 1196 (7) (f). (People v Tousley, 86 Misc 2d 1059; People v Greco, 151 Misc 2d 859.) II. Evidence presented to the grand jury was insufficient to show that defendant was driving out of conditions of conditional license. III. The People’s argument—that it is within their discretionary authority to choose whether to prosecute under section 1196 of the Vehicle and Traffic Law or section 511 of the Vehicle and Traffic Law—is misplaced. (People v Mattocks, 12 NY3d 326; People v Eboli, 34 NY2d 281.)
   OPINION OF THE COURT

Smith, J.

We hold that a driver whose license has been revoked, but who has received a conditional license and failed to comply with its conditions, may be prosecuted only for the traffic infraction of driving for a use not authorized by his license, not for the crime of driving while his license is revoked.

I

On November 14, 2007, defendant was convicted of driving while intoxicated. The conviction carried with it the revocation of his license for a minimum of six months (Vehicle and Traffic Law § 1192 [2]; § 1193 [2] [b] [2]). However, as a first-time offender, defendant was eligible to participate in a rehabilitation program offered by the Department of Motor Vehicles (see Vehicle and Traffic Law § 1196) and, as a participant in the program, to receive a conditional license (Vehicle and Traffic Law § 1196 [7] [a]). Defendant entered the program and received a conditional license, which permitted him to drive to and from his place of work; as required by his job; to and from the rehabilitation program and related activities; to and from a school; and between noon and 3:00 p.m. on Saturdays.

On February 10, 2008, while his conditional license was in effect, defendant was arrested for driving while intoxicated at 1:04 a.m. He was with a woman he identified as his girlfriend, and told the arresting officer he was coming from “the bars.” He was indicted for several offenses, but the only count of the indictment that now concerns us charged him with aggravated unlicensed operation of a motor vehicle in the first degree (Vehicle and Traffic Law § 511 [3]). On defendant’s motion, Supreme Court dismissed this count before trial, and the Appellate Division affirmed (71 AD3d 700 [2010]). A Judge of this Court granted the People leave to appeal (15 NY3d 756 [2010]), and we now affirm.

II

At issue is the relationship between two offenses defined in separate sections of the Vehicle and Traffic Law. Defendant’s alleged conduct clearly violated Vehicle and Traffic Law § 1196 (7) (f), which says: “It shall be a traffic infraction for the holder of a conditional license ... to operate a motor vehicle upon a public highway for any use other than those authorized.” A violation of section 1196 (7) (f) is punishable by a fine of up to $500, not more than 15 days of imprisonment and revocation of the conditional license.

The People argue, however, that defendant also violated Vehicle and Traffic Law § 511, which prohibits “aggravated unlicensed operation of a motor vehicle.” That crime is committed when a person “operates a motor vehicle upon a public highway while knowing or having reason to know that such person’s license or privilege of operating such motor vehicle . . . is . . . revoked” (Vehicle and Traffic Law § 511 [1] [a]). Simply driving with a revoked license constitutes third degree aggravated unlicensed operation, a misdemeanor punishable by a fine, a jail term of up to 30 days, or both (id.). Doing so when the license was revoked for driving while intoxicated is second degree aggravated unlicensed operation, a more serious misdemeanor that can bring a jail term of up to 180 days (Vehicle and Traffic Law § 511 [2] [a] [ii]; [b]). And committing the second degree crime while under the influence of alcohol constitutes the first degree crime, with which defendant was charged; it is a class E felony punishable by up to four years of imprisonment (Vehicle and Traffic Law § 511 [3] [a] [i]; [b]; Penal Law § 70.00 [2] [e]).

Defendant points out that, at the time in question, he had a valid, unrevoked driver’s license, though a conditional one. Thus he cannot, he says, be prosecuted for driving while his license was revoked. The People argue in substance that defendant should be viewed as having two licenses: the conditional one, good only at certain times and for certain purposes; and the revoked license, in existence at all other times. When defendant was arrested, on the People’s theory, only his revoked license existed.

Defendant’s reading of the statutory language is the more natural and straightforward one. It also finds strong support in the legislative history of Vehicle and Traffic Law § 1196 (7) (f).

Until section 1196 (7) (f) was enacted in 1989, the only Vehicle and Traffic Law provision that addressed violations of conditions stated in a driver’s license was section 509 (3): “Whenever a permit or license is required to operate a motor vehicle, no person shall operate any motor vehicle in violation of any restriction contained on, or applicable to, the permit or license.” Before 1989, a violation of section 509 (3) was a traffic infraction for which the fine could not exceed $50, and for which imprisonment for a first offense could not exceed 15 days (see former Vehicle and Traffic Law § 1800). In two pre-1989 cases, trial level courts considered whether someone in the position of defendant here—someone whose license had been revoked, who had received a conditional license as part of a rehabilitation program, and who had then violated the conditions on the license—should be prosecuted under Vehicle and Traffic Law § 509 (3) or Vehicle and Traffic Law § 511. The court in People v Tousley (86 Misc 2d 1059 [Yates County Ct 1976]) held that section 509 (3) was applicable and section 511 was not. The court in People v Sabin (139 Misc 2d 641 [Westchester County Ct 1988]) disagreed, concluding that the driver could be prosecuted under section 511.

In March 1989, a bill was introduced in the Senate at the request of the State Police that would have rejected Tousley and enacted the Sabin court’s view of the law. As introduced, it would have amended Vehicle and Traffic Law § 511 (a) to add:

“The suspension or revocation of the license or operating privilege of a person convicted of a violation of section eleven hundred ninety-two of this chapter, and who has been issued a conditional license or privilege pursuant to subdivision seven of section eleven hundred ninety-six of this chapter, shall continue to be effective any time such person operates a motor vehicle in violation of the terms of such conditional license or privilege.” (1989 NY Senate Bill S3103 § 1 [a].)

This proposal—which states the position the People advance in this case—was not adopted. It was replaced during the legislative process by a bill that left section 511 unchanged in substance and instead created a new paragraph (f) of section 1196 (7). That paragraph, quoted above, created a new and more serious traffic infraction to deal with cases like this one—an infraction resulting in a larger fine than a violation of section 509 (3), and revocation of the conditional license. A letter from the Assembly sponsor of this measure to the Governor’s Counsel described the existing law that the bill would change as being in accord with the Tousley, not the Sabin, case—in other words, with defendant’s position here, not the People’s: “a person who operates outside the terms of a conditional license granted after conviction for an alcohol-related offense is subject only to the standard traffic infraction involving a fine of up to $100 and/or 15 days in jail.” (Letter of Michael J. Bragman to Evan A. Davis, July 7, 1989, Bill Jacket, L 1989, ch 420, at 7 [emphasis added].) The letter went on to explain that the bill the Legislature enacted

“addresses the disparity by making the penalty for operating outside the terms of a conditional license subject to a fine of not less [than] $200 nor more than $500 and/or a term of imprisonment of up to 15 days. The measure also calls for the revocation of the conditional license” (id.).

In sum, the Legislature decided not to amend section 511 to make what this defendant did a crime, but instead to make it a more serious traffic infraction; and the Assembly sponsor said plainly that he thought such offenders could be prosecuted only for traffic infractions. Comments from the Department of Motor Vehicles (Bill Jacket, L 1989, ch 420, at 10-11), the Division of Criminal Justice Services (id. at 14-15) and the Division of Alcoholism and Alcohol Abuse (id. at 19) expressed a similar opinion, though the Division of Parole thought otherwise (id. at 20).

Thus the legislative history as a whole powerfully reinforces what is in any event the most plausible reading of the statutory language: Vehicle and Traffic Law § 511 does not reach cases like this one. Every court to have considered the question since Vehicle and Traffic Law § 1196 (7) (f) was enacted—the courts in People v Greco (151 Misc 2d 859 [App Term 1992]) and People v Buckley (13 Misc 3d 910 [Sullivan County Ct 2006]), and the lower courts in this case—has reached that conclusion, and so do we.

The People argue that this reading of the statute disserves our State’s strong public policy to combat drunken driving with serious penalties. They suggest that a maximum punishment of a $500 fine and 15 days in jail, coupled with revocation of the conditional license, is simply not an adequate sanction for someone who, having been given a limited right to drive after violating the law, has violated it again by ignoring the limitations. Admittedly, there is a large disparity between the punishments available under Vehicle and Traffic Law § 1196 (7) (f) for a driver who fails to meet the conditions on a conditional license and those available under Vehicle and Traffic Law § 511 for one who has only a revoked or suspended license. But that is exactly the problem that the Legislature addressed when it enacted section 1196 (7) (f). If its way of dealing with the problem was not adequate, it should be asked to take up the issue again.

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

Graffeo, J. (dissenting).

When conduct falls under two or more penal provisions, this Court has consistently held that it is within the realm of a District Attorney’s exercise of prosecutorial discretion to determine what offense to charge. Because the conduct at issue in this case—defendant’s operation of a motor vehicle at a time when he was not privileged to do so and while under the influence of alcohol—could be prosecuted either as a violation of Vehicle and Traffic Law § 1196 (7) (f) or Vehicle and Traffic Law § 511 (3) (a) (i), the People’s decision to charge the latter offense should not have been disturbed. Since, under the majority analysis, a driver like defendant who not only disregards the limitations in the conditional license but also drives drunk will receive the same penalty as a person who engages in a minor violation of the terms of a conditional license, I respectfully dissent.

In November 2007, when defendant was convicted of misdemeanor driving while intoxicated (DWI), his driver’s license was revoked for six months by the Department of Motor Vehicles (DMV). The day after the license revocation order was effective, the Department granted defendant a conditional license permitting him to drive to and from a drinking driver rehabilitation program, his employment, his classes at a local broadcasting school and during a three-hour period on Saturday afternoons. In February 2008, at 1:04 a.m., defendant was stopped by police after he drove through a red light. His slurred speech, the odor of alcohol and his performance on field sobriety tests led police to conclude he was intoxicated. Defendant admitted to police that he and his girlfriend, a passenger in the car, were coming from “the bars” nearby. After refusing to take a chemical test, defendant was charged with a variety of offenses, including aggravated unlicensed operation of a motor vehicle (AUO) in the first degree under Vehicle and Traffic Law § 511 (3) (a) (i), a class E felony. Pursuant to this provision, the People alleged that defendant’s conduct met the following three elements: (1) defendant drove under the influence of alcohol; (2) at a time when his license was suspended, revoked or withdrawn by DMV; and (3) the suspension/revocation was based on a prior DWI conviction.

Before trial, defendant moved to dismiss the AUO count, arguing that a person who drives outside the terms of a conditional license can be charged only with a traffic infraction under Vehicle and Traffic Law § 1196 (7) (f). In opposition, the People argued that although defendant’s violation of the conditional license could give rise to a traffic violation, that did not prevent them from instead charging him with AUO. Supreme Court dismissed the AUO count on the rationale that, by creating a statute that permitted defendant to be charged with a traffic infraction for violating the terms of his conditional license (see Vehicle and Traffic Law § 1196 [7] [fl), the Legislature created an exclusive penalty for such conduct. The Appellate Division affirmed on a different basis, reasoning that “[u]pon the issuance of the conditional license, the defendant’s status as a person with a revoked license was superceded by his status as a person with a conditional license,” which negated the second element of AUO (People v Rivera, 71 AD3d 700, 701 [2d Dept 2010]). A majority of this Court also now affirms the dismissal of the AUO count of the indictment.

In my view, the majority and the courts below err in precluding the People from prosecuting defendant for first-degree AUO. The threshold question—the issue the Appellate Division found to be dispositive—is whether a defendant with a conditional license continues to hold the status of a person with a revoked or suspended license, thereby satisfying the second element of the AUO offense. Defendant maintains that, once he was issued a conditional license, he" no longer could be characterized as having a revoked license. The People counter that the license revocation order remained in effect after the conditional license was issued and, when driving outside the limited, permissible conditions specified in the conditional license, defendant was operating his vehicle while his license was revoked.

This issue has been addressed in three other cases: two courts have concluded that a person who possesses a conditional license does not have the status of a person with a revoked or suspended license (see People v Buckley, 13 Misc 3d 910 [Sullivan County Ct 2006]; People v Tousley, 86 Misc 2d 1059 [Yates County Ct 1976]), and one determined that a person who drives in violation of the parameters of a conditional license is operating with a revoked or suspended license (see People v Sabin, 139 Misc 2d 641 [Westchester County Ct 1988]). Our Court has not previously been presented with this question.

Resolution of this issue requires an understanding of the history and purpose of the conditional license program. Since 1975, New York has offered an alcohol and drug rehabilitation program to individuals convicted of DWI and related offenses (see L 1975, ch 291). Upon conviction of an alcohol-related driving offense, an offender’s driver’s license is typically suspended or revoked. As an incentive to participation in the rehabilitation program, those offenders who enroll are eligible to apply for a conditional license. Vehicle and Traffic Law § 1196 (7) (a) authorizes the Commissioner of DMV to grant a program participant a conditional driver’s license “valid only for use[ ] by the holder thereof’ while driving to or from a variety of specified destinations, including program activities and the person’s school or employment. Under the statute, the license may also permit the participant to drive during a “three hour consecutive daytime period” on a day when he or she is not engaged at work or school. Of critical relevance to this case, subdivision (7) (a) further provides: “Such license or privilege shall remain in effect during the term of the suspension or revocation of the participant’s license or privilege unless earlier revoked by the commissioner.”

This language indicates that the conditional license does not supercede the suspension or revocation order but instead is coterminous with that order since the conditional license “remain[s] in effect during the term of the suspension or revocation” (emphasis added). Put another way, the suspension or revocation does not end when a conditional license is issued, otherwise there would be no “term of the suspension or revocation” for the conditional license to track.

Vehicle and Traffic Law § 1196 (5) also provides:

“upon successful completion of the [alcohol and drug rehabilitation program], a participant may apply to the commissioner ... for the termination of the suspension or revocation order issued as a result of the participant’s conviction which caused the participation in such course. In the exercise of discretion . . . the commissioner is authorized to terminate such order or orders and return the participant’s license or reinstate the privilege of operating a motor vehicle in this state.”

This clause is further evidence that the suspension or revocation continues in effect while a participant attends the drinking driver program, even if a conditional license has been issued, since, at the successful conclusion of the program, the participant must apply to the Commissioner “for termination of the suspension or revocation” when requesting restoration of full license privileges—restoration is not automatic. Rather, in order to obtain reinstatement of full license status, the participant must seek termination of the revocation or suspension—which, again, demonstrates that the revocation or suspension remains in effect, even after a conditional license has been issued.

Based on this statutory language, I disagree with the majority’s conclusion that defendant’s status as a person with a revoked license was “superceded” when the DMV issued him a conditional license. To the contrary, when the DMV revokes or suspends a person’s license for a six-month period but then provides a conditional license to a program participant, it has not vitiated the original revocation or suspension order. The conditional license merely grants its holder a limited privilege to drive for particular purposes as specified in the license. When the DMV revoked defendant’s license, it took away all his driving privileges. When it issued the conditional license the next day, it allowed a narrow range of permissible driving activities, but all remaining privileges continued to be revoked. Thus, when defendant drove outside the bounds of the limited privilege, he could not rely on the conditional license but instead had the status of a person with a revoked license. More particularly, his privilege to drive himself and a passenger home from a bar at 1:00 a.m. had not been restored; it remained revoked pursuant to the revocation order.

Several of the courts that have reached the contrary conclusion have relied on Vehicle and Traffic Law § 509 (5), which states that “[n]o person shall hold more than one unexpired license issued by the commissioner at any one time,” reasoning that if a conditional license has been issued, this is the only license defendant holds, nullifying the prior revocation or suspension. For example, in Buckley (13 Misc 3d at 913), the court determined that in order to find that a person retained the status of a person with a revoked or suspended license after a conditional license had issued, it would have to conclude “that a person may hold two licenses at the same time, a conditional license and a revoked license.” The majority similarly adopts this reasoning, suggesting that the People are essentially arguing that defendant has two licenses:, a conditional license and a revoked license.

I believe this misapprehends the People’s argument. Consistent with Vehicle and Traffic Law § 509 (5), the only license a person with a conditional license holds is the conditional license—the prior full license has been revoked. The revocation or suspension of the full license is, in fact, a condition precedent to issuance of a conditional license—and the latter is valid during the term of the revocation or suspension order. While a conditional license restores a handful of driving privileges, permitting its holder to operate a vehicle only during the limited periods and for the narrow purposes detailed in the license, most have been withdrawn. This is precisely why—when he drove outside the conditions in the conditional license during the term of the revocation order—defendant may accurately be characterized as a person who operated a motor vehicle while his “license or privilege of operating such motor vehicle in this state . . . [was] suspended, revoked or otherwise withdrawn by the commissioner” (Vehicle and Traffic Law § 511 [1] [a]). Defendant could not rely on the conditional license to privilege his conduct at that time and it therefore fell within the category of driving privileges still covered exclusively by the revocation order. Thus, the People have alleged facts that, if proved, fulfill the second element of the first-degree AUO statute.

Since defendant’s conduct fell within the purview of the AUO statute, the next issue is whether the People were precluded from charging defendant with AUO because there is another penal provision that also covered his conduct—the traffic infraction defined in Vehicle and Traffic Law § 1196 (7) (f). When a defendant engages in behavior that falls within more than one penal provision, it is generally left to the People to decide which statute to charge—and this rule holds true even if one offense is of a higher level of seriousness than the other. “[T]he existence of a statutory prohibition against a particular type of conduct . . . will not be deemed to constitute the exclusive vehicle for prosecuting that conduct unless the Legislature clearly intended such a result” (People v Mattocks, 12 NY3d 326, 333 [2009] [internal quotation marks and citations omitted]). “[Overlapping in criminal statutes, and the opportunity for prosecutorial choice they represent, is no bar to prosecution. Unless there is evidence of legislative intent to the contrary, . . . the existence of a specific statute prohibiting the conduct involved[ ] does not prevent prosecution under a more general statute” (People v Eboli, 34 NY2d 281, 287 [1974] [citations omitted]; see People v Duffy, 79 NY2d 611 [1992]).

For example, in Mattocks, we held that a defendant who defrauded the Metropolitan Transportation Authority by strategically creasing subway fare cards to facilitate their improper use for a free ride could be prosecuted for the class D offense of second-degree forgery, a provision generally criminalizing the possession or use of a false or altered written instrument. We reached this conclusion even though there were several other provisions covering the same conduct, including a class B misdemeanor offense that the Legislature had enacted in 2005 specifically addressing the use of a “doctored farecard” (see Penal Law § 165.16 [1]). We rejected the notion that, by creating a specific crime covering the fraudulent use of altered fare cards, the Legislature had evinced an intent to make that offense the exclusive vehicle of prosecution, noting the absence of a “legislative direction to eliminate the applicability of forgery statutes” (12 NY3d at 333). Although the criminal conduct at issue there was “subject to varying degrees of prosecution,” ranging from a noncriminal violation defined in a regulation to the class D felony forgery charge for which defendant had been indicted, the Court recognized that “prosecutors have considerable discretion in choosing among these classifications,” depending on the circumstances presented in the particular case, including defendant’s criminal history (id. at 334).

The same analysis should govern in this case. Vehicle and Traffic Law § 1196 (7) (f) specifically penalizes driving outside the conditions in a conditional license, making such conduct punishable as a traffic infraction. But nothing in the statutory language evinces a legislative intent for this to be the exclusive means of prosecuting that conduct, particularly in a situation like the one presented here. In this case, defendant, who obtained his conditional license by virtue of his participation in a drunk driver rehabilitation program, not only drove outside the terms of the conditional license but was also operating a motor vehicle while in an intoxicated condition—the precise illegal conduct that led to his prior conviction and enrollment in the rehabilitation program. I do not believe that the Legislature had this scenario in mind when it created the traffic infraction.

Nor is an intent to treat this type of conduct exclusively as a traffic infraction clear from the legislative history of section 1196 (7) (f). When conditional licenses were first permitted in 1975, the conditional licensing statute did not contain a penalty for driving outside the terms of the license and there was some controversy as to how to prosecute a person who operated a vehicle during unprivileged periods or for unprivileged purposes. The majority suggests that, at that time, the only Vehicle and Traffic Law statute that covered this conduct was section 509 (3), which dealt with driving in violation of a restriction on a permit or license (see majority op at 657). But this observation assumes the answer to the question that this Court is charged with deciding in this case—which is whether a person who violated the terms of a conditional license could be charged with AUO, an offense that predated the conditional licensing scheme.

In 1976, in People v Tousley (86 Misc 2d 1059 [1976]), county court considered whether a person who had violated a conditional license should be charged with the section 509 (3) traffic infraction or misdemeanor AUO. There, defendant had been charged with the traffic infraction and, analogizing a conditional license to a restricted use license, the court concluded that this was appropriate. It went on to indicate in dicta that a defendant who drove outside the terms of a conditional license could not be charged with AUO. Twelve years later, a different county court reached the opposite conclusion in People v Sabin (139 Misc 2d 641 [1988]), a case with facts similar to this case. There, a defendant was charged with first-degree AUO when she was caught driving outside the terms of her conditional license while in an intoxicated condition. Noting the significant differences between a conditional license and a restricted license, and citing the language in the conditional licensing statute that I have highlighted earlier, the Sabin court concluded that a person who drives outside the conditions of a conditional license during the term of a license revocation order is driving with a revoked license and may be prosecuted for AUO.

This was the state of the law when, in 1989, the Legislature added a new subdivision (7) (f) to Vehicle and Traffic Law § 1196, creating a specific provision covering violations of conditional licenses. The Legislature categorized the new offense as a traffic infraction but imposed a penalty more severe than the penalty for a violation of section 509, the provision the Tousley court had applied. In fact, at the time of the amendment, the penalty for violating section 1196 (7) (f) (a fine of $200 to $500 and/or up to 15 days in jail) was identical to the penalty a person convicted of third-degree AUO would receive. Although aware of the controversy concerning the applicability of the AUO statute, the Legislature did not indicate in adopting section 1196 (7) (f) that a person who violated the terms of a conditional license could be prosecuted only under that provision. There is no exclusivity language in the statute.

The majority points out that a prior version of the legislation would have amended the AUO statute to specifically declare that a person driving outside the conditions of a conditional license could be prosecuted for AUO—but the Legislature instead amended the conditional licensing statute to create a separate traffic infraction covering that conduct. From this development the majority infers that the Legislature did not intend the AUO statute to reach cases like this one (see majority op at 659).

But such an inference is unwarranted. Certainly, had the Legislature adopted the earlier version of the legislation, it would have confirmed the applicability of the AUO statute—but its failure to do so is no substitute for a clear expression of contrary intent. This Court has previously declined to place this type of significance on omitted language found in prior versions of a bill not ultimately adopted by the Legislature (see Tzolis v Wolff, 10 NY3d 100 [2008] [although Legislature did not enact prior version of bill that would have expressly permitted derivative suits on behalf of LLCs, this did not evince legislative intent to preclude such suits]). The fact that the Legislature did not amend the AUO statute to explicitly clarify that driving outside the conditions of a conditional license could constitute AUO does not establish that the Legislature intended to categorically preclude such prosecutions. If the AUO statute already encompassed that conduct (as the Sabin court had concluded, correctly in my view), then the addition of a new provision elsewhere in the statutory scheme specifically directed at conditional license violations did nothing to alter that fact. To remove a category of conduct from the purview of the AUO statute, lawmakers would have had to either amend that statute or include language in the newly enacted section 1196 (7) (f) stating that the latter was the exclusive vehicle for prosecuting such behavior. The Legislature did neither.

To be sure, we can infer from the legislative history of section 1196 (7) (f) that the Legislature intended that conduct consisting of nothing more than driving outside the limitations of a conditional license should generally be treated as a traffic infraction. Certainly, prosecution for a traffic infraction would be appropriate for an individual found operating a vehicle at 4:00 p.m. on a Saturday when the conditional license permitted operation only between the hours of noon and 3:00 p.m. No doubt the People would agree.

But nothing in the legislative history of section 1196 (7) (f) suggests that the Legislature determined that a person who engaged in that type of infraction should receive precisely the same penalty as an offender who not only drove outside the temporal conditions of his license but was also in an intoxicated state—much more egregious behavior. A conditional license is a significant privilege granted to participants in DWI rehabilitation programs. When an individual who already has a history of operating a motor vehicle while intoxicated and who is supposed to be learning responsible driving behaviors nonetheless decides to disregard the terms of a conditional license and endanger himself and others by once again driving drunk, it is reasonable for the District Attorney to conclude that the behavior invites a more serious response. Where such aggravating conduct is present, I see no evidence that the Legislature divested the People of the discretion to prosecute it as first-degree AUO, a class E felony, rather than as a traffic infraction.

Moreover, defendant’s participation in the conditional license program—a privilege that he severely abused—should not entitle him to more lenient treatment than he would have received had he engaged in the same conduct without ever having received that benefit. Yet, under the majority’s view of the statutory scheme, defendant has committed only a traffic infraction while a similarly situated driver who never received a conditional license has committed first-degree AUO. This is one “benefit” of the limited license the Legislature surely never expected to confer. Because I find the majority’s holding to be inconsistent with the statutory scheme and the policies underlying conditional licensing, I would reinstate the first-degree AUO count.

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

Order affirmed.

      . Another court has addressed the related—but distinct—issue of whether a person who is operating outside the limitations in a restricted use license is operating with a revoked or suspended license and has concluded that the restricted use license superceded the revocation or suspension (see People v Greco, 151 Misc 2d 859 [App Term 1992]).

      . The DMV in its discretion, encourages voluntary participation in the drinking driver rehabilitation program by permitting the conditional license holder to drive not only to and from the rehabilitation program but also to and from work, school and a limited number of other venues, thereby accommodating the participant’s basic transportation needs. But, that being said, the DMV may authorize operation of a motor vehicle only for the personal purposes listed in the statute. Consistent with the ongoing suspension or revocation order, a program participant cannot obtain a commercial license and may not use the conditional license for commercial purposes, such as to operate a taxicab (see Vehicle and Traffic Law § 1196 [7] [g]).


author: Memorandum.

text:
    [942 NE2d 300, 917 NYS2d 91]
    The People of the State of New York, Respondent, v Patrick R. Ashley, Appellant.
    Decided January 6, 2011

      APPEARANCES OF COUNSEL

      D.J. & J.A. Cirando, Syracuse (John A. Cirando of counsel), for appellant.

      Derek P. Champagne, District Attorney, Malone (Jennifer M. Hollis of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant’s challenge to his adjudication as a second violent felony offender and the sentence that was originally imposed is moot because County Court resentenced him as a first felony offender in a postjudgment CPL 440.20 proceeding that is not a subject of this appeal. Defendant failed to preserve his argument that the guilty plea became involuntary after he was subsequently resentenced for a prior, unrelated criminal offense. Defendant’s remaining contentions lack merit.

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

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


text:
    Robert Henry, Appellant, v Pedro L. Peguero et al., Respondents.
    Submitted November 1, 2010;
    decided January 6, 2011
   Motion for reconsideration of this Court’s September 14, 2010 dismissal order denied (see 15 NY3d 820 [2010]).


text:
    In the Matter of Justyce M. and Another, Children Alleged to be Neglected. Monroe County Department of Human Services, Respondent; Shavon E., Appellant.
    Submitted November 22, 2010;
    decided January 6, 2011
   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:
    Penguin Group (USA) Inc., Appellant, v American Buddha, Respondent.
    Submitted December 13, 2010;
    decided January 6, 2011

      See 609 F3d 30.
   Motion by Public Citizen for leave to appear amicus curiae on consideration of the certified question herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    The People of the State of New York, Respondent, v Corey Gamble, Appellant.
    Submitted December 20, 2010;
    decided January 6, 2011
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Philip George, Appellant.
    Submitted December 27, 2010;
    decided January 6, 2011
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 dismissed as untimely.

Judge Pigott taking no part.


text:
    The People of the State of New York, Respondent, v Rolando Herrera, Appellant.
    Submitted December 27, 2010;
    decided January 6, 2011
   Motion for assignment of counsel granted and Robin G. Stein-berg, Esq. and Matthew Caldwell, Esq., care of the Bronx Defenders, 860 Courtlandt Ave., Bronx, New York 10451 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Joseph Hightower, Appellant.
    Submitted January 3, 2011;
    decided January 6, 2011
   Motion for assignment of counsel granted and Steven Banks, Esq., the Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v David Holland, Appellant.
    Submitted January 3, 2011;
    decided January 6, 2011
   Motion for assignment of counsel granted and Steven Banks, Esq., the Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Padraic Keating, Appellant.
    Submitted January 3, 2011;
    decided January 6, 2011
   Motion for assignment of counsel granted and Lauren G. Klein, Esq., PO Box 2042, Nantucket, Massachusetts 02584 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent-Appellant, v Santos Quinto, Appellant-Respondent.
    Submitted December 20, 2010;
    decided January 6, 2011
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant-respondent on the appeal herein.


text:
    The People of the State of New York, Respondent, v Rafael Rodriguez, Appellant.
    Submitted December 27, 2010;
    decided January 6, 2011
   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:
    Helen Skouras, Appellant, v Victoria Hall Condominium et al., Respondents.
    Submitted October 25, 2010;
    decided January 6, 2011
   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:
    [942 NE2d 305, 917 NYS2d 95]
    Erica Y. Darrisaw, as Administratrix of the Estate of Dolores N. Schuyler, Deceased, Appellant, v Strong Memorial Hospital, a Division of University of Rochester, et al., Respondents.
    Decided January 11, 2011

      APPEARANCES OF COUNSEL

      Hite & Beaumont, P.C., Albany (John H. Beaumont of counsel), for appellant.

      Osborn, Reed & Burke, LLP, Rochester (Christian C. Casini of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed with costs. We conclude defendants demonstrated their entitlement to summary judgment on the negligence cause of action. In opposition, plaintiff failed to adduce sufficient evidence to raise a triable issue of fact on the allegations that Nurse Baldwin grabbed decedent’s arm or caused her to fall to the ground.

Additionally, we agree with the Appellate Division majority that plaintiffs negligent supervision claim is not before the court because neither the cause of action nor its underlying facts were raised in the complaint.

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:
    Victor Batshever et al., Appellants, v Jafar Jafar et al., Respondents.
    Submitted November 15, 2010;
    decided January 11, 2011
   Motion, insofar as it seeks leave to appeal from the September 2010 Appellate Division order, dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution; motion, insofar as it seeks leave to appeal from the May 2010 Appellate Division order, dismissed for failure to demonstrate timeliness as required by Rules of the Court of Appeals (22 NYCRR) § 500.22 (b) (2). Motion for poor person relief dismissed as academic.


text:
    James Brady et al., Appellants, v 450 West 31st Owners Corp., Respondent, et al., Defendants.
    Submitted December 6, 2010;
    decided January 11, 2011
   Motion for reargument of motion for leave to appeal denied with $100 costs and necessary reproduction disbursements [see 15 NY3d 710 (2010)].


text:
    Nocenzo Cusumano et al., Respondents, v City of New York, Appellant.
    Submitted November 29, 2010;
    decided January 11, 2011
   Motion for clarification denied with $100 costs and necessary reproduction disbursements [see 15 NY3d 319 (2010)].


text:
    Farrah Donald, Appellant, v State of New York, Respondent.
    (Claim No. 115414.)
    Submitted November 29, 2010;
    decided January 11, 2011
   Motion by Sydney Burch et al. for leave to file an affirmation amici curiae on the motion for leave to appeal herein granted and the affirmation is accepted as filed.


text:
    Ruchama Gamiel, Appellant, v Curtis & Reiss-Curtis, P.C., et al., Respondents. (And a Third-Party Action.)
    Submitted November 29, 2010;
    decided January 11, 2011
   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:
    Jacquelyn E. Murad, Plaintiff, v Josephine Russo, Defendant. City of Utica, Appellant, v Josephine Russo, Respondent.
    Submitted November 8, 2010;
    decided January 11, 2011
   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:
    Natalia Cokinos Oakes, Individually and as Successor Trustee of the Herbert C. Oakes Living Trust, as Assignee of Herbert C. Oakes, Jr. and Another, and as Guardian of Leopold V. Oakes, an Infant, Respondent, v Betty O. Muka, Appellant.
    Submitted December 6, 2010;
    decided January 11, 2011
   Motion for reconsideration of this Court’s October 19, 2010 dismissal order denied [see 15 NY3d 867 (2010)].


text:
    Eugene Palladino, Appellant, v CNY Centro, Inc., et al., Respondents. (And Another Action.)
    Submitted November 15, 2010;
    decided January 11, 2011
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the consolidated actions within the meaning of the Constitution.


text:
    Jaime Perez, an Infant, by His Mother and Natural Guardian, Nancy Torres, et al., Appellants, v City of New York, Respondent.
    Submitted December 6, 2010;
    decided January 11, 2011
   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:
    Sharon Rose, Respondent, v Christian J. Heidorf et al., Appellants.
    Submitted November 15, 2010;
    decided January 11, 2011
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain this motion for leave to appeal from the order of the County Court entered in this proceeding commenced in Town Court (see NY Const, art VI, § 3 [b]; CPLR 5602 [a]). Motion for a stay dismissed as academic.


text:
    Carolyn Schenk, Appellant, v Staten Island University Hospital et al., Respondents, et al., Defendant. Washington Mutual Bank, Respondent, v Carolyn Schenk, Appellant, et al., Defendants.
    Submitted December 13, 2010;
    decided January 11, 2011
   Motion for leave to appeal etc. dismissed upon the ground that the orders sought to be appealed from do not finally determine the actions within the meaning of the Constitution.


text:
    Carol A. Tonzi, Appellant-Respondent, v Richard H. Nichols, Individually and Doing Business as Nichols Financial Services, Respondent-Appellant. (Appeal No. 1.)
    Submitted November 8, 2010;
    decided January 11, 2011
   Motions 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:
    Carol A. Tonzi, Appellant-Respondent, v Richard H. Nichols, Individually and Doing Business as Nichols Financial Services, Respondent-Appellant. (Appeal No. 1.)
    Submitted December 13, 2010;
    decided January 11, 2011
   Motion by Cornell Securities Law Clinic for leave to file a brief amicus curiae on the motions for leave to appeal herein granted and the brief is accepted as filed, and for leave to appear amicus curiae on the appeal herein dismissed as academic.


text:
    In the Matter of Carlos Abreu, Appellant, v Hawley Vonce, as Correction Nurse, et al., Respondents.
    Decided January 18, 2011
   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 Maria-Lucia Anghel, Appellant, v Richard F. Daines, as Commissioner of Health, et al., Respondents.
    Submitted November 15, 2010;
    decided January 18, 2011
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and is not an order of the type provided for in CPLR 5602 (a) (2).


text:
    In the Matter of Brendan N., a Neglected Child. Columbia County Department of Social Services, Respondent; Arthur N., Appellant. (And Other Proceedings.)
    Submitted December 20, 2010;
    decided January 18, 2011
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    In the Matter of Mercedes Casado et al., Respondents, v Marvin Markus, as Chair of the New York City Rent Guidelines Board, et al., Appellants.
    Submitted January 10, 2011;
    decided January 18, 2011
   Motion by Council of the City of New York for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    City School District of the City of New York, Appellant, v Colleen McGraham, Respondent.
    Submitted December 27, 2010;
    decided January 18, 2011
   Motion to dismiss appeal denied.


text:
    In the Matter of Tina M. Cobane, Appellant, v Brian P. Cobane, Respondent.
    Submitted November 29, 2010;
    decided January 18, 2011
   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.

Judge Pigott taking no part.


text:
    In the Matter of Victor Altheus DePonceau, Appellant, v Brian Fischer, as Commissioner of Correctional Services, Respondent.
    Decided January 18, 2011
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Reinford Evans, Respondent, v Lakisha Pitt, Appellant.
    Submitted November 22, 2010;
    decided January 18, 2011
   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:
    Susan Larabee et al., Respondents-Appellants, v Governor of the State of New York, Respondent, and New York State Senate et al., Appellants-Respondents.
    Submitted December 6, 2010;
    decided January 18, 2011
   Motion for reargument dismissed as untimely (see Rules of Ct of Appeals [22 NYCRR] § 500.24 [b]) [see 14 NY3d 230 (2010)].

Chief Judge Lippman taking no part.


text:
    In the Matter of Raymond C. Miller Sr., Appellant, v Patricia A. Miller, Respondent. (And Another Related Proceeding.)
    Submitted December 6, 2010;
    decided January 18, 2011
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed the dismissal of the application to adjudicate respondent in violation of an order of visitation, dismissed upon the ground that such portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.

Judge Pigott taking no part.


text:
    Alfonso Moretti et al., Appellants, v Croniser Construction Corporation, Defendant, and Raymond Croniser, Respondent.
    Submitted November 22, 2010;
    decided January 18, 2011
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    In the Matter of O., Respondent, v M., Appellant.
    Submitted December 27, 2010;
    decided January 18, 2011
   Motion, insofar as it seeks leave to appeal from the November 2009 Appellate Division order, dismissed upon the ground that it does not lie, appellant having previously moved for leave to appeal to the Court of Appeals from the Appellate Division order from which leave to appeal is currently sought (14 NY3d 881 [2010]); motion, insofar as it seeks leave to appeal from the November 2010 Family Court order, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution and thus does not constitute a final judgment within the meaning of CPLR 5602 (a) (1) (ii), and upon the further ground that simultaneous appeals do not lie to both the Appellate Division and the Court of Appeals (see Parker v Rogerson, 35 NY2d 751, 753 [1974]). Motion for a stay dismissed as academic.


text:
    Penguin Group (USA) Inc., Appellant, v American Buddha, Respondent.
    Submitted January 10, 2011;
    decided January 18, 2011

      See 609 F3d 30.
   Motion by International Trademark Association for leave to file a brief amicus curiae on consideration of the certified question 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:
    Penguin Group (USA) Inc., Appellant, v American Buddha, Respondent.
    Submitted January 10, 2011;
    decided January 18, 2011

      See 609 F3d 30.
   Motion by American Association of Publishers et al. for leave to file a brief amici curiae on consideration of the certified question herein granted and the proposed brief is accepted as filed.


text:
    The People of the State of New York, Respondent, v Maurice Canteen, Appellant.
    Submitted December 6, 2010;
    decided January 18, 2011
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion from the order of the Appellate Term (see CPLR 5602 [a]). Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York, Respondent, v Hai Guang Zheng, Appellant.
    Submitted January 10, 2011;
    decided January 18, 2011
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Appellant, v Jason Mack, Respondent.
    Submitted January 10, 2011;
    decided January 18, 2011
   Motion for assignment of counsel granted and Alice L. Fontier, Esq., 2 Wall Street, 3rd Floor, New York, NY 10005 assigned as counsel to the respondent on the appeal herein.


text:
    The People of the State of New York, Respondent, v Isidro Rodriguez, Appellant.
    Submitted December 13, 2010;
    decided January 18, 2011
   Motion to vacate this Court’s December 1, 2010 preclusion order granted.


text:
    Adrienne Raville, Respondent, v Salah Elnomany, Appellant.
    Decided January 18, 2011
   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 Justo Richards, Appellant, v Andrew Cuomo, New York State Attorney General, Respondent.
    Submitted November 29, 2010;
    decided January 18, 2011
   On the Court’s own motion, appeal transferred, without costs, to the Appellate Division, Third Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]). Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion (see NY Const, art VI, § 3 [b]; CPLR 5602). Motion for poor person relief dismissed as academic.


text:
    In the Matter of Shellfish, Inc., Appellant, v New York State Department of Environmental Conservation et al., Respondents.
    Submitted November 8, 2010;
    decided January 18, 2011
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    David J. Smith, Respondent, v Niagara Frontier Transit Metro System, Inc., et al., Appellants.
    Submitted November 15, 2010;
    decided January 18, 2011
   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:
    Douglas Warney, Appellant, v State of New York, Respondent.
    (Claim No. 114826.)
    Submitted January 10, 2011;
    decided January 18, 2011
   Motion by Innocence Network for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    John Whitfield, Appellant, v State of New York, Respondent.
    Submitted December 6, 2010;
    decided January 18, 2011
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    [942 NE2d 1046, 917 NYS2d 621]
    Myra Lehman, Appellant, v North Greenwich Landscaping, LLC, et al., Respondents.
    Argued January 5, 2011;
    decided February 10, 2011

      APPEARANCES OF COUNSEL

      Arthur Paul Condon, Jr., Rye, for appellant.

      Law Office of Lori D. Fishman, Tarrytown (George R. Dieter of counsel), for North Greenwich Landscaping, LLC, respondent.

      Thomas D. Hughes, New York City, Richard C. Rubinstein and David D. Hess for Horton School Associates, respondent.
   OPINION OF THE COURT

Memorandum.

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

Defendant-respondent North Greenwich Landscaping, LLC, in contracting to render snow removal services to property owner Horton School Associates, did not assume a duty of care toward third parties who used the property (see e.g. Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 NY2d 220, 226 [1990]; Moch Co. v Rensselaer Water Co., 247 NY 160, 167-168 [1928]). In the circumstances of this case, the Appellate Division correctly held that the property owner did not relinquish its duty to inspect and safely maintain the premises (see Espinal v Melville Snow Contrs., 98 NY2d 136, 141 [2002]).

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

Order affirmed, with costs, in a memorandum.


author: Pigott, J. (dissenting).

text:
    [945 NE2d 445, 920 NYS2d 252]
    The People of the State of New York, Appellant, v Jason D. Liggins, Respondent.
    Argued January 13, 2011;
    decided February 10, 2011

      APPEARANCES OF COUNSEL

      Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), for appellant.

      Bond, Schoeneck & King, PLLC, Syracuse (Robert H. Kirchner and Stephanie M. Campbell of counsel), for respondent.
   OPINION OF THE COURT

Appeal dismissed upon the ground that the reversal by the Appellate Division was not “on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]).

Concur: Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith and Jones. Judge Pigott dissents and votes to reverse in an opinion.

Pigott, J. (dissenting).

My colleagues have determined that this appeal should be dismissed on the ground that the reversal by the Appellate Division was not “on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]). I respectfully disagree and therefore dissent from that decision. And, since we were briefed by the parties and heard oral argument on this case, I would reverse the order of the Appellate Division and reinstate the order of County Court, Oneida County.

The Appellate Division’s reversal, although stated to be on the law, involved the applicability of the emergency doctrine, generally a mixed question of law and fact (see People v Dallas, 8 NY3d 890 [2007]). An examination of the court’s opinion, however, confirms that the factual determinations alone would not have led to reversal. Rather, it was the court’s conclusion, as a legal matter, that the rule of People v Mitchell (39 NY2d 173 [1976]) prohibited the application of the emergency doctrine, that led the Appellate Division to conclude that the case must be reversed. Thus, the order was made “upon the law and such facts which, but for the determination of law, would not have led to reversal.”

Turning to the merits, a brief recitation of the facts is in order.

On the night of July 15, 2006, police responded to a report of “shots fired” at 822 Oswego Street in the City of Utica. Upon arriving at the scene, the officers observed a number of shell casings on the ground in front of the apartment building. A resident of the building told one of the officers that she heard an argument in Apartment 9 just prior to the shots being fired. The officers proceeded to Apartment 9, knocked on the door and waited several minutes until a “nervous and distraught” Laura Jones, who was talking on a cell phone, opened the door. The officers then went inside the apartment to look for the shooter or an injured victim. While doing so, an officer observed cocaine in plain view on a kitchen table. The apartment was then secured until another officer returned with a search warrant. A search of the apartment resulted in the seizure of quantities of cocaine in the kitchen and bedroom. No victim or perpetrator was found.

The suppression court sustained the warrantless search but the Appellate Division reversed, basing their decision on an interpretation of our decision in People v Mitchell (39 NY2d 173 [1976]), and finding that of the three elements necessary to establish the emergency exception for warrantless entry into someone’s home, the People failed to meet two of them.

First, the Appellate Division reached the conclusion that the suppression court erred in finding that exigent circumstances served as an appropriate exception to the warrantless entry rule to permit the officer to conduct the minimally intrusive entry into the apartment. It based its determination on the fact that while the officer received a call of “shots fired,” “[t]he People . . . failed to present any evidence concerning the source of the report, the timing of the report [vis-á-vis] the incident, the identity or description of the perpetrator, or the existence of a possible victim” (64 AD3d 1213, 1215 [2010]). However, none of those factors, in my view, erodes the undeniable fact that there were shots fired in a residential neighborhood late at night and that it was the duty of the police to respond to such a call. The fact that, at the time, the police were unaware of the perpetrators) or victim(s) is the norm, not the rule in incidents such as this. Rather, the facts that were known to the police, in my view, clearly establish reasonable grounds to believe that there was an emergency at hand and an immediate need for their assistance for the protection of life or property (see Mitchell, 39 NY2d at 177).

The Appellate Division also ruled, as a matter of law, that the People failed to satisfy the third element of the emergency exception, i.e., that there was a reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched. Here again, the undisputed facts are that the officers, confronted with shell casings just outside the apartment building, relied upon the information supplied by a tenant that there had been an argument in Apartment 9 moments prior to the shooting. The Appellate Division rejected the People’s contention that the officer had a reasonable basis, approximating probable cause, based on these facts because “[a]part from the resident’s vague, undetailed report of an argument” there was no basis for the officer to believe that the “trouble started in” defendant’s apartment (64 AD3d at 1215). In its view, the reported argument does not establish a “direct relationship” (Mitchell, 39 NY2d at 179) between the defendant’s apartment and the purported emergency. The court therefore concluded that “the warrantless intrusion into defendant’s apartment was not justified under the emergency exception to the warrant requirement” (64 AD3d at 1216). As a result, all evidence gained from the apartment was ordered suppressed. In my view this was error.

As the dissent at the Appellate Division pointed out: “In recognizing the danger of delayed response, the law does not require adherence to a standard which made stricter by hindsight would preclude the police from all courses of conduct but the least intrusive” (64 AD3d at 1216 [internal quotation marks omitted], quoting People v DePaula, 179 AD2d 424, 426 [1st Dept 1992] and People v Calhoun, 49 NY2d 398, 403 [1980]). As noted in People v DePaula (179 AD2d 424, 426 [1992]): “[I]t is difficult to conceive of what other action, consistent with their belief that someone inside [defendant’s apartment] might be injured or threatened, could have been taken [by the officer] to provide immediate assistance.”

For these reasons, I believe this case is appealable to this Court and upon appeal the order of the Appellate Division should be reversed.

Appeal dismissed, etc.


text:
    In the Matter of Afton C., a Child Alleged to be Neglected. Dutchess County Department of Social Services, Appellant; James C. et al., Respondents. (And Four Other Proceedings.)
    Submitted February 7, 2011;
    decided February 10, 2011
   Motion by New York Civil Liberties Union for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    In the Matter of Candido Baez, Appellant, v Norman R. Bezio, Director of Special Housing Unit, New York State Department of Correctional Services, Respondent.
    Submitted November 15, 2010;
    decided February 10, 2011
   Motion for leave to appeal dismissed upon the ground that the issues presented have become moot. Motion for poor person relief dismissed as academic. Motion for a stay dismissed as academic.


text:
    In the Matter of the Claim of Gregory W. Collins, Claimant, v Dukes Plumbing and Sewer Service, Inc., Appellant, et al., Respondent. Workers’ Compensation Board, Respondent.
    Submitted January 31, 2011;
    decided February 10, 2011
   Motion by New York State AFL/CIO for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and 24 copies filed within seven days.


text:
    COR Brokerage, Inc., Respondent, v New Hartford Shopping Center Trust, Appellant.
    Submitted December 20, 2010;
    decided February 10, 2011
   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:
    Joyce Henderson, Respondent, v Manhattan and Bronx Surface Transit Operating Authority et al., Appellants, et al., Defendants.
    Submitted January 3, 2011;
    decided February 10, 2011
   Motion to vacate this Court’s December 16, 2010 dismissal order granted [see 15 NY3d 951 (2010)].


text:
    In the Matter of Roman Kevilly, Appellant, v Susan Connell, Superintendent, Oneida Correctional Facility, Respondent.
    Submitted December 27, 2010;
    decided February 10, 2011
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    In the Matter of Hattie G. Martin, Deceased. Miladin Dobric, Appellant; David J. Baron, Respondent.
    Submitted December 6, 2010;
    decided February 10, 2011
   Motion for reargument of motion for leave to appeal denied [see 15 NY3d 858 (2010)].


text:
    Penguin Group (USA) Inc., Appellant, v American Buddha, Respondent.
    Decided February 10, 2011

      See 609 F3d 30.
   On the Court’s own motion, reargument granted and, upon reargument, motion by Public Citizen for leave to file a brief amicus curiae and to participate in oral argument on consideration of the certified question herein granted.


text:
    The People of the State of New York, Respondent, v Rene Bonilla, Appellant.
    Submitted January 18, 2011;
    decided February 10, 2011
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Kevin Smith, Appellant.
    Submitted January 18, 2011;
    decided February 10, 2011
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York ex rel. Gilbert O. Cameron, Appellant, v Dora B. Schirro et al., Respondents.
    Submitted December 20, 2010;
    decided February 10, 2011
   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 William R. Praileau, Appellant, v Polly Hoye, as Acting Schenectady County Court Judge, et al., Respondents.
    Submitted December 20, 2010;
    decided February 10, 2011
   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:
    In the Matter of Sasha B., a Child Alleged to be Neglected. Erica B., Appellant; Administration for Children’s Services, Respondent.
    Submitted January 3, 2011;
    decided February 10, 2011
   Motion to dismiss appeal granted and appeal dismissed, without costs, upon the ground that the counsel assigned by the Appellate Division has never been able to locate or contact the appellant and, thus, the appellant did not authorize prosecution of this appeal.


text:
    Franklin Strauss et al., Respondents, v Hemda Billig, Defendant, and Third-Party Plaintiff. Castle Village Owners Corp., Third-Party Defendant-Appellant.
    Submitted December 13, 2010;
    decided February 10, 2011
   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:
    Melissa A. Strilcic, Respondent, v Thomas M. Paroly, Appellant.
    Submitted December 27, 2010;
    decided February 10, 2011
   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:
    [944 NE2d 645, 919 NYS2d 109]
    The People of the State of New York, Respondent, v William Campbell, Appellant.
    Argued January 6, 2011;
    decided February 15, 2011
    APPEARANCES OF COUNSEL

      Davis Polk & Wardwell LLP, New York City (Katharine M. Atlas of counsel), and Office of the Appellate Defender (.Daniel Warshawsky and Richard M. Greenberg of counsel) for appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City (Ellen Stanfield Friedman and Richard Nahas of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant William Campbell was arrested on July 30, 2007 and charged with criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]) after having allegedly approached an undercover police officer to initiate a drug transaction. The parties stipulated that the courtroom should be closed to the general public during the undercover’s testimony. The prosecutor, however, also sought to exclude defendant’s family members planning to attend the trial. Following a Hinton hearing (People v Hinton, 31 NY2d 71 [1972], cert denied 410 US 911 [1973]), the trial judge ruled that defendant’s grandmother, with whom he resided and who had apparently reared him, and an aunt could remain in the courtroom when the undercover testified; he excluded another aunt and one of her sons on the ground that they resided near enough to the area where the undercover officer conducted ongoing drug investigations to present a risk of exposure, compromising his effectiveness and safety. We conclude that the record made at the Hinton hearing was adequate to support the trial judge’s exercise of discretion to exclude the aunt and her son (People v Nieves, 90 NY2d 426 [1997]).

Defendant’s remaining contentions likewise lack merit.

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

Order affirmed in a memorandum.


text:
    [944 NE2d 1119, 919 NYS2d 480]
    Gretchen Rivera, an Infant by Her Mother and Natural Guardian, Maria Rivera, et al., Appellants, v Paul G. Kleinman, M.D., et al., Respondents.
    Argued January 4, 2011;
    decided February 15, 2011

      APPEARANCES OF COUNSEL

      Pagan Law Firm, P.C., New York City (Tania M. Pagan of counsel), for appellants.

      McAloon & Friedman, P.C., New York City (Gina B. Di Folco of counsel), for Paul G. Kleinman, M.D. and another, respondents.

      Garbarini & Scher, P.C., New York City (William D. Buckley of counsel), for St. Barnabas Hospital and others, respondents.
   OPINION OF THE COURT

Memorandum.

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

Infant plaintiff was born in October 1995 with cerebral palsy and spastic quadriplegia. In March 2003, defendant doctor operated on the infant’s right and left hips, which had both dislocated as a consequence of her maladies. These surgeries, performed two weeks apart, entailed cutting and repositioning the bones that join at the hip and fixing them with a plate (with side screws) and a hip screw. This hardware was to be removed later, after the bones healed. In August 2005, plaintiff mother, on the infant’s behalf and individually, sued the doctor and defendant hospital for medical malpractice with respect to the March 2003 surgeries. She ultimately focused on a claim that the doctor had improperly positioned the screw implanted in the infant’s left hip, causing pain and suffering. This screw eventually broke through the infant’s skin and was taken out during emergency surgery in December 2006. Supreme Court granted the doctor’s motion and the hospital’s cross motion seeking summary judgment to dismiss the complaint. The Appellate Division affirmed (67 AD3d 482 [1st Dept 2009]), and so do we. In response to defendants’ prima facie showing of entitlement to summary judgment, plaintiffs’ expert did not raise an issue of fact as to any departure from good and accepted practice in the doctor’s treatment of the infant (including the two surgeries); and did not demonstrate any causal connection between the doctor’s alleged departures from good and accepted practice in placing the hip screw in the infant’s left hip and the injuries claimed to have been suffered on account of the hardware’s delayed removal.

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Anonymous, an Applicant for Admission to the Bar, Appellant.
    Decided February 15, 2011
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Andrew M. Cuomo, Attorney General of the State of New York, et al., Respondents, v Osmin Ferran, Jr., et al., Defendants, and Lewis Brestin et al., Appellants.
    Submitted December 6, 2010;
    decided February 15, 2011
   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 John Dalton, Appellant, v Andrea Evans, as Chair of the Division of Parole, Respondent.
    Submitted December 27, 2010;
    decided February 15, 2011
   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.