text:
    The People of the State of New York, Respondent, v Michael Thomas, Also Known as Neil Adams, Appellant. The People of the State of New York, Respondent, v Richard Diaz, Appellant. The People of the State of New York, Respondent, v Juan Jose Peque, Also Known as Juan Jose Peque Sicajan, Appellant.
    Submitted August 5, 2013;
    decided August 22, 2013
   Motion by Immigrant Defense Project for leave to file a brief amicus curiae on the appeals herein granted and the proposed brief is accepted as filed.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York ex rel. John F. Ryan, on Behalf of Richard Shaver, Respondent, v Kevin Cheverko et al., Appellants.
    Submitted July 29, 2013;
    decided August 22, 2013
   Motion by New York State Defenders Association et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Pinnacle Charter School et al., Appellants, v Board of Regents of the University of the State of New York et al., Respondents.
    Submitted July 29, 2013;
    decided August 22, 2013
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for a stay dismissed as academic.


text:
    Nandkumar Ramkumar, Appellant, v Grand Style Transportation Enterprises Inc. et al., Respondents. Grand Style Transportation Enterprises Inc. et al., Third-Party Plaintiffs-Respondents, v Georgina D. Castillo, Third-Party Defendant-Respondent.
    Submitted August 19, 2013;
    decided August 22, 2013
   Motion by New York Insurance Association 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 nine copies filed within seven days.


text:
    Ayodele Sandiford, Respondent, v City of New York Department of Education et al., Appellants, et al., Defendants.
    Submitted August 5, 2013;
    decided August 22, 2013
   Motion by National Employment Lawyers Association/New York for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and nine copies filed within seven days.


text:
    Oscar Starker, Appellant, v Trump Village Section 4, Inc., et al., Defendants, and New York State Division of Housing and Community Renewal et al., Respondents.
    Submitted May 13, 2013;
    decided August 22, 2013
   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:
    Town of Oyster Bay, Appellant, v Lizza Industries, Inc., Respondent. (And Other Actions.)
    Submitted June 24, 2013;
    decided August 22, 2013
   Motion by Associated General Contractors of New York State, LLC for leave to file a brief amicus curiae on the appeals herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and nine copies filed within seven days.


author: Memorandum.

text:
    [995 NE2d 178, 972 NYS2d 215]
    The People of the State of New York, Respondent, v Julio Rodriguez, Appellant.
    Decided August 27, 2013

      APPEARANCES OF COUNSEL

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

      Cyrus R. Vance, Jr., District Attorney, New York City (Patricia Curran of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Defendant failed to preserve his claim that he did not receive 20 days’ notice prior to his sex offender designation proceeding as required under Correction Law § 168-n (3). His argument that an adjournment of unspecified duration was required as a matter of due process is similarly unreviewable.

Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam concur.

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


text:
    In the Matter of Pablo Costello, Appellant, v New York State Board of Parole et al., Respondents.
    Submitted June 17, 2013;
    decided August 27, 2013
   Motion by Robert Dennison et al. for leave to file a brief amici curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    Echostar Satellite L.L.C., Appellant, v ESPN, Inc., et al., Respondents.
    Submitted May 13, 2013;
    decided August 27, 2013
   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. The order affirming the denial of the motion for judgment notwithstanding the verdict and affirming the denial of the motion to set aside the verdict resolves the issues raised on those motions; it does not dispose of all of the issues in the action (see CPLR 5611). The final and appealable paper to the Court of Appeals is the final judgment entered after the denial of the motions, or an Appellate Division order resolving an appeal from that judgment (see Anderson v Young & Rubicam, 14 NY3d 909 [2010]; Butler v New York City Tr. Auth., 14 NY3d 909 [2010]).


text:
    In the Matter of Riven Flamenbaum, Deceased. Vorderasiatisches Museum, Respondent; Hannah K. Flamenbaum, Appellant; Israel Flamenbaum, Objectant-Respondent.
    Submitted April 15, 2013;
    decided August 27, 2013
   Motion to strike portions of the brief of respondent Vorderasiatisches Museum denied.


text:
    Adwoa Gyabaah, Respondent, v Rivlab Transportation Corp., Appellant, et al., Defendant. Jeffrey A. Aronsky, P.C., Nonparty Respondent.
    Submitted June 24, 2013;
    decided August 27, 2013
   Motion to vacate this Court’s June 5, 2013 dismissal order granted [see 21 NY3d 1001 (2013)].

Judge Abdus-Salaam taking no part.


text:
    In the Matter of the Guardianship of Kevin Z., a Person Alleged to be Mentally Retarded and/or Developmentally Disabled. Carmella AA., Respondent; Edward Z., Appellant. (And Another Proceeding.)
    Submitted June 17, 2013;
    decided August 27, 2013
   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:
    Jannette Morales, Plaintiff, v Asarese Matters Community Center et al., Defendants, City of Buffalo, Appellant, and County of Erie, Respondent.
    (Appeal No. 2.)
    Submitted June 10, 2013;
    decided August 27, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v Martin Heidgen, Appellant.
    Submitted March 11, 2013;
    decided August 27, 2013
   Motion to require respondent to provide appellant’s counsel with a copy of respondent’s supplementary appendix granted.


text:
    In the Matter of Randolph W., Appellant, v Commissioner of Social Services, on Behalf of Ana B., Respondent.
    Submitted June 10, 2013;
    decided August 27, 2013
   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:
    [995 NE2d 845, 972 NYS2d 530]
    The People of the State of New York, Appellant, v Terrence McFarlane, Respondent.
    Decided August 29, 2013

      APPEARANCES OF COUNSEL

      Robert T. Johnson, District Attorney, Bronx (Stanley R. Kaplan of counsel), for appellant.
    Respondent precluded.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. The determination as to whether a defendant has consented to a search involves a mixed question of law and fact (People v Valerio, 95 NY2d 924, 925 [2000]). Where, as here, there exists record support for the Appellate Division’s resolution of this question, the issue is beyond this Court’s further review (id.).

Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam concur.

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


text:
    Archstone et al., Appellants, v Tocci Building Corporation of New Jersey, Inc., et al., Defendants, and Perkins Eastman Architects, Inc., et al., Respondents. (And Third-Party Actions.)
    Submitted June 17, 2013;
    decided August 29, 2013
   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:
    Mark W. Borowski, Respondent, v Jeremy J. Ptak, Appellant, et al., Defendant.
    Decided August 29, 2013
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Cooperstown Holstein Corporation, Appellant, v Town of Middlefield, Respondent.
    Submitted June 24, 2013;
    decided August 29, 2013
   Motion by New York Farm Bureau for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    Cooperstown Holstein Corporation, Appellant, v Town of Middlefield, Respondent.
    Submitted June 24, 2013;
    decided August 29, 2013
   Motion by the Associated General Contractors of New York State, LLC, et al. for leave to file a brief amici curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    Cooperstown Holstein Corporation, Appellant, v Town of Middlefield, Respondent.
    Submitted July 1, 2013;
    decided August 29, 2013
   Motion by the American Petroleum Institute et al. for leave to file a brief amici curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    In the Matter of Amil Dinsio, Appellant, v Supreme Court, Appellate Division, Third Department, Respondent.
    Submitted June 24, 2013;
    decided August 29, 2013
   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:
    Felix Hernandez, Appellant, v City of New York, Respondent, et al., Defendants.
    Submitted June 17, 2013;
    decided August 29, 2013
   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 Blanche Hunter, Deceased. JPMorgan Chase Bank, N.A., Appellant; Margaret Hunter et al., Respondents.
    Submitted June 24, 2013;
    decided August 29, 2013
   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 Norse Energy Corp. USA, Appellant, v Town of Dryden et al., Respondents. Dryden Resources Awareness Coalition, Proposed Intervenor.
    Submitted June 24, 2013;
    decided August 29, 2013
   Motion by New York Farm Bureau for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    In the Matter of Norse Energy Corp. USA, Appellant, v Town of Dryden et al., Respondents. Dryden Resources Awareness Coalition, Proposed Intervenor.
    Submitted June 24, 2013;
    decided August 29, 2013
   Motion by the Washington Legal Foundation for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    In the Matter of Norse Energy Corp. USA, Appellant, v Town of Dryden et al., Respondents. Dryden Resources Awareness Coalition, Proposed Intervenor.
    Submitted June 24, 2013;
    decided August 29, 2013
   Motion by the Associated General Contractors of New York State, LLC, et al. for leave to file a brief amici curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    In the Matter of Norse Energy Corp. USA, Appellant, v Town of Dryden et al., Respondents. Dryden Resources Awareness Coalition, Proposed Intervenor.
    Submitted July 1, 2013;
    decided August 29, 2013
   Motion by the American Petroleum Institute et al. for leave to file a brief amici curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    In the Matter of State of New York, Respondent, v Daniel OO., Appellant.
    Decided August 29, 2013
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the stipulation and order of Supreme Court is not a final judgment within the meaning of the Constitution and CPLR 5601 (d) because the Mental Hygiene Law article 10 application was withdrawn without prejudice to renewal in the event of certain conditions.


text:
    Yuan Zhai, Appellant, v Chemical Bank et al., Respondents.
    Decided August 29, 2013
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that it does not lie (see CPLR 5601).

Judge Abdus-Salaam taking no part.


text:
    In the Matter of Annabelle Zaratzian, Appellant, v Adel Ramsey Abadir, Respondent. (Proceeding No. 1.) In the Matter of Adel Ramsey Abadir, Respondent, v Annabelle Zaratzian, Appellant. (Proceeding No. 2.)
    Submitted July 1, 2013;
    decided August 29, 2013
   Motion by the Women’s Bar Association of the State of New York for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    Altshuler Shaham Provident Funds, Ltd., Appellant, v GML Tower, LLC, et al., Defendants, and The Pike Company, Inc., et al., Respondents.
    Submitted July 22, 2013;
    decided September 3, 2013
   Motion for clarification or reargument denied with $100 costs and necessary reproduction disbursements [see 21 NY3d 352 (2013)].

Judge Abdus-Salaam taking no part.


text:
    In the Matter of Angel H., Also Known as Angel L.H., and Another. Mercy First, Respondent; Omayra G., Appellant, et al., Respondent. (And Another Proceeding.)
    Submitted August 5, 2013;
    decided September 3, 2013
   Motion for leave to appeal denied. Motion for poor person relief dismissed as academic. Motion for a stay dismissed as academic.


text:
    In the Matter of Sanayi Beckles, Appellant, v Rafael E. Cestero, Respondent.
    Submitted July 1, 2013;
    decided September 3, 2013
   Motion for leave to appeal denied. Motion for poor person relief dismissed as academic. Motion for a stay dismissed as academic.

Judge Abdus-Salaam taking no part.


text:
    In the Matter of Donald Mack Bennett, Appellant, v Jeff McKoy, Superintendent, et al., Respondents.
    Decided September 3, 2013
   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:
    In the Matter of Anna Ciano, Appellant, v Maxwell J. Wiley et al., Respondents.
    Submitted July 8, 2013;
    decided September 3, 2013
   Motion for leave to appeal dismissed upon the ground that the issues presented have become moot.

Judge Abdus-Salaam taking no part.


text:
    In the Matter of Easylink Services International, Inc., Appellant, v New York State Tax Appeals Tribunal et al., Respondents.
    Submitted July 1, 2013;
    decided September 3, 2013
   Motion by Institute for Professionals in Taxation for leave to file a brief amicus curiae on the motion for leave to appeal herein dismissed as academic.


text:
    Shawn Green, Appellant, v State of New York, Respondent.
    Submitted June 24, 2013;
    decided September 3, 2013
   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:
    Patricia Kane, as Limited Administratrix of the Estate of Jeanne Kane, Deceased, and Patricia Kane, Individually, Respondent, v John Galtieri, Appellant, and Marilyn Galtieri, Intervenor-Appellant.
    Decided September 3, 2013
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the Papers Rejection Notice appealed from is neither a judgment nor an order from which an appeal to the Court of Appeals may be taken (see CPLR 5512 [a]; 5601).


text:
    K2 Investment Group, LLC, et al., Respondents-Appellants, v American Guarantee & Liability Insurance Company, Appellant-Respondent.
    Submitted July 22, 2013;
    decided September 3, 2013
   Motion for reargument granted and case set down for a future session of the Court of Appeals [see 21 NY3d 384 (2013)].

Judge Abdus-Salaam taking no part.


text:
    K2 Investment Group, LLC, et al., Respondents-Appellants, v American Guarantee & Liability Insurance Company, Appellant-Respondent.
    Submitted July 29, 2013;
    decided September 3, 2013
   Motion by Complex Insurance Claims Litigation Association et al. for leave to file a brief amici curiae on the motion for re-argument herein granted and the brief is accepted as filed [see 21 NY3d 384 (2013)].

Judge Abdus-Salaam taking no part.


text:
    In the Matter of Larry TT., Appellant. James Conway, as Superintendent of Attica Correctional Facility, et al., Respondents. (Proceeding No. 1.) In the Matter of State of New York, Respondent, v Larry TT., Appellant. (Proceeding No. 2.)
    Decided September 3, 2013
   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 Douglas Latta, Appellant, v Maxwell Wiley et al., Respondents.
    Submitted July 8, 2013;
    decided September 3, 2013
   Motion for leave to appeal dismissed upon the ground that the issues presented have become moot.

Judge Abdus-Salaam taking no part.


text:
    The People of the State of New York, Respondent, v Selbin Martinez, Appellant.
    Submitted June 24, 2013;
    decided September 3, 2013
   Motion to strike page 520 of appellant’s appendix and references thereto in appellant’s brief granted.


text:
    In the Matter of Ronald Rabasco, Appellant, v Stacey Lamar, Respondent. (And Two Other Proceedings.)
    Submitted July 22, 2013;
    decided September 3, 2013
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    Manuel Reis, Respondent-Appellant, v Volvo Cars of North America et al., Appellants-Respondents. (And a Third-Party Action.)
    Submitted July 1, 2013;
    decided September 3, 2013
   Motion to dismiss appeal taken by respondent-appellant Manuel Reis granted and that appeal dismissed, with $400 costs and $100 cost of motion, upon the ground that the two-Justice dissent at the Appellate Division is not on a question of law in favor of respondent-appellant (see CPLR 5601 [a]).

Judge Abdus-Salaam taking no part.


text:
    In the Matter of Michael Sacks et al., Appellants, v Tax Appeals Tribunal of the State of New York et al., Respondents.
    Submitted July 22, 2013;
    decided September 3, 2013
   Motion for reargument of motion for leave to appeal denied [see 21 NY3d 857 (2013)].

Judge Abdus-Salaam taking no part.


text:
    Robert L. Schulz, Appellant, et al., Plaintiffs, v State of New York Executive et al., Respondents.
    Submitted July 15, 2013;
    decided September 3, 2013
   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 and is not a nonfinal order of the type within the meaning of CPLR 5602 (a) (2).


text:
    Eldrid Sequeira, Appellant, v Rachel Sequeira, Respondent.
    Submitted June 24, 2013;
    decided September 3, 2013
   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.

Judge Abdus-Salaam taking no part.


text:
    Johnny Watson, Appellant, v Salvatore Priore et al., Defendants, and Steven A. Abdoo et al., Respondents.
    Submitted July 22, 2013;
    decided September 3, 2013
   Motion, insofar as it seeks leave to appeal from the Appellate Division order affirming the June 2012 Supreme Court order, dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Esther York, Appellant, v Joseph York, Respondent.
    Submitted July 8, 2013;
    decided September 3, 2013
   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 Martin Dekom, Appellant, v Joseph Trani et al., Respondents.
    Submitted September 6, 2013;
    decided September 6, 2013
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.

Judge Rivera taking no part.


text:
    [996 NE2d 904, 974 NYS2d 24]
    Bruno Kearney Architects, LLP, Appellant, v Lisa Rose, Respondent.
    Decided September 10, 2013

      APPEARANCES OF COUNSEL

      Gogick, Byrne & O’Neill, LLP, New York City (John M. Rondello, Jr., of counsel), for appellant.

      Law Offices of William R. Garbarino, Sayville (Donald R. Hamill of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, and judgment absolute dismissing the complaint granted upon plaintiffs stipulation. The Appellate Division correctly determined that plaintiff was not entitled to recovery against defendant.

Concur: Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott and Abdus-Salaam. Taking no part: Judge Rivera.


text:
    Christine Adami, Appellant, v Warwick Valley Central School District et al., Respondents.
    Submitted June 17, 2013;
    decided September 10, 2013
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed the denial of appellant’s motion to renew, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Anthony Brandon, Appellant, v Melvyn R. Clauson, Respondent.
    Submitted July 1, 2013;
    decided September 10, 2013
   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 Cheyenne J., a Child Alleged to be Neglected. Christian J., Appellant; Administration for Children’s Services, Respondent, et al., Respondent.
    Submitted July 15, 2013;
    decided September 10, 2013
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument or leave to appeal, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.

Judge Abdus-Salaam taking no part.


text:
    Roberto Ciaprazi, Appellant, v State of New York, Respondent.
    Submitted June 24, 2013;
    decided September 10, 2013
   Motion, insofar as it seeks leave to appeal from the May 2013 Appellate Division order, denied; motion for leave to appeal otherwise dismissed upon the ground that the other orders sought to be appealed from do not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Echo W. Dixon, Appellant, v State of New York et al., Respondents. The People of the State of New York ex rel. Echo W. Dixon, Appellant, v State of New York et al., Respondents.
    Submitted July 15, 2013;
    decided September 10, 2013
   On the Court’s own motion, appeal, insofar as taken from the June 2013 Appellate Division order, dismissed, without costs, upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution; appeal otherwise dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    Indymac Bank, F.S.B., Respondent, v Diana J. Yano-Horoski, Appellant, et al., Defendants.
    Submitted July 22, 2013;
    decided September 10, 2013
   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:
    Leon R. Koziol, Individually and as Parent of Child A and Another, Appellant, v State of New York et al., Respondents, et al., Defendant.
    Decided September 10, 2013
   Appeal, insofar as taken from that part of the Appellate Division order that affirmed so much of Supreme Court’s order as dismissed the complaint, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved; appeal, insofar as taken from that part of the Appellate Division order that affirmed so much of Supreme Court’s order as denied appellant’s motion for reconsideration of a prior order denying appellant’s application for a preliminary injunction, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Leon R. Koziol, a Suspended Attorney, Appellant. Committee on Professional Standards, Respondent.
    Submitted July 15, 2013;
    decided September 10, 2013
   On the Court’s own motion, appeal, insofar as taken from that portion of the Appellate Division order denying reconsideration of the application for reinstatement, dismissed, without costs, upon the ground that such portion of the order does not finally determine the proceeding within the meaning of the Constitution; appeal otherwise dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal, insofar as taken from that portion of the Appellate Division order denying reconsideration of the application for reinstatement, 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. Motion for a stay and other relief dismissed as academic.


text:
    Ralph Massaro et al., Appellants, v Jaina Network Systems, Inc., et al., Respondents.
    Submitted June 24, 2013;
    decided September 10, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Michael S. Pascazi, Appellant, v Colleen C. Gardner, as Commissioner of Labor, Respondent.
    Decided September 10, 2013
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    The People of the State of New York, Respondent, v Oliverio Galindo, Appellant.
    Submitted May 28, 2013;
    decided September 10, 2013
   Motion to dismiss appeal denied.


text:
    The People of the State of New York, Respondent, v Miguel Mejias, Appellant. The People of the State of New York, Respondent, v Antonio Rodriguez, Appellant.
    Submitted June 10, 2013;
    decided September 10, 2013
   Motion for reargument denied [see 21 NY3d 73 (2013)].

Judge Abdus-Salaam taking no part.


text:
    The People of the State of New York ex rel. Keith Todd, Appellant, v Sandra Dolce, Respondent.
    Submitted July 22, 2013;
    decided September 10, 2013
   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:
    Eugene Tenenbaum, Appellant, v State Commissioner of Housing and Community Renewal, Respondent.
    Decided September 10, 2013
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that it does not lie (see CPLR 5601).


text:
    Samuel Tomaino, Appellant, v Thomas Marotta, Jr., Respondent.
    Submitted July 29, 2013;
    decided September 10, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (see Cuadrado v New York City Tr. Auth., 65 AD3d 434 [2009], lv dismissed 14 NY3d 748 [2010]).


text:
    Warshaw Burstein Cohen Schlesinger & Kuh, LLP, Respondent, v Eric A. Longmire, Appellant.
    Submitted July 1, 2013;
    decided September 10, 2013
   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.

Judge Rivera taking no part.


text:
    Wells Fargo Bank, N.A., as Trustee under Pooling and Servicing Agreement Dated as of August 1, 2005 Asset-Backed Pass-Through Certificates Series 2005-WHQ4, Respondent, v Oswald Russell, Appellant, et al., Defendants.
    Submitted February 25, 2013;
    decided September 10, 2013
   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:
    [996 NE2d 910, 974 NYS2d 29]
    Hideki Sato et al., Appellants, v Ippudo NY et al., Respondents.
    Decided September 12, 2013

      APPEARANCES OF COUNSEL

      Pollack, Pollack, Isaac & DeCicco, LLP, New York City (Brian J. Isaac of counsel), for appellants.

      Molod Spitz & DeSantis, P.C., New York City (Marcy Sonneborn of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs. Plaintiff failed to raise a triable issue of fact concerning whether defendants’ alleged negligence in failing to provide adequate warning of the presence of the staircase or adequate lighting in the staircase and surrounding area caused his fall.

Concur: Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam.


text:
    Bradford Applegate, Appellant, v State of New York, Respondent.
    Decided September 12, 2013
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Barbara N., Appellant. Robert Doar, Respondent.
    Submitted July 8, 2013;
    decided September 12, 2013
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]; 5514 [c]).


text:
    In the Matter of the Claim of Sharon K. Bland, Appellant, v Gellman, Brydges & Schroff et al., Respondents. Workers’ Compensation Board, Respondent. (And Another Proceeding.)
    Submitted April 1, 2013;
    decided September 12, 2013
   Motion for reargument of motion for leave to appeal denied [see 20 NY3d 1055 (2013)].

Judge Abdus-Salaam taking no part.


text:
    Michael Buxbaum, Appellant, v Nadine Castro, Respondent.
    Decided September 12, 2013
   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 the Foreclosure of Tax Liens by County of Sullivan, Respondent. Witold Matejkowski, Appellant.
    Decided September 12, 2013
   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:
    In the Matter of James Holmes, Respondent, v Jana Winter, Appellant.
    Submitted September 9, 2013;
    decided September 12, 2013
   Motion by Reporters Committee for the Freedom of the Press et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and nine copies filed within seven days.


text:
    Matthew Isabella et al., Plaintiffs, and Doris A. Hallock et al., Third-Party Plaintiff-Respondents, v Michael W. Koubek, Third-Party Defendant-Appellant.
    Decided September 12, 2013
   Certification of question by the United States Court of Appeals for the Second Circuit, pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), accepted and the issues presented are to be considered after briefing and argument.

Concur: Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam.


text:
    Norex Petroleum Limited, Appellant, v Leonard Blavatnik et al., Respondents.
    Submitted June 17, 2013;
    decided September 12, 2013
   Motion by Thomas D. Rowe, Jr., et al. for leave to file a brief amici curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    Norex Petroleum Limited, Appellant, v Leonard Blavatnik et al., Respondents.
    Submitted June 24, 2013;
    decided September 12, 2013
   Motion by Jonathan R. Siegel for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    The People of the State of New York, Respondent, v Terrell Allen, Appellant.
    Submitted September 9, 2013;
    decided September 12, 2013
   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, Appellant, v Mark Garrett, Respondent.
    Submitted September 9, 2013;
    decided September 12, 2013
   Motion for assignment of counsel granted and Steven A. Feldman, Esq., 626 Reckson Plaza, West Tower, 6th Floor, Union-dale, New York 11556 assigned as counsel to the respondent on the appeal herein.


text:
    The People of the State of New York, Respondent, v Dwight Giles, Appellant.
    Submitted September 3, 2013;
    decided September 12, 2013
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Howard Grubstein, Appellant.
    Submitted September 3, 2013;
    decided September 12, 2013
   Motion for assignment of counsel granted and Richard L. Herzfeld, Esq., 104 West 40th Street, 20th Floor, New York, NY 10018 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Martin Heidgen, Appellant. The People of the State of New York, Respondent, v Franklin McPherson, Appellant. The People of the State of New York, Respondent, v Taliyah Taylor, Appellant.
    Submitted September 9, 2013;
    decided September 12, 2013
   Motion by District Attorneys Association of the State of New York for leave to appear amicus curiae on the appeals herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and nine copies filed within seven days.


text:
    The People of the State of New York, Respondent, v Benjamin Jenkins, Appellant.
    Submitted September 3, 2013;
    decided September 12, 2013
   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 Raul Johnson, Appellant.
    Submitted September 9, 2013;
    decided September 12, 2013
   Motion for assignment of counsel granted and James D. Licata, Esq., Rockland County Public Defender, 11 New Hemp-stead Road, New City, New York 10956 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Jose Maldonado, Appellant.
    Submitted August 26, 2013;
    decided September 12, 2013
   Motion for assignment of counsel granted and Lynn WL. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Appellant, v Mark Russell, Respondent.
    Submitted August 12, 2013;
    decided September 12, 2013
   Motion to vacate this Court’s July 19, 2013 dismissal order granted [see 21 NY3d 1012 (2013)].


text:
    The People of the State of New York, Appellant, v Sidney Wisdom, Respondent.
    Submitted March 11, 2013;
    decided September 12, 2013
   Motion to require appellant to provide respondent’s counsel with material granted to the extent that appellant is required to provide respondent’s counsel with copies of the DVD recordings of the videotaped statements and the related excerpt from the transcript (minutes of Apr. 19, 1996 at 7, lines 3-8).


text:
    Rocky Point Drive-In, L.P., Appellant, v Town of Brookhaven et al., Respondents.
    Submitted September 9, 2013;
    decided September 12, 2013
   Motion by Association of Towns of the State of New York for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and nine copies filed within seven days.


text:
    In the Matter of Samuel A. Garrasi and Mary H. Garrasi Family Revocable Trust. G. Robert Garrasi, as Cotrustee of the Samuel A. Garrasi and Mary H. Garrasi Family Revocable Trust, Appellant, et al., Respondent; Sallie Hume Garrasi, Respondent.
    Submitted July 15, 2013;
    decided September 12, 2013
   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:
    Town of Montauk, Appellant, v Lorraine Cortez-Vasquez, as Secretary of State of the State of New York, with Control of, and Responsibility for, the Division of Corporations of the Department of State, Respondent.
    Decided September 12, 2013
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, 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 (see NY Const, art VI, §§ 3 [b] [2]; 5 [b]; CPLR 5601 [b] [2]).


text:
    Trahwen, LLC, Respondent, v Ming 99 Cent City #7, Inc., Doing Business as 99 Cent City, et al., Appellants.
    Submitted August 5, 2013;
    decided September 12, 2013
   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:
    Rhonda Wittorf, Appellant, v City of New York, Respondent.
    Submitted September 3, 2013;
    decided September 12, 2013
   Motion by New York State Trial Lawyers Association for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    [997 NE2d 139, 974 NYS2d 314]
    In the Matter of Robert E. Alexander.
    Decided September 17, 2013
   OPINION OF THE COURT

On consideration of the continuation of this Court’s August 22, 2013 suspension of Honorable Robert E. Alexander from the office of Justice of the Pembroke Town Court, Genesee County, it is ordered that the suspension is continued, with pay, effective immediately (see 21 NY3d 1021 [2013]).

Concur: Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam.


text:
    In the Matter of Annette J.S.J. Administration for Children’s Services et al., Respondents; Rebecca F., Appellant. (Proceeding No. 1.) In the Matter of Sabrina R.M.I. Administration for Children’s Services et al., Respondents; Rebecca F., Appellant. (Proceeding No. 2.)
    Submitted July 29, 2013;
    decided September 17, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceedings within the meaning of the Constitution.


text:
    Olga Caro, Appellant, v Marsh USA, Inc., et al., Respondents.
    Submitted June 24, 2013;
    decided September 17, 2013
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that dismissed the appeal from so much of the Supreme Court order as directed that the video recording of all future depositions be at appellant’s attorney’s expense, dismissed upon the ground that as to that part of the Appellate Division order, appellant is not a party aggrieved; motion for leave to appeal otherwise 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:
    Deutsche Bank National Trust Company, Respondent, v Demetres Spanos et al., Defendants, and Isadora Sidroula Spanos, Appellant.
    Submitted August 12, 2013;
    decided September 17, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    The Goldman Sachs Group, Inc., et al., Respondents, v Almah LLC, Appellant.
    Submitted July 15, 2013;
    decided September 17, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (see Burke v Crosson, 85 NY2d 10, 18 n 5 [1995]).

Judge Abdus-Salaam taking no part.


text:
    Melanie Kelley, Individually and as Administrator of the Estate of Alex Dustin Smith, Deceased, et al., Appellants, v Richard Schneck, Doing Business as Schneck Service & Installation and/or Schneck Appliance Service, Respondent.
    Submitted June 24, 2013;
    decided September 17, 2013
   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:
    Madison Realty Capital, L.P., Respondent, v Broken Angel, LLC, et al., Defendants, and Arthur N. Wood, Appellant. Arthur N. Wood, Appellant, v Madison Realty Capital, L.P., Respondent.
    Submitted June 24, 2013;
    decided September 17, 2013
   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:
    Aleksandr Palatkevich, Respondent, v Stanacard, LLC, Appellant.
    Decided September 17, 2013
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.

Judge Abdus-Salaam taking no part.


text:
    The People of the State of New York, Respondent, v Jean Cantave, Appellant.
    Submitted August 12, 2013;
    decided September 17, 2013
   Motion to clarify opinion denied [see 21 NY3d 374 (2013)].


text:
    Quaker Hills, LLC, Respondent, v Pacific Indemnity Co., Appellant.
    Decided September 17, 2013
   Certification of questions by the United States Court of Appeals for the Second Circuit, pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), accepted and the issues presented are to be considered after briefing and argument.

Concur: Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam.


text:
    Trump Securities, LLC, et al., Respondents, v Purolite Company et al., Appellants, et al., Defendant.
    Submitted July 15, 2013;
    decided September 17, 2013
   Motion for reargument granted and, upon reargument, motion for leave to appeal denied [see 21 NY3d 987 (2013)].

Judge Abdus-Salaam taking no part.


text:
    Union Square Park Community Coalition, Inc., et al., Appellants, v New York City Department of Parks and Recreation et al., Respondents.
    Submitted August 12, 2013;
    decided September 17, 2013
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that denied appellants’ motion for a preliminary injunction, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise granted.


text:
    U.S. Bank National Association, Appellant, v Lisa Ann Pia et al., Respondents. (And a Third-Party Action.)
    Submitted July 15, 2013;
    decided September 17, 2013
   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:
    Artur Zaytsev, Respondent, v Stanacard, LLC, Appellant.
    Decided September 17, 2013
   Appeal, insofar as taken from that part of the Appellate Division order that affirmed Supreme Court’s order denying summary judgment, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the Appellate Division order does not finally determine the action within the meaning of the Constitution; appeal, insofar as taken from that part of the Appellate Division order that affirmed Supreme Court’s order granting respondent’s application to voluntarily discontinue the action without prejudice, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.

Judge Abdus-Salaam taking no part.


author: Chief Judge Lippman. Pigott, J. Smith, J.

text:
    [999 NE2d 1121, 977 NYS2d 676]
    Eric Landon, Individually and on Behalf of All Others Similarly Situated, Respondent, v Kroll Laboratory Specialists, Inc., Appellant.
    Argued September 3, 2013;
    decided October 10, 2013

      POINTS OF COUNSEL

      Anderson & Ochs, LLP, New York City (Mitchel H. Ochs, Jason A. Stern and Michael J. Hasday of counsel), for appellant.
    I. The Appellate Division erred as a matter of law in reinstating the complaint sounding in negligence. (Matter of New York City Asbestos Litig., 5 NY3d 486; Hall v United Parcel Serv. of Am., 76 NY2d 27; Brothers v New York State Elec. & Gas Corp., 11 NY3d 251; Espinal v Melville Snow Contrs., 98 NY2d 136; Hamilton v Beretta U.S.A. Corp., 96 NY2d 222; Credit Alliance Corp. v Arthur Andersen & Co., 65 NY2d 536; Westpac Banking Corp. v Deschamps, 66 NY2d 16; Stiver v Good & Fair Carting &

      Moving, Inc., 9 NY3d 253; Calamari v Grace, 98 AD2d 74; Pandolfo v U.A. Cable Sys. of Watertown, 171 AD2d 1013.) II. The Appellate Division erred in recognizing a new cause for liability in favor of a probationer against a private testing laboratory concerning drug test results reported as part of the terms and conditions of his probation. (Wilson v City of New York, 294 AD2d 290; Hall v United Parcel Serv. of Am., 76 NY2d 27; Du Chateau v Metro-North Commuter R.R. Co., 253 AD2d 128; Murphy v American Home Prods. Corp., 58 NY2d 293; Coleman v Corporate Loss Prevention Assoc., 282 AD2d 703; Santiago v Greyhound Lines, Inc., 956 F Supp 144; Morrissey v Brewer, 408 US 471; People v Gilmore, 63 AD2d 45; People v Spragis, 5 AD3d 814; People ex rel. Williams v Eno, 134 App Div 527.)

      Eric Landon, pro se. Robert N. Isseks, Middletown, and Bloom & Bloom, P.C., New Windsor (Kevin D. Bloom of counsel), on the brief, for respondent.
    I. The Appellate Division correctly held that a drug testing laboratory owes a duty of care to the subjects of its drug tests. (532 Madison Ave. Gourmet Foods v Finlandia Ctr., 96 NY2d 280; Hamilton v Beretta U.S.A. Corp., 96 NY2d 222; Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579; Moch Co. v Rensselaer Water Co., 247 NY 160; Chapman v Labone, 460 F Supp 2d 989; Coleman v Town of Hempstead, 30 F Supp 2d 356; Santiago v Greyhound Lines, Inc., 956 F Supp 144; Stiver v Good & Fair Carting & Moving, Inc., 9 NY3d 253; Espinal v Melville Snow Contrs., 98 NY2d 136; Matter of New York City Asbestos Litig., 5 NY3d 486; Hall v United Parcel Serv. of Am., 76 NY2d 27.) II. The complaint alleges legally cognizable harm and loss. (Kennedy v McKesson Co., 58 NY2d 500; Lando v State of New York, 39 NY2d 803; Lapidus v State of New York, 57 AD3d 83; Signature Health Ctr., LLC v State of New York, 28 Misc 3d 543; Barna v Travis, 239 F3d 169; People v Douglas, 94 NY2d 807; Central Trust Co., Rochester v Goldman, 70 AD2d 767; Shindler v Lamb, 25 Misc 2d 810, 10 AD2d 826, 9 NY2d 621; Fugazy Travel Bur. v Ernst & Ernst, 31 AD2d 924; Jones v Morgan, 90 NY 4.)
   OPINION OF THE COURT

Chief Judge Lippman.

The issue presented by this appeal is whether plaintiff Eric Landon has stated a cause of action against defendant drug testing laboratory (Kroll) for the alleged negligent testing of his biological sample. Under the circumstances of this case, we find the complaint sufficient to withstand a motion to dismiss.

In January 2002, Landon was convicted of second degree forgery and was sentenced to a five-year term of probation. One of the conditions of Landon’s probation was a requirement that he submit to random drug testing. Pursuant to a contract with Orange County and/or the Orange County Probation Department (the County), defendant Kroll, a Louisiana corporation, was engaged to test oral fluid samples provided by probationers for the presence of illicit or controlled substances.

On December 17, 2007, Landon’s probation officer directed him to provide an oral fluid sample for testing. The sample was taken using an Intercept DOA Oral Specimen Collection Device, manufactured by Orasure Technologies, Inc. A simultaneous urine sample was not taken. Later the same day, Landon obtained an independent blood test, for the purpose of protecting himself from a potential false positive result. The blood test came back negative for illicit and controlled substances.

Kroll, however, detected the presence of cannabinoids in the oral sample exceeding a screen test cutoff level of 1 ng/ml. The laboratory generated a written report dated December 20, 2007 informing the probation department that Landon’s sample had screen tested positive for THC. The probation department then filed a violation of probation (VOP) proceeding, seeking to have Landon’s probationary sentence revoked and to have him incarcerated. The VOP petition alleged that Landon had violated two conditions of his probation in that he had tested positive for marijuana and he had falsely reported to his probation officer that he had not used drugs or alcohol.

Landon was arraigned on the VOP petition on January 2, 2008—one day before the term of his probation was set to expire. At that appearance, he provided the court and the probation department with the negative result from his independent blood test. He also submitted to a urine test at that time, which was likewise negative for THC. Nevertheless, the VOP proceedings went forward, requiring a number of court appearances during which the terms of his probation were continued. On March 20, 2008, the petition was withdrawn and the proceedings were terminated in Landon’s favor.

Plaintiff commenced this action alleging that Kroll had issued the report reflecting the positive test result both negligently and as part of a policy of deliberate indifference to his rights. The basis for his claim was that the screen test cutoff level employed by Kroll was substantially lower than that recommended by Orasure or by federal standards and that Kroll failed to disclose those differences in its report. As alleged in the complaint, the screen test cutoff level recommended by Orasure is 3.0 ng/ml and the level recommended by the United States Department of Health and Human Services Substance Abuse and Mental Health Services Administration (SAMHSA) is 4.0 ng/ml—both of which are substantially higher than the 1 ng/ml used by Kroll. The complaint further stated that, despite applicable New York State Department of Health Laboratory Standards requiring samples to be subject to confirmatory testing through the use of gas chromatography-mass spectrometry, Landon’s sample was not subject to any type of confirmation test before defendant reported a positive result. In addition, the complaint alleged that proposed revisions to SAMHSA guidelines contemplated requiring the taking of a urine sample, contemporaneous with the oral fluid sample, in order to protect federal workers from inaccurate results. The complaint maintained that Kroll knew of, and failed to disclose, the potential for false positive THC readings when oral fluid samples were tested without a simultaneous urine sample. Moreover, plaintiff alleged that the VOP petition was the result of systemic negligence in Kroll’s substance abuse testing practices. He asserted that he was required to serve an extended term of probation, thereby suffering a loss of freedom, as well as emotional and psychological harm, and monetary loss in the form of attorneys’ fees expended in defense of the VOP petition.

Supreme Court granted Kroll’s motion to dismiss for failure to state a cause of action. The Appellate Division reversed, finding that the complaint stated a cause of action against defendant drug testing laboratory for the negligent testing of plaintiffs biological specimen, notwithstanding the absence of a contractual relationship between the parties (91 AD3d 79 [2d Dept 2011]). The Court recognized the harm that could flow from a false positive test result and reasoned that the laboratory’s duty ran only to a circumscribed category of individuals. The Appellate Division certified the following question for our review: “[w]as the opinion and order of this Court dated November 22, 2011, properly made?” (2012 NY Slip Op 64628[U] [2012].) We answer the certified question in the affirmative.

It is well settled that “[i]n assessing the adequacy of a complaint under CPLR 3211 (a) (7), the court must give the pleading a liberal construction, accept the facts alleged in the complaint to be true and afford the plaintiff the benefit of every possible favorable inference” (J.P. Morgan Sec. Inc. v Vigilant Ins. Co., 21 NY3d 324, 334 [2013] [internal quotation marks and citations omitted]). Whether the plaintiff will ultimately be successful in establishing those allegations “ ‘is not part of the calculus’ ” (see J.P. Morgan, 21 NY3d at 334, quoting EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]).

As a threshold matter, we must determine whether Kroll owed plaintiff a duty of care. We have observed that, “[w]ithout a duty running directly to the injured person there can be no liability in damages, however careless the conduct or foreseeable the harm” (Lauer v City of New York, 95 NY2d 95, 100 [2000]). Here, while there is no contractual relationship between Kroll and Landon, the laboratory does have a contractual relationship with the County for the testing of biological samples.

Although the existence of a contractual relationship by itself generally is not a source of tort liability to third parties, we have recognized that there are certain circumstances where a duty of care is assumed to certain individuals outside the contract (see Espinal v Melville Snow Contrs., 98 NY2d 136, 138-139 [2002]). As relevant here, such a duty may arise “where the contracting party, in failing to exercise reasonable care in the performance of [its] duties, launche[s] a force or instrument of harm” (Espinal, 98 NY2d at 140 [internal quotation marks and citation omitted]). This principle recognizes that the duty to avoid harm to others is distinct from the contractual duty of performance. Accepting the allegations of the complaint as true, Kroll did not exercise reasonable care in the testing of plaintiffs biological sample when it failed to adhere to professionally accepted testing standards and, consequently, released a report finding that plaintiff had tested positive for THC. The alleged harm to plaintiff was not remote or attenuated. Indeed, it was his own biological specimen that was the sole subject of this testing and he was directly harmed by the positive test result causing the extension of his probation and the necessity of having to defend himself in the attendant court proceedings.

Additionally, there are strong policy-based considerations that counsel in favor of finding that Kroll owed a duty to plaintiff under these circumstances. Without question, the release of a false positive report will have profound, potentially life-altering, consequences for a test subject. In particular, here, plaintiff faced the loss of freedom associated with serving an extended period of probation. The laboratory is also in the best position to prevent false positive results. Under the circumstances, we find that Kroll had a duty to the test subject to perform his drug test in keeping with relevant professional standards and that the existence of its contract with the County does not immunize defendant laboratory.

The situation presented here is also distinguishable from that presented in Hall v United Parcel Serv. of Am. (76 NY2d 27 [1990]), where we held that an individual who alleged he was pressured into resigning his employment as the result of a negligently administered polygraph examination did not have a negligence cause of action against the test administrator. We observed that the problem was not the lack of contractual privity between the plaintiff employee and the defendant investigator retained by plaintiffs employer, but rather that plaintiff sought to recover for injury to his reputation—harm that is subject to the heightened standards of a defamation cause of action (see Hall, 76 NY2d at 32-33). We declined to recognize a new cause of action, despite the potential for significant harm flowing from inaccurate test results, in part because the legislature had taken action to regulate the use of such devices (see Hall, 76 NY2d at 34-35). Indeed, Congress had enacted comprehensive legislation regarding the use of polygraph test results (see Hall, 76 NY2d at 35). Under the circumstances, we found no compelling basis to recognize a new tort. Here, by contrast, defendant does not seek to recover for damage to his reputation and there is no apparent statutory remedy for a victim of negligence whose injury was caused by a false positive drug test.

The result we reach today is in keeping with that of several other jurisdictions to recognize a duty in similar circumstances (see e.g. Berry v National Med. Servs., 292 Kan 917, 257 P3d 287 [2011]; Sharpe v St. Luke’s Hosp., 573 Pa 90, 821 A2d 1215 [2003]; Duncan v Afton, Inc., 991 P2d 739 [Wyo 1999]), as well as that of certain federal courts concluding that New York would recognize such a duty (see e.g. Drake v Laboratory Corp. of Am. Holdings, 2007 WL 776818, *2, 2007 US Dist LEXIS 17430, *5 [ED NY, Mar. 13, 2007, No. 02-CV-1924 (FB/RML)], affd 417 Fed Appx 84 [2d Cir 2011]; Coleman v Town of Hempstead, 30 F Supp 2d 356, 365 [ED NY 1999]).

In addition, we reject defendant’s argument that plaintiff failed to allege that he has suffered a cognizable harm (see e.g. Martinez v Long Is. Jewish Hillside Med. Ctr., 70 NY2d 697, 699 [1987] [“where there is a breach of a duty owed by defendant to plaintiff, the breach of that duty resulting directly in emotional harm is actionable”]). In this procedural posture, plaintiffs allegations of the loss of freedom occasioned by the extension of his probation and the resulting emotional and psychological harm are sufficient to withstand a motion to dismiss. Defendant places too much weight upon our recent decision in Dombrowski v Bulson (19 NY3d 347 [2012]), characterizing it as holding that loss of freedom damages are not recoverable in negligence actions. In that case, we found that a legal malpractice action did not lie against a criminal defense attorney to recover nonpecuniary damages. The decision was based in part on policy considerations, including the potentially devastating consequences such liability would have on the criminal justice system and, in particular, the possible deterrent effect it would have on the defense bar concerning the representation of indigent defendants (see Dombrowski, 19 NY3d at 352). Similar policy considerations do not weigh in defendant’s favor here.

Finally, we note that this complaint includes much more than a simple declaration by the plaintiff that he did not use marijuana prior to the Kroll test. Rather, the allegations of a loss of freedom, in conjunction with his particularized claim that he passed two contemporaneous drug screens that utilized proper and scientifically reliable testing protocols, are sufficient to withstand a motion to dismiss. Further, we emphasize the procedural posture—although we find that there is a duty that runs from defendant laboratory to plaintiff and that plaintiff has stated a cause of action, we express no opinion as to the ultimate merits of his claim.

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

Pigott, J.

(dissenting). The majority’s opinion opens the door for probationers, parolees and others who are subject to mandatory drug testing in the criminal justice system, as well as job applicants and others who are subject to drug and alcohol testing, to bring tort actions against independent third-party drug laboratories based upon the results of such testing. Because the majority’s opinion defines duty too broadly, I dissent and would answer the certified question in the negative.

It is the County of Orange that had a contract with defendant Kroll Laboratory Specialists, Inc. to conduct analyses of oral fluid samples of probationers for the presence of illicit and/or controlled substances. Here, a sample was taken from plaintiff by his probation officer and sent to Kroll for screening. Kroll determined that the sample it received contained cannabinoids in an amount exceeding its 1 ng/mL screen test cutoff level as provided by its contract and reported these results to the Probation Department. The Probation Department filed a violation of probation (VOP) petition against plaintiff with the Orange County Court.

There is no relationship between plaintiff and Kroll, contractual or otherwise. Kroll did not know that plaintiff was the person whose sample was being tested, nor did plaintiff know that Kroll was the one doing the test. The control was strictly with the Probation Department that took the actions here, including deciding to file a VOP petition.

Because it is seemingly offended by what occurred here, the majority creates a new cause of action against third-party drug testing laboratories for “negligent testing” (majority op at 3). But the complaint alleges, at most, that Kroll: (a) had a contract with the County; (b) complied with the terms of the contract; and (c) followed its own guidelines in determining that the level of cannabinoids in plaintiffs sample exceeded its cutoff.

Although the complaint takes issue with Kroll’s alleged negligent issuance of the report and “policy of deliberate indifference,” plaintiffs primary complaint is really directed at what the Probation Department chose to do with the Kroll results, even after the Probation Department was presented with the negative results of plaintiffs independent blood test and the urine test ordered by the court. Indeed, it was the Probation Department that, in its discretion, took plaintiffs oral fluid sample, failed to simultaneously take a urine sample, filed the VOP petition and, according to the complaint, “insisted that because of [Kroll’s] positive test report the VOP proceedings continue.” The Probation Department was in the best position—indeed the only one in any position—to determine how the VOP proceedings against plaintiff would be handled, and certainly not Kroll. Thus, in my view, any relief that plaintiff seeks is better directed at the Probation Department rather than an independent drug laboratory like Kroll which, for all intents and purposes, complied with its contractual obligations.

The majority relies on Espinal v Melville Snow Contrs. (98 NY2d 136 [2002]) in support of this new-found “negligent testing” cause of action, stating that Kroll, through its alleged failure to adhere to certain “professionally accepted testing standards” (majority op at 6), “ ‘launched a force or instrument of harm’ ” (Espinal, 98 NY2d at 141, quoting Moch Co. v Rensselaer Water Co., 247 NY 160, 168 [1928]). Forgetting for a moment that such a finding contorts our holding in Espinal beyond its intent, plaintiffs complaint does not even allege that Kroll mishandled, tampered with, improperly collected or misidentified the sample. Moreover, even accepting the allegations in the complaint as true, plaintiff does not deny having any cannabinoids in his system, but only that Kroll utilized a lower cutoff level for cannabinoids than either Orasure Technologies or the United States Department of Health and Human Services Substance Abuse and Mental Health Services Administration’s guidelines use for workplace drug testing—a choice the County made in its contract.

The majority tells us that this “negligent testing” cause of action “is in keeping with that of several other jurisdictions” that have imposed a similar duty (majority op at 7). But certain of the cases upon which the majority relies arise from jurisdictions that utilize the element of foreseeability in determining whether a duty is owed in the first instance (see Berry v National Med. Servs., Inc., 292 Kan 917, 920, 257 P3d 287, 290 [2011]; Sharpe v St. Luke’s Hosp., 573 Pa 90, 96, 821 A2d 1215, 1219 [2003]), whereas under our negligence jurisprudence, foreseeability “determines the scope of the duty once it is determined to exist” (Hamilton v Beretta U.S.A. Corp., 96 NY2d 222, 232 [2001]). Such authority therefore provides no guidance.

The other cases cited by the majority involve specific, narrow allegations of active negligence by the testing laboratory, such as mishandling, misidentifying or improperly collecting the specimen (see Drake v Laboratory Corp. of Am. Holdings, 2007 WL 776818, 2007 US Dist LEXIS 17430 [ED NY, Mar. 13, 2007, No. 02-CV-1924 (FB/RML)], affd 417 Fed Appx 84 [2d Cir 2011] [allegation that the laboratory sent wrong urine sample for testing]; Sharpe, 573 Pa at 92, 821 A2d at 1217 [hospital sued for allegedly mishandling and/or misidentifying urine sample, but the laboratory that performed the testing and reported the results not sued]; Coleman v Town of Hempstead, 30 F Supp 2d 356, 360 [ED NY 1999] [allegation that laboratory failed to safeguard the plaintiff’s urine sample in chain of custody or provide a split sample for retesting]; Duncan v Afton, Inc., 991 P2d 739, 741 [Wyo 1999] [allegation that laboratory erred in collecting the sample]). Moreover, unlike the situation here, all of the aforementioned cases involve employer/employee relationships.

Plaintiff was subjected to mandatory drug testing as part of the terms and conditions of his probation, and the Probation Department had an obligation to ensure that plaintiff was in compliance. Certainly, Orange County had an interest in conducting such testing, and it was the Probation Department’s use, and not Kroll’s, of the results that allegedly caused harm to plaintiff. Moreover, while employees may seek legal redress in the civil courts for any harm caused by inaccurate test results, plaintiff was able to seek relief pursuant to CPL 410.70. He did so in this case, and was eventually successful.

The question whether a laboratory’s alleged mishandling, misidentification or improper collection of a sample will result in a laboratory being answerable in damages on the ground that such alleged misconduct launched a “force or instrument of harm” was, until now, an open one. But because the complaint in this case does not even come close to the allegations made by the test subjects in Drake, Sharpe, Coleman or Duncan, the majority’s “negligent testing” cause of action would certainly encompass those specific, narrow claims where the laboratory actually played a role in bringing about erroneous test results. And, unlike the laboratories in the cases cited by the majority, it is not alleged that Kroll misplaced plaintiffs sample, tested the wrong sample, improperly collected the sample or even reported inaccurate results. Kroll received the sample from the Probation Department, tested it as per its agreement with Orange County and apprised Orange County that the results exceeded its baseline cutoff. At most, the allegations in the complaint attack Kroll’s interpretation of the test results, and not the validity of the sample itself. Thus, even assuming all of the allegations in the complaint are true, Kroll owed no legal duty to plaintiff. If the County of Orange, once sued, chooses to commence a third-party action alleging a contract breach by Kroll, it may do so. But to allow plaintiff to pursue a cause of action in a case such as this opens the door to a host of allegations of a similar nature in areas too numerous to contemplate.

Smith, J.

(dissenting). The law of defamation provides a remedy for people who claim that they have been falsely reported as testing positive for drugs. The remedy is subject to strict limits, but that is as it should be. There is no good reason to invent a new tort. Since plaintiff here has not pleaded a defamation claim—indeed, he sued after the statute of limitations for defamation (CPLR 215 [3]) had run—we should reinstate Supreme Court’s order dismissing the complaint.

In Hall v United Parcel Serv. of Am. (76 NY2d 27 [1990]), the plaintiff claimed that a detective agency had negligently administered a lie detector test, as a result of which the agency falsely reported to the plaintiffs employer that the plaintiff was a thief. We said:

“Injuries to an individual’s personal and professional reputation such as the injuries alleged here have long been compensated through the traditional remedies for defamation. Of course, this plaintiff cannot avail himself of those remedies, since they are circumscribed by rules of qualified privilege that, in closely analogous circumstances, foreclose recovery in the absence of a showing of malice or other culpable conduct beyond the level of ordinary negligence. Plaintiffs recovery thus depends upon our willingness to recognize a new tort cause of action, or to adopt substantial modifications of the existing defamation remedies.” (Id. at 32-33 [citations omitted].)

In Hall, we decided that no new judicially-created remedy was called for. I agree with the majority that Hall does not control this case. In Hall, we observed that there were “serious questions . . . about the accuracy and scientific validity” of lie detector tests (id. at 33), and recognized that “some governmental oversight and regulation may be desirable” (id. at 34). We decided, however, that the problem could be better dealt with by legislative than by judicial action. We relied in part on the existence of extensive federal regulation of lie detectors (id. at 34-36). This line of reasoning does not apply to the case now before us. But I would nevertheless reach the same conclusion here that we reached in Hall, because I see no reason not to apply in cases like this the time-tested rules that govern defamation actions.

It is of course true that someone who is falsely accused of being a drug user may suffer a grievous injury. The law of defamation provides a remedy for that injury, but the remedy is subject to an important limitation known as the “common interest” privilege. That privilege is described in the Restatement (Second) of Torts § 596:

“An occasion makes a publication conditionally privileged if the circumstances lead any one of several persons having a common interest in a particular subject matter correctly or reasonably to believe that there is information that another sharing the common interest is entitled to know.”

Thus, when a speaker talks to those with a “common interest in a particular subject matter” about matters that the speaker “may reasonably believe” the listener is “entitled to know,” the privilege attaches (Peavy v WFAA-TV, Inc., 221 F3d 158, 176 [5th Cir 2000] [discussing Texas law]). We have made clear that New York follows the Restatement rule (Liberman v Gelstein, 80 NY2d 429, 437 [1992]).

As Hall implies, the common interest privilege protects defendants in cases involving the allegedly defamatory reporting of test results (see Chapman v Labone, 460 F Supp 2d 989, 1003 [SD Iowa 2006] [interpreting Iowa law to establish a privilege for a laboratory conducting a random drug test of an employee of Union Pacific Railroad]). The privilege would apply to a defamation suit based on the facts of this case. Kroll was hired by the Probation Department to test whether controlled substances were present in plaintiffs bodily fluids. The Probation Department and Kroll had a common interest in that subject, and the results of the test were plainly information that the Probation Department was entitled to know—indeed Kroll had a duty to provide those results under its contract with the Department (see Stukuls v State of New York, 42 NY2d 272, 279 [1977] [“The (privilege) . . . grew out of the desirability in the public interest of encouraging a full and fair statement by persons having a legal or moral duty to communicate their knowledge and information about a person in whom they have an interest to another who also has an interest in such person”]).

Since the common interest privilege applies, plaintiff could recover for defamation only upon a showing of “malice,” which may be made in either of two ways: by proving that the person who uttered the defamatory statement knew it was false or acted in reckless disregard whether it was false or not (a standard derived from New York Times Co. v Sullivan, 376 US 254, 279-280 [1964]); or by proving that the statement was motivated by spite or ill will (Liberman, 80 NY2d at 437-438). The hurdle is a high one, but it is not insuperable. In Loughry v Lincoln First Bank (67 NY2d 369 [1986]), we upheld a jury verdict finding that fellow employees who accused the plaintiff of being a cocaine user had spoken with malice and that the qualified privilege was thus overcome.

Undoubtedly, most plaintiffs who claim that they were falsely branded as drug users by a testing laboratory will fail to overcome the qualified privilege, and thus will not recover. And plaintiff here might well be unable to win a defamation suit, though his complaint does allege that Kroll was guilty of “a reckless policy or practice of deliberate indifference,” which might be enough to get a defamation complaint past a motion to dismiss. In any event, I see nothing wrong with a rule that bars the great majority of claims based on the reporting of drug tests.

The policy judgment underlying the common interest privilege is that the free flow of information among those with a common interest in a subject should be protected in all but cases of egregious wrongdoing (see Willis v Roche Biomedical Labs., Inc., 61 F3d 313, 316 [5th Cir 1995] [the privilege “advances ‘the need for free communication of information to protect business and personal interests’ ”]). The privilege protects a speaker who is not just gossiping, but is doing a job he or she was hired to do. The application of the privilege to the activities of drug-testing laboratories seems to me wholly justified. Society benefits from facilitating the efforts of law enforcement authorities and employers to detect the use of illicit drugs, and that benefit will be significantly impaired if a firm like Kroll must pay damages to any plaintiff who can persuade a jury that it was negligent in testing him.

The majority makes no attempt to explain why drug testing cases should not be governed by the rules that limit recovery for defamation. The majority says, correctly, that the consequences for a person falsely accused of drug use can be severe (majority op at 6), but that is true of anyone falsely accused of serious misconduct. It has long been the law that, where a common interest privilege applies to the communication in question, the plaintiff, however seriously injured, cannot recover without a showing of malice, and I see no reason to create a new tort that effectively nullifies that rule where the occasion for the suit is a drug test.

Judges Graffeo, Rivera and Abdus-Salaam concur with Chief Judge Lippman; Judge Pigott dissents and votes to reverse in an opinion in which Judge Read concurs; Judge Smith dissents in a separate opinion.

Order affirmed, with costs, and certified question answered in the affirmative.